E. CONFEDERATION AND CONSTITUTION (continued 2)

5. Resd. that a federal judiciary be established to consist of a supreme Tribunal the Judges of which to be appointed by the Executive, and to hold their offices during good behaviour, to receive punctually at stated times a fixed compensation for their services in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution; that the Judiciary so established shall have authority to hear and determine in the first instance on all impeachments of federal officers, and by way of appeal, in the dernier resort, in all cases touching the rights of Ambassadors, in all cases of captures from an enemy, in all cases of piracies and felonies on the high seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for regulation of trade, or the collection of the federal Revenue: that none of the Judiciary shall during the time they remain in Office be capable of receiving or holding any other office or appointment during their time of service, or for —— thereafter.

6. Resd. that all Acts of the U. States in Congs. made by virtue and in pursuance of the powers hereby and by the articles of confederation vested in them, and all Treaties made and ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding; and that if any State or any body of men in any State shall oppose or prevent the carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth the power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts or an Observance of such Treaties.

7. Resd. that provision be made for the admission of new States into the Union.

8. Resd. the rule for naturalization ought to be the same in every State.

9. Resd. that a Citizen of one State committing an offence in another State of the Union, shall be deemed guilty of the sane offence as if it had been committed by a Citizen of the State in which the Offence was committed.

Adjourned

159. Hamilton's Plan

On June 18, Hamilton occupied nearly the whole session with an argument for a government stronger and more centralized even than the Virginia Plan—to meet the advocates of the New Jersey Plan by taking high ground. During this address he presented his own Plan (not what he thought attainable, but desirable). The paper given below (from Hamilton's Works, Federalist edition, I, 401 ff.) seems to have been prepared to assist the delivery of this address, as a sort of brief. The address itself is reported by Madison (Journal, for June 18) much more at length, but with many of the same phrases. The student would do well to compare the two. Copious extracts from that speech, and from other words of Hamilton in the Convention, are quoted in American History and Government, § 200.

All communities divide themselves into the few and the many. The first are the rich and well-born; the other, the mass of the people. ... The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class [the few] a distinct permanent share in the government. They will check the unsteadiness of the second; and, as they cannot receive any advantage by a change, they therefore will ever maintain good government. ... Nothing but a permanent body can check the imprudence of democracy. Their turbulent and uncontrollable disposition requires checks....

It is admitted that you cannot have a good Executive upon a democratic plan. See the excellency of the British Executive. He is placed above temptation. He can have no distinct interests from the public welfare. Nothing short of such an executive can be efficient. ... Let one body of the Legislature be constituted during good behavior or life. Let one Executive be appointed who dares execute his powers. It may be asked: Is this a republican system? It is strictly so, as long as they remain elective. And let me observe that an Executive is less dangerous to the liberties of the people when in office during life, than for seven years. ... Let electors be appointed in each of the States to elect the Legislature, to consist of two branches; and I would give them [the national legislature] the unlimited power of passing all laws, without exception. The Assembly to be elected for three years by the people in districts. The Senate to be elected by electors to be chosen for that purpose by the people, and to remain in office during life. The Executive to have the power of negativing all laws; to make war and peace, with their [Senate's] advice, but to have sole direction of all military operations, and to send ambassadors, and appoint all military officers; and to pardon all offenders, treason excepted, unless by advice of the Senate ... Supreme judicial officers to be appointed by the Executive and the Senate.

The Legislature to appoint courts in each State, so as to make the State governments unnecessary to it. All state laws which contravene the general laws to be absolutely void. An officer to be appointed in each State to have a negative on all State laws. ...

160. Character Sketches of Delegates by William Pierce

Records of the Federal Convention, III, 87 ff.

Pierce was a delegate from Georgia. It is not known just when he composed these sketches.

From New Hampshire.

Mr. Langdon is a man of considerable fortune....

From Massachusetts.

Rufus King, Natl. Gorham, Gerry and Jno. [Caleb] Strong Esquires.

Mr. King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Massachusetts and is said to have good classical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Countrymen. This Gentleman is about thirty three years of age, about five feet ten Inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming and graceful, but there is a rudeness of manner sometimes accompanying it. But take him tout en semble, he may with propriety be ranked among the Luminaries of the present Age.

Mr. Gorham is a Merchant in Boston....

Mr. Gerry's character is marked for integrity and perseverance. He is a hesitating and laborious speaker;—possesses a great degree of confidence and goes extensively into all subjects that he speaks on, without respect to elegance or flower of diction. He is connected and sometimes clear in his arguments, conceives well, and cherishes as his virtue, a love for his Country. Mr. Gerry is very much of a Gentleman in his principles and manners;—he has been engaged in the mercantile line and is a Man of property. He is about 37 years of age.

From Connecticut.

Saml. Johnson, Roger Sherman, and W. [Oliver] Elsworth Esquires.

Mr. Sherman exhibits the oddest shaped character I ever remember to have met with. He is awkward, un-winning, and unaccountably strange in his manner. But in his train of thinking there is something regular, deep and comprehensive; yet the oddity of his address, the vulgarisms that accompany his public speaking, and that strange New England cant that runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;—and yet he deserves infinite praise,—no Man has a better Heart or a clearer Head. If he cannot embellish he can furnish thoughts that are wise and useful. He is an able politician and extremely artful in accomplishing any particular object;—and it is remarked that he seldom fails. I am told he sits on the bench in Connecticut, and is very correct in the discharge of his Judicial functions. In the early part of his life he was a Shoe-maker;—but despising the lowness of his condition, he turned Almanack maker, and so progressed upwards to a Judge. He has been several years a Member of Congress, and discharged the duties of his Office with honor and credit to himself, and advantage to the State he represented. He is about 60.

