GIFT OF MICHAEL REESE Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/evolutionofconstOOkassrich THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND HISTORY OF THE MONROE DOCTRINE '^ f ^ESEUI^ or THE or THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND HISTORY OF THE MONROE DOCTRINE BY JOHN A. KASSON, LL.D. / or THE UNIVERSITY BOSTON AND NEW YORK . HOUGHTON, MIFFLIN AND COMPANY 1904 (\^ 1'^ PiESE Published Novemhtr iqo4 PREFACE The following story of the Evolution of the Constitution of the United States of Amer- ica was originally written by request of the Constitutional Centennial Commission, under whose auspices the first centennial of its for- mation was celebrated at Philadelphia in 1887, in presence of representatives of the States and of the Nation. The first edition was pub- lished as a part of the two memorial volumes, in large octavo and fully illustrated, in a form and at a cost which precluded popular circula- tion. That edition was soon exhausted, and only occasionally can a copy be now obtained at any price. Some desire has been expressed by its readers for a new edition adapted to more general circulation among the people, and especially for the use of students of consti- tutional law. It is to meet this requirement that the present edition has been prepared, after revision and some slight additions to the text. But there has been no departure from the original plan. This embraced a clear but condensed recital i-i> vi PREFACE of the conditions preliminary to the " Confed- eracy ; " a statement of the infirmities and in- effectiveness of the Articles of Coft/ederatiofi, upon which the founders sought in vain to build a practical government; its entire failure as a national bond, and the recognition of that failure by the patriots of the Revolution ; the successive steps by which they sought the con- sent of the States to a general convention to provide a substitute government ; and finally, the manner in which they accomplished the organization of a nation. The leading con- tested clauses of the Constitution are consid- ered separately, and the great points of the debate connected with each are given. Thus a very clear light is thrown upon the object and scope of each important section of the Consti- tution, and its true interpretation is greatly facilitated, and in most cases assured. This edition is submitted to public consid- eration in the hope that it will be found not only interesting to the lover of history, but especially useful to the busy man in public life, in and out of Congress, who has no time for elaborate research ; and to the students of pub- lic law in the universities, colleges, and law schools of the country. PREFACE vii The Author also ventures to hope that a clearer and more widely diffused knowledge of the great intellectual struggle which cul- minated in the adoption of the Constitution will stimulate popular devotion to its princi- ples, and a loving loyalty to this sovereign Charter of our American liberty. We recall with glowing gratitude the virtues of our great ancestors who founded the government, and of whose labors we have inherited the splendid fruits. The habit of liberty and the long usage of prosperity have always a tendency to deaden our remembrance of the greatness of the Act which inaugurated both, and which still pre- serves them to us. Let not the lapse of time banish the memory of our mighty fathers, to whose persistent courage, wisdom, and patience we owe our rich political inheritance. They won it in the storm of battle, and through the tedious trials of self-sacrifice. They rescued it from anarchy, bankruptcy, disorder, and dis- cords, which more than a century ago had brought upon our loosely confederated States the pity of their friends and the disdain of their foes. The vital forces which this consti- tutional union created gave to our country the purer breath of a national life, and the senti- viii PREFACE ment of national honor. The Union supple- mented the weakness of each with the strength of all. Instead of sectional banners stained with repudiation and local greed, this consti- tutional Union gave to the whole country a single flag, destined to unsurpassed respect among the nations of the earth. Year after year we add new stars to its folds as peacefully as appears a new star in the heavens from which we borrowed them. Surely a system of government which has established the essential liberties of the people under the orderly limitations of fundamental law, and which has approved itself to succes- sive generations by an unparalleled experience of national growth, prosperity, and happiness under its provisions, will never cease to be a most interesting study alike for statesmen and students. That part of American foreign policy known as the Monroe Doctrine has acquired so much authority, both at home and abroad, that its in- fluence over our people and their representative statesmen has become almost equal to that of a provision of the national Constitution. I have therefore added to this volume a history of the PREFACE ix origin and development of that Doctrine, mainly derived from the original records on file in the Department of State at Washington. John A. Kasson. Washington, October i, 1904. CONTENTS Pagbs I INTRODUCTORY 3-5 II. THE PRELIMINARIES OF THE CON- FEDERACY 6-17 New England plan (1643). Penn's plan (1697). Franklin's plan (1750). Otis's proposition (1764). Continental Congress (12 Colonies) (i774)« Hawley's plan (1775). Paine's plan (1776). Colonial Congress (1776). DECLARATION OF INDEPENDENCE Was national act of the whole, not an act of the several Colonies. No one Colony separately independent. This Declaration only national bond until Articles of Confederation were accepted by the last State (1781). Washington's lament. No real central government. Demands for a stronger government. Congress not vested with sufficient power. Confederation finally ratified. xu CONTENTS III THE ARTICLES OF CONFEDERA- TION, 1781 18-25 Provisions of the Compact. Causes of its weakness. IV PRELIMINARIES OF THE CONSTI- TUTIONAL CONVENTION OF 1787 26-52 Washington's demand for more power in Congress. Reluctance of States to grant it. Conditions growing worse under the Con- federation. New York in favor of a new Convention of States (July, 1782). Virginia's adverse action and its effects. Washington's circular letter to the States. Infirm and dissolving Congress (1784). 1785 a year of disaster to industry and com- merce. Disorderly financial system in States, and unjust laws. Convention of five States at Annapolis (1786). Deplorable condition of the people. Annapolis recommendation of general Con- vention of all States to be held at Phila- delphia approved by Congress. Action thereon by the States. General demoralization of political con- duct. CONTENTS xiii THE CONSTITUTIONAL CONVEN- TION 53-72 The character of its members. Roll of delegates present. Their origin and character. Sessions secret, and why. ' Virginia's plan. Individual schemes. Schemes of New Jersey and Connecticut. Plan of Virginia in detail. Plan of Connecticut in detail. Plan of New Jersey in detail. Fundamental division in Convention for a National or Federal Government. The former prevails. VI THE DEBATE ON THE LEGISLA- TIVE ORGANIZATION . . . 73^1 To consist of two Houses. How to be chosen. Arguments of different statesmen. Discordant demands, apparently irreconcil- able. Committee of conciliation. The old States fear future new States. VII THE DEBATE ON THE JUDICIAL ORGANIZATION 92-95 Appointment and removal of judges. Extent of jurisdiction. Trial of impeachments. xiv CONTENTS VIII ORGANIZATION OF THE EXECU- TIVE POWER 9^113 Election of the Chief Executive by Legisla- ture, or by Electors, or by Governors of States ? Should the authority be vested in a single or plural Executive ? Discordant views, also, as to removability, responsibility to Legislature, term of office, and veto power. Question of ineligibility to a second term. How removable for misconduct. Result of the protracted debate. IX OTHER SPECIAL PROVISIONS OF THE CONSTITUTION . . .114-198 The questions of fundamental principle settled. The Committee of Detail appointed. Report of form of Constitution and detail. Its characteristics. Votes on different clauses. Who should be qualified voters. Ratio of representation. Washington's only participation in debate. Congress to control national elections. Debate on national control of militia. A Council of State proposed. Jurisdiction over sumptuary laws. Jurisdiction of treason. The war power. CONTENTS XV Question of power over corporations and internal improvements. The trial of impeachments. Control of congressional elections. Compensation of members of Congress. Question of taxing exports. Debate on the regulation of foreign and in- terstate commerce. Taxation of commerce for protection or for revenue ? Debate on bills of credit and legal-tender money. POWER TO MAKE TREATIES AND THEIR FORCE Various depositories of this power proposed. Question of requiring ratification of treaties by law. The House of Representatives excluded from participation by vote of ten States to one. Question of majority of senators required to ratify. President Washington's construction of the treaty-making power, the House of Re- presentatives excluded. Decision of Supreme Court — Treaties may supersede prior laws, and laws may super- sede prior treaties. RIGHT TO ORIGINATE MONEY BILLS Effort to confine revenue and appropria- tions to House of Representatives. Distinction between revenue and appropri- ation bills. Exclusive right of House of Representa- tives limited to revenue bills. ji CONTENTS ADMISSION OF NEW STATES Fear of influence of new States in the West. Limitations proposed to preserve control of old States in Congress. Number admitted to be limited. To impose conditions on admission. Final conclusion. NATIONAL CONTROL OVER STATES Right to negative state laws. Proposal of Virginia. Right to use national force against States. Resolution to declare laws of the Union supreme and to use militia to enforce them. GUARANTEE OF REPUBLICAN FORM OF GOVERN- MENT TO THE STATES AND AGAINST INSUR- RECTION Debate. Conclusion. MODE OF RATIFICATION OF THE CONSTITUTION By the state legislatures, or by the people ? The fundamental question again. The debate and decision. Number of States required to ratify. OATHS OF STATE OFFICERS TO SUPPORT THE CONSTITUTION The debate and the motive. SIGNATURE AND PUBLICATION OF CONSTITUTION Final effort to amend the final draft. " Shall the Constitution as amended be adopted ? " CONTENTS xvii A solemn moment. Desire for unanimity in signature. Franklin's appeal. Three members present refuse to sign. Letter accompanying its transmission to the States through the Confederate Con- gress. Hostility in the Congress. Transmission to the States. THE ACTION OF THE STATES IN RATIFICATION 199-206 The two questions. Activity of enemies of Constitution. Leaders on both sides enter contest. Votes of the different States. Action of Virginia and New York. XI SEQUEL OF AMENDMENTS . . .207-212 Twelve Amendments proposed by the first Congress. Ten of them adopted by ten States. Eleventh Amendment (proposed by third Congress) dilatorily adopted by vote of twelve States (1798). Twelfth Amendment adopted (1804). Thirteenth, Fourteenth, and Fifteenth Amendments adopted (1865, 1866, 1870). Varying tide of public opinion. Conclusion. xviii CONTENTS APPENDIX RIGHT OF HOUSES OF CONGRESS TO REQUIRE FROM THE EX- ECUTIVE DOCUMENTS OR INFORMATION ? 