Mr. Elsworth is a Judge of the Supreme Court in Connecticut;—he is a Gentleman of a clear, deep, and copious understanding; eloquent, and connected in public debate; and always attentive to his duty. He is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,—in order to take off the force of them, so as to admit the power of his own. Mr. Elsworth is about 37 years of age, a Man much respected for his integrity, and venerated for his abilities.

From New York.

Alexander Hamilton, [Robert] Yates, and W. [John] Lansing Esquires.

Colo. Hamilton is deservedly celebrated for his talents. He is a practitioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;—it is my opinion that he is rather a convincing Speaker, that [than] a blazing Orator. Colo. Hamilton requires time to think,—he enquires into every part of his subject with the searchings of philosophy, and when he comes forward he comes highly charged with interesting matter. There is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.—His language is not always equal, sometimes didactic like Bolingbroke's at others light and tripping like Stern's. His eloquence is not so diffusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreeable.

Mr. Yates is said to be an able Judge. He is a Man of great legal abilities, but not distinguished as an Orator. Some of his Enemies say he is an anti-federal Man, but I discovered no such disposition in him. He is about 45 years old, and enjoys a great share of health.

Mr. Lansing is a practicing Attorney at Albany, and Mayor of that Corporation. He has a hesitation in his speech, that will prevent his being an Orator of any eminence;—his legal knowledge I am told is not extensive, nor his education a good one. He is however a Man of good sense, plain in his manners, and sincere in his friendships. He is about 32 years of age.

From New Jersey.

Wm. Livingston, David Brearly, Wm. Patterson, and Jonn. Dayton, Esquires.

Governor Livingston is confessedly a Man of the first rate talents, but he appears to me rather to indulge a sportiveness of wit, than a strength of thinking. He is however equal to anything, from the extensiveness of his education and genius. His writings teem with satyr and a neatness of style. But he is no Orator, and seems little acquainted with the guiles of policy. He is about 60 years old, and remarkably healthy.

Mr. Brearly is a man of good, rather than of brilliant parts. He is a Judge of the Supreme Court of New Jersey, and is very much in the esteem of the people. As an Orator he has little to boast of, but as a Man he has every virtue to recommend him. Mr. Brearly is about 40 years of age.

M. Patterson is one of those kind of Men whose powers break in upon you, and create wonder and astonishment. He is a Man of great modesty, with looks that bespeak talents of no great extent,—but he is a Classic, a Lawyer, and an Orator;—and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. He is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. This Gentleman is about 34 years of age, of a very low stature.

Capt. Dayton is a young Gentleman of talents, with ambition to exert them. He possesses a good education, and some reading; he speaks well, and seems desirous of improving himself in Oratory. There is an impetuosity in his temper that is injurious to him; but there is an honest rectitude about him that makes him a valuable Member of Society, and secures to him the esteem of all good Men. He is about 30 years old, served with me as a Brother Aid to General Sullivan in the Western expedition of '79.

From Pennsylvania.

Benja. Franklin, Thos. Mifflin, Robt. Morris, Geo. Clymer, Thomas Fitzsimmons, Jared Ingersol, James Wilson, Governeur Morris.

Dr. Franklin is well known to be the greatest philosopher of the present age;—all the operations of nature he seems to understand,—the very heavens obey him, and the Clouds yield up their Lightning to be imprisoned in his rod. But what claim he has to the politician posterity must determine. It is certain that he does not shine much in public Council,—he is no Speaker, nor does he seem to let politics engage his attention. He is, however, a most extraordinary Man, and tells a story in a style more engaging that anything I ever heard. Let his Biographer finish his character. He is 82 years old, and possesses an activity of mind equal to a youth of 25 years of age.

Robert Morris is a merchant of great eminence and wealth; an able Financier, and a worthy Patriot. He has an understanding equal to any public object, and possesses an energy of mind that few Men can boast of. Although he is not learned, yet he is as great as those who are. I am told that when he speaks in the Assembly of Pennsylvania, that he bears down all before him. What could have been his reason for not Speaking in the Convention I know not,—but he never spoke on any point. This Gentleman is about 50 years of age....

Mr. Fitzsimmons is a Merchant of considerable talents....

Mr. Ingersol is a very able Attorney, and possesses a clear legal understanding. He is well educated in the Classics and is a Man of very extensive reading. Mr. Ingersol speaks well, and comprehends his subject fully. There is a modesty in his character that keeps him back. He is about 36 years old.

Mr. Wilson ranks among the foremost in legal and political knowledge. He has joined to a fine genius all that can set him off and show him to advantage. He is well acquainted with Man, and understands all the passions that influence him.

Government seems to have been his peculiar Study, all the political institutions of the World he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the Grecian commonwealth down to the present time. No man is more clear, copious, and comprehensive than Mr. Wilson, yet he is no great Orator. He draws the attention not by the charm of his eloquence, but by the force of his reasoning. He is about 45 years old.

Mr. Governeur Morris is one of those Genius's in whom every species of talents combine to render him conspicuous and flourishing in public debate:—He winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away the senses of all who hear him. With an infinite stretch of fancy he brings to view things when he is engaged in deep argument, that render all the labor of reasoning easy and pleasing. But with all these powers he is fickle and inconstant,—never pursuing one train of thinking,—nor ever regular. He has gone through a very extensive course of reading, and is acquainted with all the sciences. No Man has more wit,—nor can any one engage the attention more than Mr. Morris. He was bred to the Law, but I am told he disliked the profession, and turned merchant. He is engaged in some great mercantile matters with his namesake Mr. Robt Morris. This Gentleman is about 38 years old, he has been unfortunate in losing one of his Legs, and getting all the flesh taken off his right arm by a scald, when a youth.

From Delaware.

John Dickinson, Gunning Bedford, Geo: Richd. Bassett, and Jacob Broom Esquires.

Mr. Dickinson has been famed through all America, for his Farmers Letters; he is a Scholar, and said to be a Man of very extensive information. When I saw him in the Convention I was induced to pay the greatest attention to him whenever he spoke. I had often heard that he was a great Orator, but I found him an indifferent Speaker. With an affected air of wisdom he labors to produce a trifle,—his language is irregular and incorrect,—his flourishes (for he sometimes attempts them), are like expiring flames, they just shew themselves and go out;—no traces of them are left on the mind to chear or animate it. He is, however, a good writer and will ever be considered one of the most important characters in the United States. He is about 55 years old, and was bred a Quaker.

Mr. Bedford was educated for the Bar, and in his profession I am told has merit. He is a bold and nervous Speaker, and has a very commanding and striking manner;—but he is warm and inpetuous in his temper, and precipitate in his judgment. [Cf. No. 161.] Mr. Bedford is about 32 years old, and very corpulent.

From Maryland.

Luther Martin, Jas. McHenry, Daniel of St. Thomas, Jenifer, and Daniel Carrol Esquires.

Mr. Martin was educated for the Bar, and is Attorney general for the State of Maryland. This Gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him. He is about 34 years of age.

Mr. Jenifer is a Gentleman of fortune....

Mr. Carroll is a Man of large fortune....

From Virginia.

Genl. Geo. Washington, Geo. Wythe, Geo. Mason, Jas. Maddison Jr. Jno. Blair, Edmd. Randolph, and James McLurg.

Mr. Mason is a Gentleman of a remarkable strong powers, and possesses a clear and copious understanding. He is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America. Mr. Mason is about 60 years old, with a fine strong constitution.

Mr. Maddison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho' he cannot be called an Orator, he is a most agreable, eloquent, and convincing Speaker. From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union. He has been twice a Member of Congress, and was always thought one of the ablest Members that ever sat in that Council. Mr. Maddison is about 37 years of age, a Gentleman of great modesty,—with a remarkable sweet temper. He is easy and unreserved among his acquaintances, and has a most agreable style of conversation.

Mr. Blair is one of the most respectable Men in Virginia both on account of his Family as well as his fortune....

Mr. Randolph is Governor of Virginia,—a young Gentleman in whom unite all the accomplishments of the Scholar, and the States-man. He came forward with the postulata or first principles, on which the Convention acted, and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners. Mr. Randolph is about 32 years of age.

North Carolina.

Wm. Blount, Richd. Dobbs Spaight, Hugh Williamson, Wm. Davey, and Jno. [Alexander] Martin Esquires.

Mr. Blount is a character strongly marked for integrity and honor. He has been twice a Member of Congress, and in that office discharged his duty with ability and faithfulness. He is no Speaker, nor does he possess any of those talents that make Men shine;—he is plain, honest, and sincere. Mr. Blount is about 36 years of age.

Mr. Spaight is a worthy Man, of some abilities, and fortune. Without possessing a Genius to render him brilliant, he is able to discharge any public trust that his Country may repose in him. He is about 31 years of age....

South Carolina.

Jno. Rutledge, Chs. Cotesworth Pinckney, Charles Pinckney, and Pierce Butler Esquires.

Mr. Rutledge is one of those characters who was highly mounted at the commencement of the late revolution; his reputation in the first Congress gave him a distinguished rank among the American Worthies. He was bred to the Law, and now acts as one of the Chancellors of South Carolina. This Gentleman is much famed in his own State as an Orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable Orator. He is undoubtedly a man of abilities, and a Gentleman of distinction and fortune. Mr. Rutledge was once Governor of South Carolina. He is about 48 years of age.

Mr. Chas. Cotesworth Pinckney is a Gentleman of Family and fortune....

Mr. Charles Pinckney is a young Gentleman of most promising talents. He is, altho only 24 years of age, in possession of a very great variety of knowledge. Government, Law, History, and Philosophy are his favorite studies, but he is intimately acquainted with many species of polite learning....

For Georgia.

Wm. Few, Abraham Baldwin, Wm. Pierce, and Wm. Houstoun Esqrs.

Mr. Few possesses a strong natural Genius, and from application has acquired some knowledge of legal matters; and he practices at the bar of Georgia, and speaks tolerably well in the Legislature. He has been twice a Member of Congress, and served in that capacity with fidelity to his State, and honor to himself. Mr. Few is about 35 years of age.

Mr. Baldwin is a Gentleman of superior abilities, and joins in a public debate with great art and eloquence. Having laid the foundation of a compleat classical education at Harvard College, he pursues every other study with ease. He is well acquainted with Books and Characters, and has an accommodating turn of mind, which enables him to gain the confidence of Men, and to understand them. He is a practicing Attorney in Georgia, and has been twice a Member of Congress. Mr. Baldwin is about 38 years of age.

Mr. Houstoun is an Attorney at Law. ... He is a Gentleman of Family, and was educated in England. As to his legal or political knowledge, he has very little to boast of. Nature seems to have done more for his corporeal than mental powers. His person is striking....

161. One Day in the Philadelphia Convention

Madison's Journal. The day chosen was the closing day of debate on the "Connecticut Compromise" proposition, when the Convention came near disruption. For the narrative, cf. American History and Government, § 203.

Saturday, June 30th

In Convention,—Mr. Brearly [New Jersey][153] moved that the President write to the Executive of New Hampshire, informing it that the business depending before the Convention was of such a nature as to require the immediate attendance of the Deputies of that State. In support of his motion, he observed that the difficulties of the subject, and the diversity of opinions called for all the assistance we could possibly obtain. (It was well understood that the object was to add New Hampshire to the number of States opposed to the doctrine of proportional representation, which it was presumed, from her relative size, she must be adverse to.)

Mr. Patterson [New Jersey] seconded the motion.

Mr. Rutledge [South Carolina] could see neither the necessity nor propriety of such a measure. They are not unapprised of the meeting, and can attend if they choose.