215-220 HISTORY OF THE MONROE DOC- TRINE 221-273 I. The History of the Monroe Dec- laration OF 1823 223 II. The Monroe Doctrine in Later Years 249 THE EVOLUTION OF THE UNITED STATES CONSTITUTION THE EVOLUTION OF THE UNITED STATES CONSTITUTION INTRODUCTORY The political debates of the present genera- tion leave a painful impression of the neglect of constitutional study. A failure to appre- hend the reasons upon which constitutional provisions were founded has too frequently led astray the public judgment. In this neg- lect numerous theories of construction have found their source, which in turn have led to additional debate, until the public records of discussion on constitutional questions have be- come a massive collection, which obscures, far more than it enlightens, the popular mind. In politics, as in religion, the commentaries have superseded the authority, as they have dark- ened the simplicity, of the original text. It has become a duty of patriotism to awaken the spirit of constitutional inquiry, emancipated from the prejudices of party. The existing histories of the Constitution, and the legal commentaries upon it, afford am- 4 EVOLUTION OF THE CONSTITUTION pie material for forming a correct judgment But, unfortunately for the general public, they are too voluminous or too expensive for the attainment of a wide circulation among the people. The Constitutional Centennial Com- mission, therefore, thought it wise to add to their work commemorating the great anniver- sary a condensed history of that instrument, which even the busy American people may find time to read. They especially appeal to the youth and to the young manhood of the country, now pre- paring in the schools and universities for the higher duties and functions of citizenship, to abandon the study of the superficial theories of modern party politics for the nobler study and profounder thoughts of our constitutional Fathers, — the creators of our free and power- ful government and the founders of a republic which in a single century has advanced to the foremost rank of nations. The present union of the States, for which the Fathers so long struggled against recipro- cal fears and jealousies, and amidst clashing interests, will be perfected in proportion as we agree in our appreciation of the Constitution which created and preserves it. All vigorous and harmonious national life demands some object of common reverence and devotion. In monarchical countries this INTRODUCTORY 5 object is the Crown, or the person on whose head it rests. In our republic no living Presi- dent, accepted or rejected as he is by a varying majority and at frequent intervals, can ever become the object of general and concentrated respect and affection. It is the great Charter bequeathed to us by our Fathers, and that alone, which can give to our whole country its central object of obedience and reverence, — an object which shall rise above all the chan- ging purposes and alliances of the passing hour. It stands supreme, above us all, ruling our rulers and receiving their oath-bound allegi- ance. It is surrounded by many guards against the assaults of transient human passion and the aggression of man's selfish ambitions. It rises imperially above the Congress, the Courts, and the President. It was living before we came, it will live after we depart. There it stands, and is ordained to remain, immovable, unchangeable, save in accordance with the laws of its own life, grand in its simplicity, majestic in its power. To this only Sovereign of our jurisdiction and Lord Protector of our rights and liberties our allegiance and our devo- tion are worthily consecrated. May the youth of our time, when they shall be seated in the places of trust and authority, show themselves the enlightened and willing servants of this immortal Sovereign. II THE PRELIMINARIES OF THE CONFEDERACY The Act which was signed at Philadelphia on September 17, 1787, was not so much a sudden creation, an inspired fact of that memorable year, as it was a logical growth out of many years of thoughtful and painful experience. The principles of that nationalized union which the Constitution accomplished had al- ready been stirring in the breasts of the wise and the patriotic for three generations. As far back as 1643, ^^^^ weak colonies in New England combined in a union for their defence against all common dangers, and provided for its continuance by a common parliament. In 1697, William Penn proposed an annual " con- gress," consisting of two delegates from each colony. They were to have power to provide ways and means for supporting their union, maintaining their common safety, and regu- lating their commerce. In 1754, Franklin prepared a plan for the union of the col- onies, with a triennial legislature, and a gov- ernor-general to be appointed by the English government. Each colony was to retain the control of its exclusively domestic affairs. A PRELIMINARIES OF THE CONFEDERACY 7 decade later, James Otis, in the Massachusetts Assembly, pronounced for an American con- gress in such emphatic tones that delegates from nine of the colonies were induced to assemble in New York in 1765, to consider their common interests and to protest against imperial taxation. The activity of British parliamentary aggres- sion increased. In like proportion the spirit of American union became more active ; and in 1774 the delegates from the inhabitants of twelve colonies met, as a Continental Congress, for the protection of their common rights. The conception of a continental, or American, union and legislature was becoming more and more familiar to the people. In 1775, Joseph Hawley proposed an annual parliament with two Houses. In January, 1776, there appeared a pam- phlet from the hand of Thomas Paine, in which he advocated with all the vigor and terseness of his unsurpassed rhetoric a more resolute advance. " Let a continental confer- ence be held," said he, " to frame a continental charter, drawing the line of business and juris- diction between members of Congress and members of Assembly, always remembering that our strength and happiness are conti- nental, not provincial. . . . We have every opportunity and every encouragement to form 8 EVOLUTION OF THE CONSTITUTION the noblest, purest Constitution on the face of the earth." The convention which he pro- posed for this end was to consist of two mem- bers for each corporate colony, chosen by its legislature, like senators in the present Congress; two more to be chosen by the Colonial Congress out of each colonial dele- gation; and a larger number to be chosen directly by the people, like the present House of Representatives. Six months later the Colonial Congress, in which now all the thirteen colonies were repre- sented, denounced the dominion of England, and declared their own complete and final independence. In discussing the nature of our union of States, whether perpetual or dissoluble at the will of its members, the disputants have not attached sufficient significance to this great act of the 4th of July, 1776. It was not a declaration of independence by each separate colony as a distinct civil corpo- ration. It was a joint and national act, the act of " ONE PEOPLE, to dissolvc the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them." The colonies, separately, did not proclaim their independence nor claim among the powers of PRELIMINARIES OF THE CONFEDERACY 9 the earth a separate and equal station. It was a united national act which dissolved all their provincial obligations. " We, therefore, the re- presentatives of the United States of Amer- ica, in general Congress assembled, ... do, in the name, and by the authority of the good PEOPLE of these colonies, solemnly publish and declare " freedom, independence, and the abso- lution of allegiance to the British crown, with " power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States may of right do." All these rights and powers were declared to be in the " United," not the indi- vidual. States. This conception of their act frequently ap- pears in the debates of the Constitutional Convention and in later debates. In the South Carolina Legislature, in i y88y on the question of calling a convention to ratify the new Union, one of their most notable statesmen, Charles Cotesworth Pinckney, speaking of the Decla- ration of Independence, said : " This admirable manifesto sufficiently refutes the doctrine of the individual sovereignty and independence of the several States. . . . The separate inde- pendence and individual sovereignty of the several States were never thought of by the enlightened band of patriots who framed this Declaration. The several States are not even 10 EVOLUTION OF THE CONSTITUTION mentioned by name in any part. . . . Let us then consider all attempts to weaken this union, by maintaining that each State is separately and individually independent, as a species of political heresy which can never benefit us, but may bring on us the most serious distresses." An argument and a prophecy in one statement. The Declaration formed the only constitu- tion or written bond of the independent United States until the last State ratified the Articles of Confederation, March i, 1781. But the colonies, now States, did not pro- ceed upon that theory of united rights to its logical result of fortifying the central author- ities. Having a history of both separate and joint resistance to a common sovereign in England, they were jealous of any centralized power which was not aimed sharply and di- rectly against the military power from which they sought deliverance. Some of them, being more liable to invasion and plunder than others, were unwilling even to allow central control of the military forces and operations. Communi- cations with many of the colonies were limited and difficult, and personal knowledge of lead- ers insufficient to secure confidence. Military organization was everywhere local. Local jeal- ousies were easily inflamed, and personal ambi- tions were abundant. Local appeals to protect home interests only were largely effective in PRELIMINARIES OF THE CONFEDERACY ii closing the eyes of the people to the greater proposition, that local interests could only be permanently protected by a common devotion to the general and united interests. They could not understand that a central power, located in Philadelphia or Annapolis, could watch equally well the coasts of Rhode Island and of Vir- ginia, or apply equally just regulations of com- merce to New York and South Carolina. The obstacles to the creation of an effective legis- lative and executive power over all the States were enormous, and appeared insurmountable. While their independence was national, their personal aspirations were still provincial. They could not agree upon the terms of a league or confederation. Congress had proposed Articles of Confederation, vesting very limited, but in- herent, powers in Congress, in 1777. But the war was nearly over before their acceptance by all the States. The primary cause of this delay is to be found in the fact that Congress was not elected by the people. Its members were simple dele- gates of the provincial authority, and revocable at will, like diplomatic agents. They had no inherent authority. The strongest and ablest men remained largely at home, preferring the dignity of the controlling authority in the State to that of a subordinate agent at Philadelphia. 12 EVOLUTION OF THE CONSTITUTION Washington made urgent appeals on this subject, especially to his friends in Virginia. He wrote to George Mason in 1779: "I can- not refrain lamenting in the most poignant terms the fatal policy, too prevalent in most of the States, of employing their ablest men at home in posts of honor or profit till the great national interest is fixed upon a solid basis. . . . Where are our men of abilities ? Why do they not come forth to save our country ? Let this voice, my dear sir, call upon you, Jefferson, and others." He had before appealed to Harrison, Wythe, Nicholas, Pendleton, and Nelson " not to be satisfied with places in their own State while the com- mon interests of America were mouldering and sinking into irretrievable ruin, but to attend to the momentous concerns of an empire." Nothing shows more conclusively than these touching appeals from the great heart of Washington that the separate colonial States did not yet grasp the idea of a great conti- nental nation. The union had become for them an organism designed only to establish the independence of the individual States. Their vision was checked by the boundary-hne defined in their colonial charter. They saw not yet the finger of God pointing to a grand, united people, spanning the continent with a PRELIMINARIES OF THE CONFEDERACY 13 supreme and powerful central government, protecting popular liberty, securing personal rights, and symbolized by a starry flag with which the world should have none to compare, so radiant with hope, so illustrious in peace, and so bright with promise to mankind. In the mean time Congress remained a mere adviser of the States. It could only recommend measures which the States had the liberty to adopt or reject, in whole or in part. Congress had become a beggar at their doors. Nothing is so difficult to persuade as the surrender of power by its possessors. The States were in fact assuming a sovereign power, and could not be induced to transfer it voluntarily to another authority. The force of adversity, even of necessity, was required to convince them that only by the surrender of a part could they possess the benefits of the whole. The leaders of the patriotic movement soon became convinced that no combination of a central government could be accomplished through the action or the recommendation of that Amphictyonic Council, styled a Congress. Mr. Edward Rutledge, as early as August, 1776, suggested to Robert R. Livingston the appointment by the States of a new and spe- cial Congress for the purpose of organizing a confederation. There does not appear any 14 EVOLUTION OF THE CONSTITUTION encouraging echo to this proposition, from any authoritative quarter, until four years later. Meantime Congress struggled along as best it could, directing warlike and diplomatic oper- ations through its committees, and always subject to the changing will of the several States, and to their refusal or neglect of the duties required of them for the general wel- fare. The difficulties of the situation became more and more apparent as the war dragged its weary course, and complaints against the army, as well as coming from the army, were heard. In 1 780, the four New England States gave expression to their impatience over the intolerable condition of central affairs by meet- ing in convention at Boston, in the month of August. They demanded a substantial union, with a visible head, and a Congress " compe- tent for the government of all those common and national affairs which do not nor can come within the jurisdiction of the particular States." They invited their own States and New York, with all others disposed to come, to meet in convention at Hartford. The follow- ing month Governor Clinton recommended the acceptance of the invitation, saying, " Our embarrassments in the prosecution of the war are chiefly to be attributed to a defect of power in those who ought to exercise a supreme juris- diction ; for while Congress only recommends. PRELIMINARIES OF THE CONFEDERACY 15 and the different States deliberate upon the propriety of the recommendation, we cannot expect a union of force or council." Philip Schuyler, supported by the Senate, responded in words the truth of which has been strongly reinforced at a later period of our history: " We perceive the defects of the present sys- tem, and the necessity of a supreme and COERCIVE POWER in the government of these States ; and are persuaded that, unless Con- gress are authorized to direct uncontrollably the operations of war, and enabled to enforce a compliance with their requisitions, the com- mon force can never be properly united." Hamilton demanded more emphatically an im- mediate convention, with full authority to set up a vigorous confederation. General Greene also expressed the feeling of the army when he wrote to a Congressional delegate, " Call a convention of the States, and establish a Con- gress upon a constitutional footing." The Hartford Convention assembled in November, New York only being present with the Eastern States. Their resolutions were not only patriotic, but statesmanlike. After adopt- ing propositions to strengthen the public credit, they agreed upon a communication to be ad- dressed to all the States. Experience had by this time clearly shown that the merely recom- mendatory powers of Congress were wholly i6 EVOLUTION OF THE CONSTITUTION insufficient They must be changed to man- datory. " All government supposes the power of coercion," they said ; " this power, however, never did exist in the general government of the continent, or has never been exercised. . . . The States, individually considered, while they endeavor to retain too much of their independ- ence, may finally lose the whole. . . . We shall be without a solid hope of peace and freedom unless we are properly cemented among our- selves." An account of all their proceedings was transmitted to Congress, and to General Washington, as well as to all their sister States. The patriotic earnestness of this convention appears to have at last moved the diverse minds towards greater union and a stronger central power. Their report was read in open Con- gress in December, and referred to a com- mittee which embraced some of the strongest members. Pennsylvania and New Jersey gave further evidence of a desire to increase the powers of Congress. Finally, on March i, 1781, amid expressions of general satisfaction, the last signature was affixed to the Articles of Confederation, in the presence of Congress. In view of their rati- fication, Mr. Duane, of New York, wrote: " Let us devote this day to joy and congratu- lation, since by the accomplishment of our PRELIMINARIES OF THE CONFEDERACY 17 federal union we are become a nation. In a political view it is of more real importance than a victory over all our enemies." The final ratification was formally announced to the several States, and to diplomatic agents abroad for the information of friendly foreign govern- ments. As we now read these Articles, we are amazed that they should have been the sub- ject of congratulation, as if they were the com- pletion of the work of national organization. Yet it is only by an appreciation of the pat- riotic gratification then expressed over that narrow grant of national power that we can understand the extent of the reluctance of the States, particularly of the delinquent States, to surrender for the general welfare the least share of their newly-acquired independence. Time, discussion, experience, personal associa- tion, all were needed as ripening influences for the real constitution and union which were still in the bud, and still exposed to many dangers of cold and heat. On all affairs of serious im- port each State would fain reserve a power of veto. Local fear and jealousy lurked in every paragraph of this frail bond. A review of the powers which it refused, or closely limited, will disclose to us the unhappy condition in which it left a struggling but hopeful nation. in THE ARTICLES OF CONFEDERATION, 1781 Each State retained "every power, jurisdiction, and right not expressly delegated." By this they prohibited all development induced by the logic of events and by the necessities of inevitable growth. The States agreed to defend each other against any attack made upon them, under whatever pretence. The free inhabitants of one State were to have equal privileges of movement, trade, etc., in all other States, subject only to the prevail- ing conditions of local citizens. Each State was to have one vote, and a number of delegates not less than two nor more than seven, all maintained at the expense of the State sending them, and prohibited from receiving any salary or emolument from the United States, even if administering an office under them. The delegates were to be an- nually appointed, and revocable at the will of the State. They were to meet in Congress on the first Monday of November of each year. The sixth article prohibited each State from any alliance, treaty, or confederation with each THE ARTICLES OF CONFEDERATION 19 other, or with a foreign State, without consent of Congress, and from laying any duties incon- sistent with the treaties then in negotiation with France and Spain. Commercial regula- tion and imposts and duties remained within the power of each State. The several States retained the right to issue letters of marque and commissions to vessels of war, after war should have been declared. But the power to make war and peace was vested in Congress. Taxes for war-charges and for the common expenses were to be laid and levied by the in- dividual States in their respective proportions, without power in Congress to enforce or inter- fere with their collection. The United States could make no treaty of commerce which should restrain a State from prohibiting the exportation or importation of any goods or commodities whatever. The States retained the power to coin money, while granting the same power to Congress ; but Congress might regulate the alloy and value. The States retained power also to ap- point the regimental officers in the army of the United States. The plan of the confederation contemplated a government of national affairs by special committees of Congress. It could appoint one of its own members to preside ; but so jealous 20 EVOLUTION OF THE CONSTITUTION were they of the semblance of a single execu- tive that they limited his service to one year, and made him then ineligible for the two years following, ignoring all the benefits of personal experience in affairs, even in time of war. Having enumerated the narrow powers which Congress might exercise, they put upon that body the following further limitation : — " The United States in Congress assembled shall never engage in a war ; nor grant letters of marque and reprisal in time of peace ; nor enter into any treaties or alliances; nor coin money ; nor regulate the value thereof ; nor as- certain the sums and expenses necessary for the defence and welfare of the United States or any of them; nor emit bills; nor borrow money on the credit of the United States; nor appropriate money ; nor agree upon the num- ber of vessels of war to be built or purchased, or the number of land or sea forces to be raised ; nor appoint a commander-in-chief of the army or navy ; unless nine States assent to the same." This required a majority of two thirds for any of these acts. The consent of nine of the thirteen States was required to vest any power in the Gen- eral Committee of Thirteen, authorized to sit in the recess of Congress ; and even then no power could be delegated to this committee which was enumerated in the Articles as spe- THE ARTICLES OF CONFEDERATION 21 cially requiring the assent of nine States for its valid exercise. The Articles further declared that "the Union shall be perpetual ; " and styled the compact, " Articles of Confederation and Per- petual Union." No amendment could be made except by agreement of Congress, with the ratification of every State. Each State bound itself to abide by the decisions of the Congress in all matters submitted to their jurisdiction by the Articles of Confederation. This "firm league of friendship" between the States was reported from a committee on July 12, 1776, and was under debate from time to time for two years. At the date of July 9, 1 778, only ten States had ratified it. And when Maryland completed the ratification, in March, 1 78 1, these Articles represented the entire progress of the country towards a solid union during the five years of experience of war and weakness and inefficiency of the government. Justice demands of history some explanation of this unsatisfactory result, which shall be consistent with the undoubted patriotism and the unquestioned intellectual ability of the statesmen of that time. The colonies were originally established under the control of different political and reli- gious ideas, and their immigration was from variant nationalities. The New England colo- 22 EVOLUTION OF THE CONSTITUTION nies were of more uniform composition than any other group. Protestant individuality and sturdy personal independence were there most emphasized. Commerce