Rhode Island might as well be urged to appoint and send deputies. Are we to suspend the business until the Deputies arrive? If we proceed, he hoped all the great points would be adjusted before the letter could produce its effect.

Mr. King [Massachusetts] said he had written more than once as a private correspondent, and the answer gave him every reason to expect that State would be represented very shortly, if it should be so at all. Circumstances of a personal nature had hitherto prevented it. A letter could have no effect.

Mr. Wilson [Pennsylvania] wished to know, whether it would be consistent with rule or reason of secrecy, to communicate to New Hampshire that the business was of such a nature as the motion described. It would spread a great alarm. Besides he doubted the propriety of soliciting any State on the subject, the meeting being merely voluntary.

On motion of Mr. Brearly.

New York, New Jersey, aye—2; Massachusetts, Connecticut, Virginia, North Carolina, South Carolina, no—5; Maryland divided; Pennsylvania, Delaware, Georgia, not on the floor.

The motion of Mr. Ellsworth being resumed, for allowing each State an equal vote in the second branch,—[154]

Mr. Wilson did not expect such a motion after the establishment of the contrary principle in the first branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the first branch. The gentleman from Connecticut (Mr. Ellsworth) had pronounced, that if the motion should not be acceded to, of all the States north of Pennsylvania one only would agree to any General Government. He entertained more favourable hopes of Connecticut and of the other Northern States. He hoped the alarms exceeded their cause, and that they would not abandon a country to which they were bound by so many strong and endearing ties. But should the deplored event happen, it would neither stagger his sentiments nor his duty. If the minority of the people of America refuse to coalesce with the majority on just and proper principles; if a separation must take place, it could never happen on better grounds. The votes of yesterday against the just principle of representation were as twenty-two to ninety of the people of America. Taking the opinions to be the same on this point, and he was sure, if there was any room for change, it could not be on the side of the majority, the question will be, shall less than one-fourth of the United States withdraw themselves from the Union, or shall more than three-fourths renounce the inherent, indisputable and unalienable rights of men, in favor of the artificial system of States? If issue must be joined, it was on this point he would choose to join it. The gentleman from Connecticut, in supposing that the preponderance secured to the majority in the first branch had removed the objections to an equality of votes in the second branch for the security of the minority, narrowed the case extremely. Such an equality will enable the minority to control, in all cases whatsoever, the sentiments and interests of the majority. Seven States will control six: seven States, according to the estimates that had been used, composed twenty-four ninetieths of the whole people. It would be in the power, then, of less than one-third to overrule two-thirds, whenever a question should happen to divide the States in that manner....

Mr. Ellsworth. The capital objection of Mr. Wilson, "that the minority will rule the majority," is not true. The power is given to the few to save them from being destroyed by the many. If an equality of votes had been given to them in both branches, the objection might have weight. Is it a novel thing that the few should have a check on the many? Is it not the case in the British Constitution, the wisdom of which so many gentlemen have united in applauding? Have not the House of Lords, who form so small a proportion of the nation, a negative on the laws, as a necessary defence of their peculiar rights against the encroachments of the Commons? No instance of a confederacy has existed in which an equality of voices has not been exercised by the members of it. We are running from one extreme to another. We are razing the foundations of the building, when we need only repair the roof. No salutary measure has been lost for want of a majority of the States to favor it. If security be all that the great States wish for, the first branch secures them. The danger of combinations among them is not imaginary. Although no particular abuses could be foreseen by him the possibility of them would be sufficient to alarm him. But he could easily conceive cases in which they might result from such combinations. Suppose, that, in pursuance of some commercial treaty or arrangement, three or four free ports and no more were to be established, would not combinations be formed in favor of Boston, Philadelphia, and some port of the Chesapeake? A like concert might be formed in the appointment of the great offices. He appealed again to the obligations of the Federal compact [Articles of Confederation] in force, and which had been entered into with so much solemnity; persuading himself that some regard would still be paid to the plighted faith under which each State, small as well as great, held an equal right of suffrage in the general councils. His remarks were not the result of partial or local views. The State he represented (Connecticut) held a middle rank.

Mr. Madison did justice to the able and close reasoning of Mr. Ellsworth, but must observe that it did not always accord with itself. On another occasion, the large States were described by him as the aristocratic States, ready to oppress the small. Now the small are the House of Lords, requiring a negative to defend them against the more numerous Commons. Mr. Ellsworth had also erred in saying that no instance had existed in which confederated states had not retained to themselves a perfect equality of suffrage. Passing over the German system, in which the King of Prussia has nine voices, he reminded Mr. Ellsworth of the Lycian confederacy, in which the component members had votes proportioned to their importance, and which Montesquieu recommends as the fittest model for that form of government. Had the fact been as stated by Mr. Ellsworth, it would have been of little avail to him, or rather would have strengthened the arguments against him; the history and fate of the several confederacies, modern as well as ancient, demonstrating some radical vice in their structure. In reply to the appeal of Mr. Ellsworth to the faith plighted in the existing federal compact, he remarked, that the party claiming from others an adherence to a common engagement, ought at least to be guiltless itself of a violation. Of all the States, however, Connecticut was perhaps least able to urge this plea. Besides the various omissions to perform the stipulated acts, from which no State was free, the Legislature of that State had, by a pretty recent vote, positively refused to pass a law for complying with the requisitions of Congress, and transmitted a copy of the vote to Congress.[155] It was urged, he said, continually, that an equality of votes in the second branch was not only necessary to secure the small, but would be perfectly safe to the large ones; whose majority in the first branch was an effectual bulwark. But notwithstanding this apparent defence, the majority of States might still injure the majority of the people. ... He admitted that every peculiar interest, whether in any class of citizens or any description of States, ought to be secured as far as possible. Wherever there is danger of attack, there ought to be given a constitutional power of defence. But he contended that the States were divided into different interests, not by their difference of size, but other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small States. It lay between the Northern and Southern. ...