became their control- ling interest. The town-meeting, the common school, the church-meeting, and the militia formed the foundation of their social organiza- tion. The popular elements in New York were largely of Dutch origin, not given to enthusi- asm, not sympathetic, but tenacious of opinion and of property interests. There were found large agricultural estates and seigniorial rights which divided the control with commercial in- terests. English hereditary characteristics both here and in New Jersey mingled with and modi- fied those of continental origin. In Pennsylva- nia the elements of population were composite. The English religious opinions and sentiments introduced by Penn influenced a more lethargic population from continental Europe, and dis- posed their minds to the arts of peace and the love of concord. The moral position of the state was that of a mediator. The controlling ele- ments in Virginia were of good English origin, exercising a positive dominion over that por- tion of the white population which represented an inferior immigration of questionable ante- cedents. Like the trained leaders of New Eng- land, the educated leaders in Virginia and in South Carolina were men of clear perceptions, THE ARTICLES OF CONFEDERATION 23 decided opinions, and strongly attached to po- litical theories. The Southern States were generally controlled in their material interests by the demands of agriculture. While slavery existed in small degree in the Northern States, it was a powerful interest only in the South. The dominant religious sentiment also varied in the various States. In some the church and schools were supported by state taxation, in others not. To these various and often con- flicting elements must be added the pro-slavery and anti-slavery dissension already existing, and not limited by geographical divisions. Besides these considerations, there existed that natural distrust of strangers, and especially of their influence in any degree over domes- tic affairs of the different colonies, which can only be obviated by frequent association and intimate acquaintance. The close association of the officers of the army during the war of independence, their participation in common perils and struggles and for a common object, had with them effected to a large extent the removal of this distrust. The movement for a closer union of the States found among them its most ardent supporters and constant advo- cates. Their descendants, in the Society <5f the Cincinnati, commemorate still the patriotic efforts of their ancestors to accomplish the great constitutional union. 24 EVOLUTION OF THE CONSTITUTION The opposition, both inert and active, to a genuine and vigorous national authority, ap- peared most uniformly in the local legislatures, and among men who were not personally en- gaged in the war. They transferred their op- position towards alien English control to alien American control ; for they still regarded the other colonies, in some proportion to the dis- tance of their territory, as aliens and strangers to their respective commonwealths. Their con- federation itself, therefore, was little more than a treaty between forced allies, who were jealous of each other, and would each retain a veto upon the acts of all, except in those few points where the immediate danger from Europe controlled their fears of domestic rivalry. Nor was human nature a century ago free from those imperfections which to-day mark the characteristics of our public life. Personal envies and jealousies and competitions were too rife for the best expedition of public affairs. Personal criticisms were violent and often reck- less. In a time of war, when all the instruction of history enforces the necessity of a concen- tration of power in a vigorous, decisive, central authority, thirteen authoritative heads were interposed, which, in turn, were subject to thir- teen other widely separated heads. No presid- ing officer could remain in his place more than one year in three, lest one man or one State THE ARTICLES OF CONFEDERATION 25 should offer talents and furnish experience which might lead to an excessive influence for himself or his State. From the perusal of the records of that epoch we rise with amazement at the unshaken patience, moderation, and firmness of Washington, who persistently sought the establishment of confidence and concord, and kept himself unsullied and faith- ful amidst the virulence, jealousies, and pas- sions of the time. IV PRELIMINARIES OF THE CONSTITUTIONAL CONVENTION OF 1787 The abler men among the patriots then in military and civil life were not deceived by any fond hopes flowing from the adoption of this instrument. They clearly foresaw the difficul- ties and embarrassments still interposed against the successful administration of government, alike in war and peace. Hardly had the an- nouncement of the ratification of the Confed- eration reached the various state capitals before the letters and pamphlets of the time disclosed its defects and insufficiency. Again was heard a call for a constitutional conven- tion. Within a few months from the approval of the Confederacy by Maryland the dissatis- faction found wide and emphatic expression. Washington, whose efforts to secure the organ- ization of a vigorous union and government were as constant as his devotion to his weighty military duties, showed a painful consciousness that the Confederate constitution was wholly inadequate to the demands of the time. He regarded it as chiefly important in completing the formal alliance of the States. " If the PRELIMINARIES OF THE CONVENTION 27 powers granted to the head of the States," he said, " are inadequate, the defects should be considered and remedied. Danger may spring from delay. The present temper of the States is friendly to the establishment of a lasting union ; the moment should be improved ; if suffered to pass away it may never return; and, after gloriously and successfully contend- ing against the usurpations of Britain, we may fall a prey to our own follies and disputes. . . . A nominal head, which at present is but an- other name for Congress, will no longer do. That honorable body . . . must dictate, and not merely recommend. . . . Without a control- ling power in Congress it will be impossible to carry on the war." Hoping that public affairs would now put on a different aspect, he added, "but not unless Congress is vested with, or will assume, greater powers than they exert at present, and will dispense them freely, upon general principles, to the ministers of State." He addressed himself in this sense, and with urgency, to leaders in different States. In the mean time Congress itself had appointed a second and able committee to examine the Articles, "to prepare an exposi- ^ tion of the Confederation," a plan for its complete execution, and supplemental articles. This committee reported a series of subjects upon which laws should be framed for the 28 EVOLUTION OF THE CONSTITUTION execution of the Articles, but declined to make an " exposition " of the Articles for the signifi- cant reason, among others, that " the omission to enumerate any Congressional powers would become an argument against their existence, and it will be early enough to insist upon them when they shall be exercised and dis- puted." So early did questions of constitu- tional construction arise ; and so promptly was the necessity for " supplemental articles ** made apparent. They proposed seven distinct .recommendations for increasing the powers of Congress. All this was made known to the States, but apparently without producing a movement for their adoption. Such incomplete measures encountered a double opposition. The States were in large part unwilling to have any force applied to their delinquency, and equally unwilling to diminish their reserved powers. The friends and advocates of a strong national govern- ment, on the other hand, were indifferent to these half-measures, knowing how far they failed of affording relief to the country. Of the latter class Hamilton expressed the sen- timents when he published these words: "There is hardly a man who will not ac- knowledge the Confederation unequal to a vigorous prosecution of the war, or to the preservation of the Union in peace. The PRELIMINARIES OF THE CONVENTION 29 Federal government, too weak at first, will continually grow weaker. . . . We ought with- out delay to enlarge the powers of Congress. Every plan of which this is not the foundation will be illusory." During the years 1781-82 the condition of the finances was constantly growing worse, paper money had become almost worthless, i^ the army wanted pay, requisitions were dis- obeyed, and anxiety and distress were general. Congress organized with more or less success some departments of administration; but these . found themselves seriously ineffective for want of powers and lack of revenue. France agreed to make another small loan, with assurance that nothing more must be expected from her, and accompanied by reproaches upon the un- willingness of the States to exert themselves. At this time of general conflict of material interests, of social elements, of political aims, and of personal ambitions, Schuyler and Ham- ilton urged, and both branches of the legisla- ture of New York adopted, resolutions (July, 1782) unanimously recommending Congress to propose " and each State to adopt the measure of assembling a general convention of the States, specially authorized to revise and amend the Confederation, reserving a right to the respective legislatures to ratify their determinations." These resolutions were 30 EVOLUTION OF THE CONSTITUTION communicated to Congress, and to the state governments. Meantime, the proposition to so enlarge the powers of Congress that they might obtain a revenue from duties on imports had been rati- fied by all the States except Rhode Island. Congress was about to send a committee to obtain the assent of that State when the Vir- ginia Legislature (December, 1782), on the motion of Richard Henry Lee, most unex- pectedly retracted its previous assent, on the ground that it involved a surrender of the state sovereignty. This refusal on the part of so important a Confederate member as Virginia gave a shock to the Confederacy itself. It seemed not only a refusal of this particular measure for the support of the Union, but its principle tended against all powers in Congress which should operate in any way directly upon the citizens of a State. Yet it proved a step in the march to a more perfect union. Parties in that State divided, one led by the mover of that resolu- tion, and supported by Arthur Lee, Mercer, and Bland; the other, by Madison, with the positive support of Washington. Meanwhile, its immediate effect operated to the serious disadvantage of the country. Hostilities had practically terminated. Adjustment of new commercial relations with Great Britain re- PRELIMINARIES OF THE CaNVENTION 31 mained to be effected. Congress had no power to regulate commerce or pass a navigation act. After the peace, the question whether Ameri- can vessels were national or state was raised in Parliament (May, 1 783). Lord Thurlow said : " I have read an account which stated the government in America to be totally unsettled, and that each province seemed intent on es- tablishing a distinct, independent, sovereign State." And Parliament decided to commit all American commercial rights to the arbitrary will of the King in council. Jay wrote that no time should be lost in raising and maintaining a national spirit in America. Gouverneur Morris replied that the British restrictions would do us " more political good than com- mercial mischief ; '* true energy in our general government would yet be supplied. Lord North discussed our situation, and predicted utter powerlessness in our Confederacy, each State having reserved to itself every power relative to imports, exports, prohibitions, and duties, and recommended that the States be sepa- rately dealt with. They did not fail to dis- cover in this the means of further weakening a power which with perfect union might be- come formidable. Slowly these English views reached and affected American opinion. La- fayette also by correspondence urged the con- solidation of the Union. u 32 EVOLUTION OF THE CONSTITUTION Additional pressure was brought to bear upon public opinion by the discontent and urgent demands of the army for their pay, long time in arrears. Their violent and indig- nant spirit was subdued only by the discreet action, patriotic words, and personal interven- tion of Washington, who besought them not to sully their reputation by a mutinous act at the close of a glorious career. Upon their dis- bandment, a few months later, they organized the Society of Cincinnati, with the emphatic pledge of an "unalterable determination to promote and cherish union between the States," and separated without a penny of pay. The influence of the army was reinforced by that of the public creditors, who were wholly un- provided for ; not only the creditors at home, but also in France and Holland, all of whom became clamorous for some action looking to the payment of their obligations. Hamilton ex- pressed utter want of confidence in temporary revenue measures which depended on state action. In April, 1 783, and after the announcement of peace. Congress took up the New York resolutions for a general constitutional con- vention, and referred them to a committee of nine. Washington's earnestness for a more complete union was manifested with the pro- found sincerity and warmth of an apostle of PRELIMINARIES OF THE CONVENTION 33 religion. He addressed communications of great force, both to Congress and to all the governors of States, urging the imperative necessity of prompt and united action to res- cue the country from bankruptcy and disorder, and to preserve by their union the inestimable rights secured through the long struggles of the Revolutionary war. " The honor, power, and true interest of this country must be measured by a continental scale. To form a new constitution that will give consistency, stability, and dignity to the Union, and suffi- cient powers to the great council of the nation for general purposes, is a duty incumbent on every man who wishes well to his country. . . . If a spirit of discussion or obstinacy and per- verseness should in any of the States attempt to frustrate all the happy effects that might be expected to flow from the Union, that State which puts itself in opposition to the aggre- gate wisdom of the continent will alone be re- sponsible for the consequences. . . . Happiness is ours, if we seize the occasion and make it our own. . . . Whatever measures have a ten- dency to dissolve the Union, or to violate or to lessen the sovereign authority, ought to be considered as hostile to the liberty and inde- pendence of America." These sentiments were supported by an irresistible argument, based on the then existing condition of affairs, and 34 EVOLUTION OF THE CONSTITUTION were communicated by the governors to their legislatures in every State. He formulated no plan, but avowed his desire "to see energy given to the Federal Constitution by a con- vention of the people." The first effect of this circular letter to the States was that of inducing some of them to reverse their earlier action against the power of Congress to levy the import duties within the States, which had been proposed as the first measure for the restoration of public credit. Virginia, also, after a bitter struggle, passed over to the side of Washington. Its second effect was to check the tide of what Hamilton styled " the epidemic phrenzy " of absolute, sep- arate sovereignty of each individual State. But Congress continued irresponsive to the efforts of its ablest men in favor of a better union ; and in September its committee recommended a postponement of action on the New York reso- lutions. The British order prohibiting American ships from carrying produce to British colo- nies did more than all previous arguments to arouse the States to the necessity of enlarging Congressional power, in order by general legis- lation to resent and resist such foreign assaults on American interests. In April, 1 784, the new Congress agreed to a proposition that this body should be empowered, with the assent of nine PRELIMINARIES OF THE CONVENTION 35 States, and for the term of fifteen years, to exercise prohibitory powers over foreign com- merce. Jefferson, knowing how much hostile foreign powers depended on the fact that each State was always protesting for its separate sovereignty and independence of central con- trol, in his draft of instructions for our diplo- matic agents abroad, spoke of " the United States as one nation upon the principles of the Federal Constitution." Rhode Island, which had before objected to the use even of the -words " Federal government," alleging there was no such " government," but only a union, again interposed her voice now. At the vote taken upon this phrase of Jefferson, he was sustained by eight States against two. The fact is worthy of note as one of the signs of an ad- vance in the conception of a national govern- ment for the future. Washington had often before, as after this time, made free use of the word " nation," as applied to the United States. Early in 1 784, though now a private citizen, Washington addressed to the governor of Vir- ginia an earnest appeal for a stronger bond of union. The clearness of his views appears from the following extract : " An extension of Fed- eral powers would make us one of the most wealthy, happy, respectable, and powerful na- tions that ever inhabited the terrestrial globe. Without these, we shall soon be everything 36 EVOLUTION OF THE CONSTITUTION which is directly the reverse. I predict the worst consequences from a half-starved, limp- ing government, always moving upon crutches and tottering at every step." The new Le- gislature of Virginia was better disposed to strengthen the Union. Even Patrick Henry showed a yielding spirit, and Jefferson's fa- vorable influence was pronounced. In the Congressional session of this year four States were absent, three, becoming dissatis- fied, withdrew, and the powerless remainder finding themselves deserted went home in utter feebleness. The next (Fifth) Congress, which should have assembled in November, was long without a quorum. The French charge d'af- faires reported to his government that in America there was " no general government, neither Congress nor President, nor head of any one administrative department." It seemed a near approximation to anarchy in Federal affairs. In the following winter Noah Webster pub- lished a proposed " new system of government which should act, not on the States, but di- rectly on individuals, and vest in Congress full power to carry its laws into effect." The year 1785 brought to view two influ- ences bearing upon the constitutional union, and moving in opposite directions. The Con- gress had chosen for its President this year PRELIMINARIES OF THE CONVENTION 37 Richard Henry Lee, a bitter opponent of inherent Congressional powers ; and the New York Legislature appointed its delegates so that a majority of them joined Lee in his opposition, thus changing the position of that influential State. On the other hand, the excessive flooding of American markets with English goods, the British obstructions to the shipbuilding and the carrying trades, and restrictions upon their home markets against the products of American fishery, had com- bined to produce ruin to our manufactures, disaster to producing interests, and the ex- haustion of the metallic currency of the coun- try. The industrial Americans were in a state bordering on despair, and found it vain to look for relief to a Congress without power to provide a remedy. When single States sought relief by protective duties, this only served as a premium to another State to con- centrate in its own ports a free foreign trade, thus made yet more valuable to itself. Duties against imports from other States necessarily followed. At this juncture Congress trans- ferred its seat to New York. Its assemblage there was welcomed by the industrial interests of that city with an address, in which they showed their disagreement with the recent choice of delegates by their Legis- lature ; saying, " We hope our representatives 38 EVOLUTION OF THE CONSTITUTION will coincide with the other States in aug- menting your power to every exigency of the Union." The Chamber of Commerce also begged them to counteract the injurious re- strictions of foreign nations. Popular move- ments in the same direction appeared in Philadelphia and Boston. Pennsylvania and New York both increased their duties, in unequal degree, the one on numerous foreign goods, the other on such goods as were im- ported in British bottoms. The Legislature of Massachusetts pledged itself to use its most earnest endeavor to put the Federal govern- ment " on a firm basis, and to perfect the Union ; " and formally admitted that the Arti- cles of Confederation were inadequate to the purposes to be. effected. They ordered their resolutions to be communicated to Congress, and to the executive of each State. They also, as well as New Hampshire and Rhode Island, passed retaliatory acts against Great Britain, to continue "until a well-guarded power to regulate trade shall be intrusted to Congress." Like Pennsylvania, Massachusetts established highly protective duties. In addition to the embarrassments of com- merce resulting from this discordant action of the States in respect to duties on imports, and from the absence of a central power to combat the injuries to trade flowing from the action PRELIMINARIES OF THE CONVENTION 39 of foreign governments, great confusion was created by the numerous and variable stand- ards of value and the unsteady financial laws of the several States. In some the creditors were obliged to accept real and personal estate at an appraised value in satisfaction of their judgments. In others depreciated paper was legal tender in payment for purchases, on a fixed scale of depreciation. In others it must be received at its par value. Numerous stay- laws were enacted. Even in Massachusetts the courts were interrupted by riotous force. Legislation on the relation between debtor and creditor was constantly changing. There was no security for one side or the other. The rate of exchange in interstate transactions was alarmingly variable. One of the States author- ized the court and jury to decide questions of debt to the best of their knowledge, agreeably to equity and good conscience. In the pres- sure of the times some States appeared to abandon hope of a metallic currency, and took refuge in new emissions of paper money. A British agent writes to his government : " It is with pleasure that I can inform your lord- ship what silver and gold is to be had in this country goes in his Majesty's packet-boats to England." Georgia redeemed its paper with specie certificates at the rate of one thousand for one, while Delaware adopted the rate of 40 EVOLUTION OF THE CONSTITUTION one to seventy-five. Virginia, overwhelmed with depreciated paper, stopped its issue after 1 78 1, and undertook to redeem it in loan cer- tificates at the rate of one thousand for one. Judgments could be satisfied by the tender of hemp, tobacco, flour, at a rate fixed by the county courts, and even taxes were paid in tobacco. Under these conditions contracts wholly lost the protection of the laws under which they were made. The debtors were far more numer- ous than creditors, and practically controlled legislation by demands which rested on the emergency alone, ungoverned by principle. Good men everywhere were struggling against the general demoralization, and openly protest- ing against it. It led them strongly towards the plan of a new constitution for the Confederacy, which should destroy this power in the States by conferring on Congress exclusive authority to regulate the legal-tender money of the coun- try, and