Mr. Ellsworth assured the House, that, whatever might be thought of the Representatives of Connecticut, the State was entirely Federal in her disposition. He appealed to her great exertions during the war, in supplying both men and money. The muster-rolls would show she had more troops in the field than Virginia.[156] If she had been delinquent, it had been from inability, and not more so than other States.

Mr. Sherman. Mr. Madison animadverted on the delinquency of the States, when his object required him to prove that the constitution of Congress was faulty. Congress is not to blame for the faults of the States. Their measures have been right, and the only thing wanting has been a further power in Congress to render them effectual.

Mr. Davie [North Carolina] was much embarrassed, and wished for explanations. The Report of the Committee [of the Whole], allowing the Legislatures to choose the Senate, and establishing a proportional representation in it, seemed to be impracticable. There will, according to this rule, be ninety members in the outset, and the number will increase as new States are added. It was impossible that so numerous a body could possess the activity and other qualities required in it. Were he to vote on the comparative merits of the Report, as it stood, and the amendment, he should be constrained to prefer the latter. ... Under this view of the subject, he could not vote for any plan for the Senate yet proposed. He thought that, in general, there were extremes on both sides. We were partly federal, partly national, in our union; and he did not see why the Government might not in some respects operate on the States, in others on the people.

Mr. Wilson admitted the question concerning the number of Senators to be embarrassing. If the smallest States be allowed one, and the others in proportion, the Senate will certainly be too numerous. He looked forward to the time when the smallest States will contain a hundred thousand souls at least. Let there be then one Senator in each, for every hundred thousand souls, and let the States not having that number of inhabitants be allowed one. He was willing himself to submit to this temporary concession to the small States; and threw out the idea as a ground of compromise....

Doctor Franklin. The diversity of opinions turns on two points. If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger. When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. In like manner, here, both sides must part from some of their demands, in order that they may join in some accommodating proposition. He had prepared one which he would read, that it might lie on the table for consideration. The proposition was in the words following:

"That the Legislatures of the several States shall choose and send an equal number of delegates, namely ..., who are to compose the second branch of the General Legislature.

"That in all cases or questions wherein the sovereignty of individual States may be affected, or whereby their authority over their own citizens may be diminished, or the authority of the General Government within the several States augmented, each State shall have equal suffrage.

"That in the appointment of all civil officers of the General Government, in the election of whom the second branch may by the constitution have part, each State shall have equal suffrage.

"That in fixing the salaries of such officers, and in all allowances for public services, and generally in all appropriations and disposition of money to be drawn out of the general Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the sums which their respective States do actually contribute to the Treasury."

Where a ship had many owners, this was the rule of deciding on her expedition. He had been one of the ministers from this country to France during the joint war, and would have been very glad if allowed to vote in distributing the money to carry it on.

Mr. King observed, that the simple question was, whether each State should have an equal vote in the second branch; that it must be apparent to those gentlemen who liked neither the motion for this quality, nor the Report as it stood, that the Report was as susceptible of melioration as the motion; that a reform would be nugatory and nominal only, if we should make another Congress of the proposed Senate; that if the adherence to an equality of votes was fixed and unalterable, there could not be less obstinacy on the other side; and that we were in fact cut asunder already, and it was in vain to shut our eyes against it. That he was, however, filled with astonishment, that, if we were convinced that every man in America was secured in all his rights, we should be ready to sacrifice this substantial good to the phantom of State sovereignty. That his feelings were more harrowed and his fears more agitated for his country than he could express; that he conceived this to be the last opportunity of providing for its liberty and happiness: that he could not, therefore, but repeat his amazement, that when a just government, founded on a fair representation of the People of America, was within our reach, we should renounce the blessing, from an attachment to the ideal freedom and importance of States. That should this wonderful illusion continue to prevail, his mind was prepared for any event, rather than sit down under a Government founded on a vicious principle of representation, and which must be as short-lived as it would be unjust. He might prevail on himself to accede to some such expedient as had been hinted by Mr. Wilson; but he never could listen to an equality of votes, as proposed in the motion.

Mr. Dayton. When assertion is given for proof, and terror substituted for argument, he presumed they would have no effect, however eloquently spoken. It should have been shown that the evils we have experienced have proceeded from the equality now objected to; and that the seeds of dissolution for the State Governments are not sown in the General Government. He considered the system on the table [Virginia Plan] as a novelty, an amphibious monster; and was persuaded that it never would be received by the people.

Mr. Martin [Maryland] would never confederate, if it could not be done on just principles [i.e., giving small States equal voice in at least one House].

Mr. Madison would acquiesce in the concession hinted by Mr. Wilson, on condition that a due independence should be given to the Senate. The plan in its present shape makes the Senate absolutely dependent on the States. The Senate, therefore, is only another edition of Congress. He knew the faults of that body, and had used a bold language against it. Still he would preserve the State rights as carefully as the trial by jury.