to prohibit the States from impairing the obligation of contracts. During this year (i 785) the common efforts of Maryland and Virginia to unite the waters of the Potomac and Ohio for the improvement of commerce, and the especial desire of Mary- land for a canal connecting the Delaware and Chesapeake Bays, for which the cooperation of Pennsylvania and Delaware was needful, PRELIMINARIES OF THE CONVENTION 41 induced Maryland to make a further proposi- tion. If even these two limited lines of internal communication could not proceed without a common understanding of several States, how could all the commercial relations of the future go on if liable to the conflicting legislation of independent States ? The Legislature of Mary- land in this connection addressed a commu- nication to that of Virginia, proposing that commissioners from all the States should be invited to meet and regulate the restrictions on commerce for the whole. Madison quickly saw the opportunity to inaugurate the long-desired movement for a more perfect Union, and, hold- ing himself in the background, persuaded a state sovereignty member to offer the resolu- tion which he prepared, for the appointment of commissioners by Virginia, to meet commis- sioners from all the States, to examine and re- port on the requisite increase of the powers of Congress over trade, their action being subject to the ratification of every State. It was quietly called up at a later period, and passed (January, 1 786) ; and Madison was placed at the head of the commission. Annapolis was proposed as the place, and September as the time, for the assembling of the commissioners. No New England State appeared, and no Southern State south of Virginia, while even Maryland was absent from her own capital. The five States 42 EVOLUTION OF THE CONSTITUTION present were represented by men from New York, New Jersey, Pennsylvania, Delaware, and Virginia, who believed in more far-reach- ing provisions than those suggested by the original resolution. Their sessions were soon closed, with a recommendation to their States to obtain a meeting of all the States at Phila- delphia in the following May, to consider the situation of the country, and to devise the measures necessary to make the Constitution adequate to the exigencies of the Union. Before the meeting at Annapolis, new efforts were made in Congress to enlarge its powers. Charles Pinckney reported from a committee seven amendments to the Articles of Confed- eration, giving Congress power to regulate foreign and domestic trade, and to collect duties, which, however, must be paid over to the State in which collected; to punish treason and crimes committed on the high seas; to establish an appellate court of seven judges with jurisdiction of certain Federal questions ; to establish a new system of revenue, eleven States consenting ; and regulating the payment of quotas by States. After long and some- times violent discussion, these propositions were abandoned to that great file of ever-accu- mulating unfinished business. The country ceased to expect relief from its Congress. New Jersey was gained to the plan of a convention PRELIMINARIES OF THE CONVENTION 43 for enlarging the powers of the general gov- ernment. The taxation on her imported goods, introduced through the port of New York, and the practical assessment of her own citi- zens for the sole benefit of the New York State Treasury, opened her eyes to the neces- sity of a reform in the Union. The general situation of the country in the summer of 1 786 was deplorable. From a care- ful official report made to the Count de Ver- gennes in September of that year, it appears that the condition especially of New England was sufiicient to impart a sentiment of despair. The common masses of the people, driven by distress, demanded the emission of paper money for their relief. Massachusetts had seen its prodigious evils in other States and refused it. These people then took arms and dispersed the courts, demanded their abolition, and that of the State Senate, and cried out for a new emission of paper, and other wild objects from which they imagined relief would come. Pn New Hampshire three hundred mutineers assembled to break up a court of justice, and intimidated their legislature. Many of the people of Connecticut made efforts for the abolishment of debts and the dissolution of the courts. Hundreds of farms were there offered for sale for the payment of taxes ; and specie was so scarce that they hardly brought 44 EVOLUTION OF THE CONSTITUTION one tenth of their value. A British agent, reported upon the like facts, and added : " In- deed, dissatisfaction and uneasiness prevail more or less throughout this country; the greater part of the people poor, and many in desperate circumstances, do not, it seems, want any government at all, but had rather have all power and property reduced to a level." The five state delegations at Annapo- lis, aware of this public condition, and know- ing that additional commercial authority in Congress was totally inadequate as a rem- edy, wisely resolved to rely only on a conven- tion with general powers to revise the entire Constitution of the Union. Guarded as was their language, it revealed to the intelligence of the country the imperative nature of radical relief. A Virginia member of Congress wrote from New York in October to Washington: " We are all in dire apprehension that a begin- ning of anarchy with all its calamities has approached, and have no means to stop the dreadful work." He added the suggestion that Washington's unbounded influence, if brought to bear, might quell the seditious spirit. Wash- ington in his reply used the words, " Influence is no government." Moved by the steady force of her great unionists, and by the increasing disorders of the several States, Virginia took at last, in PRELIMINARIES OF THE CONVENTION 45 December, 1786, a firm and loyal decision. Her Assembly, with unexpected unanimity, adopted the recommendation of the Annapolis Convention, and appointed the great names of Washington, Madison, Mason, and Randolph to represent her views in the Philadelphia Convention. Wisely remembering that state legislatures had exercised the right of agree- ing to national measures and then revoking that agreement at will, that part of the Annapo- lis report which suggested that the act of the coming convention should be effective w^hen " confirmed by the legislatures of every State " was modified in the Virginia resolution by requiring confirmation by the States. By this method timid legislatures could transfer the decision to the people in special convention, as in fact the unionists desired. This act of Virginia was transmitted by Governor Ran- dolph to Congress and to the governors of all the States. New Jersey was the first of the States to accept the proposition. Pennsyl- vania, most constantly loyal to the Union, quickly adopted it, followed by North Carolina and Delaware. Rufus King, who had long used his great influence in Massachusetts against the increase of central power, wrote Governor Gerry that he was inclined favorably to this project, though he thought it illegal in form of inception. " Events are hurrying us to 46 EVOLUTION OF THE CONSTITUTION • a crisis," he said. " Prudent and sagacious men should be ready to seize the most favor- able circumstances to establish a more perfect and vigorous government." New York, still obstinate under Governor Clinton, ignored the Annapolis invitation, and desired Congress to call a general convention. When the New York delegates moved it under their instruc- tions, without mentioning time or place, it met with entire failure. King, of Massachusetts, then saw his opportunity to reconcile his past with his present views, and perhaps to bring New York into the movement. He accord- ingly offered (February, 1787) a plain resolu- tion, by which Congress advised a convention to be held at the time and place which the action of Virginia had already fixed, but with- out naming the act of that State. It was at once accepted by Congress, and satisfied the theorists of that school with the method of initiating the convention. States could now appoint members either to the convention called at the suggestion of the Annapolis meeting and upon the invitation of Virginia, or pursuant to the recommendation of Con- gress; and in either case they would find themselves in one common convention. It was doubtless a wise and useful measure, in view of the rivalries of men and of the jeal- ousies of state precedence. PRELIMINARIES OF THE CONVENTION 47 Massachusetts, troubled with a recent insur- rection, accepted in February. New York a few days later concurred, and appointed Yates and Lansing, who represented more especially the ideas of state sovereignty, and Hamilton, who was a strong unionist, to be her delegates to the convention. South Carolina and Georgia appointed their delegates in April. Connect- icut sent a strong delegation in May, and Maryland soon followed. New Hampshire de- layed till June. Rhode Island alone main- tained her isolation to the end as a non-union State, by a legislative majority of twenty- two votes against the convention. Pending these proceedings for a convention, and late in February, Madison wrote to Gov- ernor Randolph: "Our situation is becoming every day more and more critical. No money comes into the Federal treasury ; no respect is paid to the Federal authority; and people of reflection unanimously agree that the exist- ing Confederacy is tottering to its foundation." He added that men in the East were suspected of leaning towards monarchy; others were predicting the partition of the States into two or more confederacies. He believed that unless a radical amendment of the present system was effected the partition would take place. In April he again wrote that " unless the Union was efficiently organized on republican princi- 48 ^VOLUTION OF THE CONSTITUTION pies the partition of the empire into rival and hostile confederacies will ensue." By the foregoing tedious and often unavail- ing steps did the people of the United States advance towards a more perfect government. The causes of this slow approximation to a result so necessary to their security from for- eign foes, and so indispensable to the establish- ment of equal and common privileges among the citizens of different States, are not obscure. The vast extent of their territory, the com- munication limited by sail on the water lines, and by poor wagon-roads and bridle-paths on land, were great hindrances to a friendly and intimate knowledge of their mutual interests. The different controlling industries in various States created apprehensions of adverse legis- lation by a body in which these various interests should be unequally represented. Some States were more deeply in debt than others, and in deeper poverty. These feared the power and influence of the more wealthy and prosperous States. In some of them the spirit of repudia- tion was rife and bold ; and these desired to retain the position of aliens towards any power which might be animated by a strong sense of justice. Their ideas of a home government could not be expanded to embrace a continent, or even its Atlantic region. Slavery, increased by annual importations of human beings as PRELIMINARIES OF THE CONVENTION 49 property, had obtained a solid territorial domi- nation in one section, and but a small and un- steady foothold in another. There was as yet no brotherhood among the States, except in small groups. The limited number of delegates to Congress, many of them frequent absentees, and who represented the legislatures, not the people, were insuflScient instruments for propa- gating ideas of union among a widely scattered popular constituency. There were fewer num- bers in the Congress than in most of the state legislatures. The latter were lords, the former servants. Congressional opinion was in per- petual chains, and had the timidity which at- taches to subserviency. Too much courage of conscience involved the sacrifice of position. Constant rotation in office diminished or de- stroyed the growth and usefulness of experience. The enlarged views acquired from the height of central government were ever nullified by the narrower aspirations of local sovereignty. Authority, whether executive, legislative, or judicial, if intrusted to persons not appointed by the state legislature itself, and irresponsible to the State, seemed to the people an abandon- ment of personal rights, and a return to foreign jurisdiction. All citizens of the United States were animated by the identical love of personal liberty and of free institutions which character- ized each ; yet each remained blind to the truth so EVOLUTION OF THE CONSTITUTION that there was greater security in the combined force of all than could be found in single inde- pendence and sovereignty. For war they ad- mitted the need of union. In peace only the stress of commercial conflict between the States and with foreign countries could induce them to strengthen the bonds of a general govern- ment. While these were the prevailing sentiments, among leaders there was abundant diversity in theories of government for the Union. Systems, plans, projects, had been discussed for many years, and so often defeated or ignored that it hardly seemed within human power to revive an old or propose a new one with any reason- able probability of its general adoption. The predisposition of each State was to reject the plan of every other State. The rivalries of per- sons and of communities reinforced this pre- judice, and covered any new scheme with clouds of doubt. It was not, therefore, to be regretted that some men of strong intellect who might have been delegates to this convention, but who were enemies to a consolidation of the Union, preferred to remain at home, and permitted their places to be filled by friends of the na- tional movement. It was of supreme impor- tance that the scheme of reform to be devised should have the general sanction of the initia- tory body before demanding that of the States. PRELIMINARIES OF THE CONVENTION 51 This could better be accomplished by union- ists of different shades of opinion than by the doubtful cooperation of persistent separatists. It would hardly be possible to find a more melancholy picture for the contemplation of patriots than that presented by the States of the Union at the time of their appointment of delegates to Philadelphia. The public debt was in no part paid, and no provision whatever was made for its payment. The Confederacy was without revenue of its own, and without resources. Whatever gold or silver existed in the country was sent beyond seas to pay for imported goods. None of the States fully re- sponded to Confederate requisitions; some partially complied, and New Jersey expressly refused to comply. The navigation laws of New York, Pennsylvania, New Jersey, and Maryland treated the other States as ahens, as if they were European countries. South Carolina, Virginia, Pennsylvania, and New York were taxing the trade of other States passing through their ports, and developed angry sentiments in their nearest neighbors. Connecticut taxed im- ports even from Massachusetts. The treaties made by the Confederation were violated in the States with impunity. Compacts were made between States in violation of the articles of the Confederacy, even by such States as New Jersey and Pennsylvania, Virginia and Mary- 52 EVOLUTION OF THE CONSTITUTION land. The demoralization had gone so far that Virginia not only refused to apply for the sanc- tion of its compact with Maryland by Congress, but even voted against advising Congress of its existence. The legislatures and the people showed equal disregard of public and private obligations. Respect for the Confederacy had ceased at home, and it was the object of con- tempt abroad. Thoughtful men doubted of the capacity of the people for self-government, and began to whisper of monarchy as a cure of public disorders. Surrounded by doubts, but inspired by hope, and powerfully urged by the dangers and dis- tresses of the country, the delegates to this Convention made their journey by slow stages from their respective States to the city of Philadelphia, now to become once more the centre of a nation's hopes. THE CONSTITUTIONAL CONVENTION The Convention was summoned for the 14th of May, 1787. The necessary quorum of seven States did not appear until the 25th of May, when the majority of the New Jersey delegates presented their credentials. Three days later Massachusetts and Maryland increased the number to nine. The representation of Con- necticut and Georgia added two more States on the 30th and 31st of May. That of New Hampshire did not arrive until the 23d of July, after the majority of the New York delegates had withdrawn ; so that only eleven States were voted at any one time, out of the twelve represented. Rhode Island alone refused to be represented, having rejected the proposition by a legislative majority of twenty-two votes. A number of her leading citizens, however, forwarded a letter of sympathy to the Con- vention. Of the characters composing this Conven- tion, the French minister wrote to his govern- ment: "If all the delegates chosen to this Convention at Philadelphia are present, Europe will never have seen an assembly more respect- 54 EVOLUTION OF THE CONSTITUTION able for talents, for knowledge, for the disinter- estedness and patriotism of those who compose it. General Washington, Dr. Franklin, and a great number of other distinguished person- ages, though less known in Europe, have been called thither." It was certainly most fortunate for the coun- try, for the prestige of the Convention, and for the solidity of its work, that Virginia set the example of intrusting her commission to her greatest names. Where Washington led the way, followed by Madison, Governor Randolph, George Mason, and Chancellor Wythe, no other State would be willing to refuse a con- tribution of its most reputable, noblest char- acters. Pennsylvania responded with Franklin's vast experience and wisdom gathered on two continents, with Robert Morris and Gouverneur Morris, and was further strengthened by the great ability of Wilson. South Carolina sent John Rutledge, with the two Pinckneys. New Jersey offered her chancellor, Livingston, with Chief Justice Brearley, William Paterson, and Dayton. New York reluctantly commissioned her chief unionist, Alexander Hamilton, a born statesman, who combined indomitable force of character with a genius for the orgartization of States. Delaware gave her patriotic Read and her venerable Dickinson as aids in the great work. Connecticut, so rich in contributions of THE CONSTITUTIONAL CONVENTION 55 soldiers to the Revolutionary struggle, ranked herself in the forefront of the Convention when Sherman and Ellsworth and Johnson appeared there. The voice of Massachusetts found elo- quent expression in Rufus King, and her opinions gathered strength from the high re- putation of Governor Gerry and the wisdom of Gorham. If ever a government could be formed fresh from the brain of man, instinct with a vigorous life, and admirable in form as that fabled goddess who sprang full-armed from the brow of Jove, it might surely be expected from the midst of this assembly of the wisest and purest and most patriotic characters to which the old European or the young American con- tinent had ever given birth. If the effort should fail now and here, the boldest of our national patriots were prepared to await in silence and unhappy resignation the alterna- tive fates of anarchy or despotism. The completed roll of delegates who were ac- tually present in the Convention at some time during its deliberations shows the following names : — From New Hampshire (2) — John Langdon, Nicholas Gilman. From Massachusetts (4) — Elbridge Gerry, Nathaniel Gorham, Rufus King, Caleb Strong. From Connecticut (3) — William Sam- 56 EVOLUTION OF THE CONSTITUTION uel Johnson, Roger Sherman, Oliver Ells- worth. From New York (3) — Robert Yates, Alex- ander Hamilton, John Lansing. From New Jersey (5) — William Livingston, David Brearley, William Churchill Houston, William Paterson, Jonathan Dayton. From Pennsylvania (%) — Benjamin Frank- lin, Thomas Mifflin, Robert Morris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, Gouverneur Morris. From Delaware (5) — George Read, Gun- ning Bedford, Jr., John Dickinson, Richard Bassett, Jacob Broom. From Maryland (5) — James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll, John Francis Mercer, Luther Martin. From Virgi^iia (7) — George Washington, Edmund Randolph, John Blair, James Mad- ison, Jr., George Mason, George Wythe, James McClurg. From North Carolhia (5) — Alexander Martin, William Richardson Davie, William Blount, Richard Dobbs Spaight, Hugh Williamson. From South Carolina (4) — John Rutledge, Charles Cotesworth Pinckney, Charles Pinck- ney, Pierce Butler. From Georgia (4) — William Few, Abraham Baldwin, William Pierce, William Houstoun. THE CONSTITUTIONAL CONVENTION 57 Of these, eight members had signed the Declaration of Independence. The whole number of appointments made was sixty-five, of whom only fifty-five attended the Con- vention; and of them only thirty-nine affixed their names to the Constitution at the end of their deliberations, three expressly refusing, and others absent. Hamilton was born in Nevis, one of the Leeward Islands; Wilson in Scotland; Robert Morris and Davie in England. Paterson, Fitz- simons, McHenry, and Butler were of Irish birth. The other delegates were native Amer- icans. Some of them had been educated in England, but most of them in the country of their birth, which they had rescued from for- eign domination, to which they had given the principles of liberty, and which they now de- sired to endow with the rights of a republic and with the organization of a united, free, and stable government. The Convention at the outset provided for secret sessions. The conflict of opinion throughout the country was so great that they feared to exasperate existing divisions, and to provoke hostilities while their plan was in con- struction, if each day's immature proceedings and discussions were given to the public. They also believed that a more sincere and frank expression of personal opinions could be ob- 58 EVOLUTION OF THE CONSTITUTION tained from the delegates, and compromises of jarring judgments could be better secured, if they were exempt from the exterior influence of bitter prejudices. They decided, therefore, that no communication of their resolutions should be made until the whole completed work could be laid before the country, and that no individ- ual votes should be recorded, this record being made by States. The dilatory arrival of the majority of the delegations gave opportunity for private and personal comparison of views between the few delegates who were earliest in Philadelphia. The members from Virginia met in frequent consultation, and brought themselves into harmonious relations upon a rough draft of constitutional principles which Madison had prepared. This document, modified by their consultations, was afterwards authoritatively presented to the Convention as the plan of Virginia, The moral force of the then leading State of the Confederacy was thus, from the beginning, thrown into the wavering balance in favor of a wholly new Constitution, and against any partial amendment of the existing Articles of Confederation. Her very able del- egation succeeded, though afterwards much divided upon details, in keeping the action of the Convention upon the original basis pro- posed by them. The discussion upon their THE CONSTITUTIONAL CONVENTION 59 resolutions began in committee of the whole house, Mr. Gorham, of Massachusetts, in the chair, on the 30th of May; and they were finally reported, as amended, on the 19th day of June, and were before the Convention, as from time to time modified, until the germ was developed and ripened into the American Constitution on September 17, 1787. There were some