Mr. Bedford [Delaware] contended, that there was no middle way between a perfect consolidation, and a mere confederacy of the States. The first is out of the question; and in the latter they must continue, if not perfectly, yet equally, sovereign. If political societies possess ambition, avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? Will not the same motives operate in America as elsewhere? If any gentleman doubts it, let him look at the votes. Have they not been dictated by interest, by ambition? Are not the large States evidently seeking to aggrandize themselves at the expense of the small? They think, no doubt, that they have right on their side, but interest has blinded their eyes. Look at Georgia. Though a small State at present, she is actuated by the prospect of soon being a great one. South Carolina is actuated both by present interest, and future prospects. She hopes, too, to see the other States cut down to her own dimensions. North Carolina has the same motives of present and future interest. Virginia follows. Maryland is not on that side of the question. Pennsylvania has a direct and future interest. Massachusetts has a decided and palpable interest in the part she takes. ... The three large States have a common interest to bind them together in commerce. But whether a combination, as we supposed, shall take place among them, in either case the small States must be ruined. We must, like Solon, make such a government as the people will approve. Will the smaller States ever agree to the proposed degradation of them? It is not true that the people will not agree to enlarge the powers of the present Congress. The language of the people has been, that Congress ought to have the power of collecting an impost, and of coercing the States where it may be necessary. On the first point they have been explicit, and, in a manner, unanimous in their declarations. And must they not agree to this, and similar measures, if they ever mean to discharge their engagements? The little States are willing to observe their engagements, but will meet the large ones on no ground but that of the Confederation. We have been told, with dictatorial air, this is the last moment for a fair trial in favor of a good government. It will be the last, indeed, if the propositions reported from the Committee go forth to the people. He was under no apprehensions. The large States dare not dissolve the Confederation. If they do, the small ones will find some foreign ally, of more honour and good faith, who will take them by the hand, and do them justice. He did not mean, by this, to intimidate or alarm. It was a natural consequence, which ought to be avoided by enlarging the Federal powers, not annihilating the Federal system. This is what the people expect. All agree in the necessity of a more efficient government, and why not make such an one as they desire?

Mr. Ellsworth. Under a National Government, he should participate in the national security, as remarked by Mr. King; but that was all. What he wanted was domestic happiness. The National Government could not descend to the local objects on which this depended. It could only embrace objects of a general nature. He turned his eyes, therefore, for the preservation of his rights, to the State Governments. From these alone he could derive the greatest happiness he expects in this life. His happiness depends on their existence, as much as a new-born infant on its mother for nourishment. If this reasoning was not satisfactory, he had nothing to add that could be so.

Mr. King was for preserving the States in a subordinate degree, and as far as they could be necessary for the purposes stated by Mr. Ellsworth. He did not think a full answer had been given to those who apprehended a dangerous encroachment on their jurisdictions. ... He could not sit down without taking some notice of the language of the honorable gentleman from Delaware (Mr. Bedford). It was not he [King] that had uttered a dictatorial language. This intemperance had marked the honorable gentleman himself. It was not he [King] who, with a vehemence unprecedented in that House, had declared himself ready to turn his hopes from our common country, and court the protection of some foreign hand. This, too, was the language of the honorable member himself. He was grieved that such an expression had dropped from his lips. The gentleman could only excuse it to himself on the score of passion. For himself, whatever might be his distress, he would never court relief from a foreign power.

Adjourned.

[The vote, taken on the opening of the next session, is recorded as follows:

"In Convention,—On the question for allowing each State one vote in the second branch, as moved by Mr. Ellsworth, it was lost, by an equal division of votes,—Connecticut, New York, New Jersey, Delaware, Maryland, aye—5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, no—5; Georgia, divided (Mr. Baldwin aye, Mr. Houston, no)."

This was a tie, intentionally made so by the Georgia delegate who voted last. For this and for the final victory of the "Compromise," cf. American History and Government, § 203.]

FOOTNOTES:

XXVIII. RATIFYING THE CONSTITUTION[157]

162. George Mason's Objections to the Constitution, 1787

Kate Mason Rowland's Life of George Mason (1892), II, 387-390.

Mason had been one of the most enthusiastic of the Philadelphia Convention in its early stages, writing to his son, after a few weeks, that he would "bury my bones in Philadelphia" rather than injure the business by leaving prematurely, though his private affairs were pressing. But he was more democratic than the Convention, and, before its close, he came to look upon the results with suspicion. He refused to sign the completed constitution, and afterward he opposed its ratification in Virginia. Mason was the chief author of the Virginia Bill of Rights of 1776 (No. 136 above). Cf. also No. 163.

There is no Declaration of Rights, and, the laws of the general government being paramount to the laws and constitution of the several States, the Declaration of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.

In the House of Representatives there is not the substance but the shadow only of representation; which can never produce proper information in the legislature, or inspire confidence in the people; the laws will therefore be generally made by men little concerned in, and unacquainted with their effects and consequences.

The Senate have the power of altering all money bills, and of originating appropriations of money, and the salaries of the officers of their own appointment, in conjunction with the president of the United States, although they are not the representatives of the people or amenable to them.

These with their other great powers (viz.: their power in the appointment of ambassadors and all public officers; in making treaties, and in trying all impeachments; their influence upon and connection with the supreme Executive from these causes; their duration of office and their being a constantly existing body, almost continually sitting; joined with their being one complete branch of the legislature) will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.

The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor.

The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country. From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme Executive.

Hence also sprung that unnecessary officer the Vice-President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers, besides always giving to some one of the States an unnecessary and unjust preeminence over the others.

The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.

By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.

By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose produce and circumstances are totally different from that of the eight Northern and Eastern States, may be ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern and Eastern States not only to demand an exorbitant freight, but to monopolize the purchase of the commodities at their own price, for many years, to the great injury of the landed interest, and impoverishment of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the other. Whereas requiring two-thirds of the members present in both Houses would have produced mutual moderation, promoted the general interest, and removed an insuperable objection to the adoption of this government.

Under their own construction of the general clause, at the end of the enumerated powers,[158] the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.

There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace.

The State legislatures are restrained from laying export duties on their own produce.

Both the general legislature and the State legislature are expressly prohibited making ex post facto laws; though there never was nor can be a legislature but must and will make such laws, when necessity and the public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.

This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.

The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years; though such importations render the United States weaker, more vulnerable, and less capable of defence.

163. Mason's Explanation of the Preparation of his "Objections" (and Accusation of "Railroading" through the Plan of the Majority)

George Mason to Thomas Jefferson [in France]

Records of the Federal Convention, III, 304-305.

Virginia, Gunston Hall, May 26, 1788.

I make no Doubt that You have long ago received Copies of the new Constitution. ... Upon the most mature consideration I was capable of, and from Motives of sincere Patriotism, I was under the Necessity of refusing my Signature, as one of the Virginia Delegates; and drew up some general Objections; which I intended to offer, by way of Protest; but was discouraged from doing so, by the precipitate and intemperate, not to say indecent, Manner, in which the Business was conducted during the last week of the Convention, after the Patrons of this New Plan formed they had a decided Majority in their Favour: which was obtained by a Compromise between the Eastern and the two Southern States, to permit the latter to continue the Importation of Slaves for twenty odd years; a more favorite Object with them than the Liberty and Happiness of the People.

164. An Unfriendly Account of Hancock's Support of the Constitution in the Massachusetts Ratifying Convention of 1788

Writings of Laco, VII, 23 ff. (a series of "Letters" published by Stephen Higginson and other Federalists, in 1789, to defeat Hancock in his candidacy for reëlection to the governorship). Higginson was a Boston merchant, and a leading Federalist. The "plan" he refers to as placed in Hancock's hands, favored the adoption of the Constitution with a list of amendments to be adopted later by the new government.

There are men in every free society, who have not a common interest with the community at large; and who rely wholly on the popular affection in their favour, to give them promotion and support in publick life. ... Without abilities to make them really useful in publick life, and devoid of principles or merits that can command respect, they have no dependence but upon popular attention to bring them into view; and, having been long attentive to the popular pulse, and always acquainted with the darling object with the multitude for the time, they rarely fail to touch the right string, and to make the people subserve their own selfish and private views. ... There cannot be found within the compass of our memory, an instance, so strongly verifying the preceding observation, as that of Mr. H. and his adhering dependents....

... The course of his conduct from his reassuming the chair, to the meeting of our State Convention, for considering and adopting the new form of government for the Union, was nothing more than a renewed exhibition of the same levities, and a uniform preference of his own private interest, to that of the public.

A scene now opens upon us, very interesting and important:—The objects which [were] then presented for our consideration, were so novel, and of such magnitude, as deservedly engrossed the feelings and the attention of every man. No one could remain mute and indifferent, while the question as to the New Constitution was pending; and every one, who felt no other bias than a regard to the safety and happiness of our country, ... was most anxiously solicitous for its adoption. But the popular demagogues, and those [who] were very much embarrassed in their affairs, united to oppose it with all their might; and they laboured incessantly, night and day, to alarm the simple and credulous, by insinuating, that, however specious its appearance, and that of its advocates, tyranny and vassalage would result from its principles. The former of those descriptions were conscious, that a stable and efficient government would deprive them of all future importance, or support from the publick; and the latter of them knew, that nothing but weakness and convulsions in government could screen them from payment of their debts. How far Mr. H. was influenced by either, or both of those motives, it is not easy to determine; but no one, who recollects his general habits, who knows his situation and views, and was acquainted with the open conversation and conduct of his cabinet counsellors, can have a doubt of his being opposed to it. We all know, that Mr. Quondam, and Mr. Changeling, as well as the once venerable old Patriot [Samuel Adams], who, by a notable defection, has lately thrown himself into the arms of Mr. H. in violation of every principle; and for the paltry privilege of sharing in his smiles, has, at the eve of life, cast an indelible stain over his former reputation—it is well known, I say, that these men do not dare to speak in publick a language opposite to that of their patron; and it is equally notorious, that they were open in their opposition to the Constitution—They even went so far as to vilify its compilers, that they might thence draw an argument to support their suggestions of its containing the seeds of latent tyranny and oppression. They endeavoured by every possible mean in their power, to create a popular clamour against the Constitution; but they failed in their attempt; and Mr. H. and his friends were obliged, upon their own principles to grow more cautious in their opposition. The good sense of the Mechanicks of Boston had produced some manly and spirited resolutions, which effectually checked Mr. H. and his followers in their opposition to the Constitution; and eventually occasioned four votes in its favour, which otherwise would have been most certainly against it. Had those resolutions not made their appearance, Mr. H. and three others of our Delegates would have been in the negative; but it was thought necessary by them, after they had appeared, to vote in favour of it. Having settled this point, the next thing was to do it with a good grace, and to profit as much by it as they could; and Mr. H. accordingly intimated to the advocates for the adoption, that he would appear in its favour, if they would make it worth his while. This intimation was given through a common friend, who assured the friends of the Constitution, that nothing more would be required on the part of Mr. H. than a promise to support him in the chair at the next election. This promise, though a bitter pill, was agreed to be given; for such was the state of things, that they were very much afraid to decide upon the question, whilst he was opposed to it. The famous conciliatory proposition of Mr. H. as it was called, was then prepared by the advocates, and adopted by him; but the truth is, he never was consulted about it, nor knew its contents, before it was handed to him to bring forward in Convention. At the appointed time, Mr. H. with all the parade of an Arbiter of States, came out with the motion, not only in the words, but the very original paper that was given him; and, with a confidence astonishing to all who were in the secret, he called it his own, and said it was the result of his own reflections on the subject, in the short intervals of ease which he had enjoyed, during a most painful disorder. In this pompous and farcical manner did he make that famous proposition, upon which he and his adherents have arrogated so much; but neither he nor they have any other merit in the case, than an attempt to deceive both parties can fairly entitle them. For, at the very time he was buoying up the hopes of the advocates, he was assuring the opposers of the Constitution, by his emissaries, that he was really adverse to it; and upon the strictest scrutiny we cannot find that any one vote was gained by his being ostensibly in favour of it. The votes of the Old Patriot, and Mr. Changeling, and Mr. Joyce, jun. we know were determined in its favour by the resolutions of the Mechanicks; but the votes of many others, who used implicitly to follow Mr. H. were in the negative, which were counted upon by the friends of the Constitution, as being certain on their side. This is a strong confirmation that Mr. H. was then playing a game, which these people well understood; and indeed they, some of them, explicitly declared it at the time. His subsequent conduct, in regard to amendments, is a clear proof also, that by appearing in its favour in Convention, he did not mean to support it; and that he was not serious when he declared his proposition to be only conciliatory, and not to remedy any defects existing in his mind in the constitution as reported, which he explicitly declared at the time was the case.

165. The Federal Constitution

Recommended by the Philadelphia Convention to the States, September 17, 1787; ratified by the ninth State, June 21, 1788; in effect, April 30, 1789 (American History and Government, §§ 210, 212). The text is that authorized by the Department of State and printed in the Revised Statutes (1878), except for the footnote references and the brackets used in a few instances to inclose portions of the document no longer effective, and for the omission of numbers for the paragraphs. Interpolated explanatory matter is in the same type as this paragraph, and is placed within marks of parenthesis.

We the People[159] of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare,[160] and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for electors of the most numerous Branch of the State Legislature.[161]

No Person shall be a Representative who shall not have attained to the Age of twenty five-Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers [which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years], and excluding Indians not taxed, [three fifths of all other Persons].[162] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.[163] The number of Representatives shall not exceed one for every thirty Thousand,[164] but each State shall have at Least one Representative; [and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three].

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen [by the Legislature thereof],[165] for six Years; and each Senator shall have one Vote.

[Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year], so that one third may be chosen every second Year;[166] and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they[167] be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

Section 4. The Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.[168]

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section 5. Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.[169] They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance of the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.[170]

Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections, to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.[171]

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;[172] but all Duties, Imposts, and Excises shall be uniform throughout the United States;

To borrow Money on the Credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization,[173] and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and rebel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper[174] for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9. [The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.]

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct,[175] Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.[176]

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.[177]

(Exercise on Article One.—Are the names in Section 1 new in American history? Can Congress constitutionally provide for woman suffrage by law? If a Senator from your State were to die to-morrow, how would his place be filled? Would it have been filled differently, if it had happened at any other time during the year? How long would the new Senator keep his seat? (The same questions as to a Representative.) How many Representatives has your State? When did it last gain or lose one? How many has the largest State in the Union (cf. World Almanac)? How many has the smallest State? Do you need a World Almanac to answer the last question? Under what possible conditions can the presiding officer of the Senate vote even when there is no tie? With what provision in Section 9 is the last paragraph of Section 3 logically connected? If a Representative utters plain treason on the floor of the House, can he be punished? How? Commit to memory Section 8. Make two questions upon naturalization and citizenship, based upon the note on page 556. Write appropriate headings for each section; e.g., for Section 8, "Powers of Congress.")

ARTICLE II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.][178]

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.[179]

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.[180]

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States."

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,[181] and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate,[182] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4. The President, Vice President, and all civil Officers of the United States shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.

ARTICLE III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens or another State;[183]—between Citizens of different States,—between Citizens of the same State claiming lands under Grants of different States,—and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.[184]

(On the appellate jurisdiction, cf. American History and Government, §§ 207 a and 217. Section 25 of the Judiciary Act of 1789, still in force, defines that jurisdiction as follows:

"And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, when is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or when is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or when is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, especially set up or claimed ... under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and revised or affirmed in the Supreme Court of the United States upon a writ of error. ..."

On the establishment of "inferior courts," cf. American History and Government, § 217. Such courts at present (1913) are from the bottom up:—

1. District Courts. Over ninety in 1911; the law of 1789 provided for thirteen.

2. Circuit Courts. Nine, each three justices. The first law, 1789, provided three circuit courts, but no special circuit judges; a circuit court then consisted of a justice of the Supreme Court "or circuit" and one or more judges of district courts included within the circuit. This remained the rule with a brief attempt at change in 1801, as described in § 240, until 1866, when separate circuit justices were provided.

3. Circuit Courts of Appeals. One for each of the nine circuits, composed of a justice of the Supreme Court and of other Federal judges—not less than three in all, and not including any justice from whose decision the appeal is taken. This order of courts was instituted in 1891, to relieve the Supreme Court which was then hopelessly overburdened with appeals from lower courts. In most cases, now, the decision of the circuit court of appeals is final.

4. The Supreme Court. One Chief Justice and eight Associate Justices. Its business now is confined very largely to those supremely important matters specified in the Constitution and in the law of 1789 quoted above.

There are also three special courts, somewhat outside this system: (1) the Federal Court of Claims, to determine money claims against the United States, established in 1855; (2) Court of Customs Appeals, established in 1909; and (3) the Commerce Court, created in 1910, to revise the work of the Interstate Commerce Commission.)

ARTICLE IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceeding of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and immunities of Citizens in the several States.[185]

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

[No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on claim of the Party to whom such Service or Labour may be due.][186]

Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to[187] the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLE V[188]

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided [that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and] that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

ARTICLE VI

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[189]

The Senators and Representatives before mentioned, and the Members of the several State Legislatures and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

(Exercise.—Write headings for each Article in the Constitution. Restate Sections 1 and 2 of Article IV in form appropriate for insertion in Section 10 of Article I. Cf. with corresponding provisions in the Articles of Confederation and in the Constitution of the New England Confederation. Can you restate Sections 3 and 4 so as to fit them for insertion under any preceding Article? Observe that Articles I, II, III, and V give the framework. Article VII, highly important at the time, had but temporary significance.)

AMENDMENTS

[i][190]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[ii]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

[iii]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by Law.

[iv]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[v]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[vi]

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

[vii]

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

[viii]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[ix]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[x][191]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

[xi][192]

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.