individual schemes of greater or less scope offered by Charles Pinckney and by Hamilton, but they never diverted the general course and lines of de- bate. That of Charles Pinckney is the most notable, by reason of the form in which it has been published, and which bears so striking a resemblance to the Constitution as adopted. But his original plan submitted was not pre- served, and that now attributed to him lacks authenticity. It bears internal evidence of later composition, and is in conflict, in some of its provisions, with his recorded speeches and letters. On the high authority of Mr. Madison and of the historian Bancroft it must be rejected. Neither the scheme of Mr. Pinck- ney nor that of Mr. Hamilton is important in this recital, because neither of them ever became the base of the Convention's delibera- tions ; and the opinions of both these distin- guished delegates appear in the course of the debates upon the three plans offered in the 6o EVOLUTION OF THE CONSTITUTION name of the respective States of Virginia, Connecticut, and New Jersey. New Jersey, pressed between her two large and powerful neighbors to whom she was liable to pay commercial tribute, desired to amend the Confederate articles, chiefly that duties might be made to bear equally on all the States, preserving her state sovereignty and equality in voting power. These points granted, she would concede further amend- ments. Connecticut, also, desired to adhere to the Confederate system. With a delegation un- surpassed in experience, learning, and ability, she appears to have suggested, about the time the Virginia plan was reported, a scheme of amendment of the Confederation, consisting of several sections, the product of her experi- ence under the infirm government then exist- ing. Parts of both the Virginia and Connecticut propositions were accepted and parts refused, as will appear by the following analysis of their principal clauses and the ultimate dis- position made of them. In the scheme of Virginia, which fortunately had precedence in time and in the outlined completeness of its form, were found the prin- ciples of a new and thoroughly constitutional government for the whole people, combined THE CONSTITUTIONAL CONVENTION 6i for general purposes into one nation. This qualification of " national " occurred in it nine- teen times as it went into committee and twenty-five times as it was reported from the committee, and left no doubt that it was in- tended to substitute a new government for the whole country, to which the States should be auxiliary for only their internal economy respectively. Every attribute of sovereignty looking to their relations beyond their own respective geographical boundaries was trans- ferred to the general or "national" govern- ment. The latter was to be independent of the individual States and in no way respon- sible to them. Its reliance was directly on the people, from whom it was to choose its own legislative, executive, and judicial agents, who should be responsible to itself alone. OF THE LEGISLATIVE DEPARTMENT. Suffrage in the " national legislature " ought to be proportioned to quotas of contribution or the number of free inhabitants (refused). It should consist of two branches, the members of the first to be elected by the people of the several States and to receive a compensation, and not to hold any other office under the United States at the same time (accepted); to be ineligible to immediate reelection, and to be subject to recall (refused). Members of the 62 EVOLUTION OF THE CONSTITUTION second House to be chosen by the members of the first House from among persons to be nominated by the state legislatures respectively (refused), and to be ineligible to immediate re- election (refused). The" national legislature," in addition to the legislative rights already vested in the Confederate Congress, ought " to have the right to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legis- lation" (limited to the scope of granted powers, and so adopted); the right to negative all laws passed by the several States contravening the articles of union (refused); the right to call forth the force of the Union against any mem- ber of the Union failing in its duty under those articles (refused); each House to have the right of originating all acts ("bills for rais- ing revenue" limited to the first branch, and so adopted). EXECUTIVE DEPARTMENT. The national executive ought to enjoy the executive rights already vested in the Con- federate Congress, and have a general authority to execute the national laws (accepted, saving confirmation of certain acts by the Senate). This executive to be chosen by the national legislature (refused); and to be ineligible for a THE CONSTITUTIONAL CONVENTION 63 second term (refused); and, together with a portion of the national judiciary, to form a council of revision (refused), "with authority to examine every act of the national legislature before it shall operate" (accepted in the veto power, with reserved legislative right of two thirds). JUDICIAL DEPARTMENT. "A national judiciary ought to be estab- lished," consisting of one supreme court and inferior tribunals (adopted) ; to be chosen by the national legislature (refused) ; to hold their office during good behavior (adopted); with jurisdiction over felonies on the high seas, and captures, between foreigners and citizens, between citizens of different States, over ques- tions of the collection of the national reve- nue (adopted); over impeachment of national officers (refused); and questions which may involve national peace and harmony (refused in those terms). MISCELLANEOUS POWERS. Provision ought to be made for admitting new States out of Union territory (accepted); republican government ought to be guaranteed to each State (accepted), and also its territory (refused). All engagements of the existing Congress to be observed (accepted). Provisions 64 EVOLUTION OF THE CONSTITUTION to be made for amendment of these articles, to which the assent of the national legisla- ture ought not to be required (accepted). The legislative, executive, and judicial powers of the several States to be bound by oath to sup- port the articles (accepted). The acceptance of these new articles by the States to be decided by vote of conventions expressly called therefor (accepted). The scheme offered by the State of Con- necticut differed from the preceding in im- portant particulars. Like the other, it gave to Congress jurisdiction over foreign and interstate commerce, with a revenue from the customs and the post-office (enlarged and ac- cepted) ; and power to make laws in all cases which concerned their common interests, but not to touch the state authorities in affairs concerning only the local welfare (accepted in principle). But the laws of the United States covering the common interests of the States were to be enforced by the judicial and other authorities of the States themselves (refused). For certain specific purposes the United States were to establish a supreme and other neces- sary tribunals (enlarged and accepted). No State could make a currency of bills of credit (accepted), nor make laws violating contracts where foreigners or citizens of other States were interested (accepted with enlargement). THE CONSTITUTIONAL CONVENTION 65 The Union treasury was to be supplied by the States in the proportion which their respective numbers of free inhabitants — excluding un- taxed Indians, and adding three fifths of all other persons — bore to the whole (refused). Some provision might be made for calling on the people by the United States for the en- forcement of their laws; and in case of the failure of any State to pay in its quota the United States could levy and collect the same directly from the people of the delinquent State (abandoned). Criminal trials must be by jury, and in the State where the offence was committed (accepted). The New Jersey system was intended to unite all the opponents of a new and national government, and was purely federal. It con- tained some important and useful amendments of the existing Confederation. It retained, however, the Congress of a single body, and provided for the election by it of a plural ex- ecutive, which was little better than a com- mittee of Congress, because the latter could at any time revoke its powers on demand of the States. The only direct revenue it granted to the United States was to be derived from duties, stamps, and the post-office. For the rest it maintained the old system of requisi- tions, and gave primary jurisdiction of most federal questions to the courts of the State, 66 EVOLUTION OF THE CONSTITUTION with appeal to the Federal Supreme Court. Many of its provisions were concurrent with those already approved in committee. But be- ing based on the Confederation, the decision upon it was adverse, — seven States to three, with Maryland divided. The most strongly marked line of division in the Convention was upon the question whether' the new government should be fed- eral or national; that is, whether it should rest upon the States as independent political powers, or upon the people of all the States as the ultimate source of all political authority. If the former idea prevailed, the new govern- ment would still be a mere league, and might be dissolved by its members, like any other league between States. If the national ideas were dominant, then the new government would hold its powers direct from the people of the entire country which should adhere to the new Constitution. In this case each sep- arate State, while exercising its retained do- mestic authority undisturbed, would be merged in the nation in respect to all matters within the national jurisdiction. As to these its sov- ereignty and its independence would be lost The power of a State in these relations be- came only the power of an individual, — that of being counted. No power of reserved and final judgment could then be claimed for a THE CONSTITUTIONAL CONVENTION 67 State without at the same time destroying the national government; that is to say, such a judgment could only be made effective by re- bellion and force outside of the Constitution. It was also distinctly designed that the people — not the States as legislative corporations — should establish the validity of the Constitu- tion. Hence it was insisted, and finally resolved in the new Constitution, that the people should adopt it by special conventions called for the purpose of considering it. Thus they resorted to a power behind the state legislatures, be- hind even their constitutions, for the sanction of the new instrument, and as the original source of the new national rights. For this purpose the States were employed only as necessary geographical circumscriptions for obtaining the vote which bound the state corporation to the Union, as counties and towns are employed for the returns of the popular suffrages in state elections and on questions of annexation of territory. That popular affirmation then becomes a finality. This is the logical thread which will safely conduct us through the mazes of our constitu- tional history, and through the long debates of its formative period, and even of the later period of the construction given to that in- strument by the great tribunal which it estab- lished. In the beginning it was the "United 68 EVOLUTION OF THE CONSTITUTION States of America" who appealed "to the Supreme Judge of the world for the rectitude of their intentions," and "in the name and by the authority of the good people of these col- onies" declared freedom and independence. It was only the " United States " which then claimed the right to levy war, conclude peace, contract alliances, and do all other acts belong- ing of right to independent States. Nowhere are these acts and powers said to belong to each of them. But this declaration established no rights; it only expressed theories and aspira- tions. Conflict in financial and military inter- ests between the States very soon threw them back upon their individuality acquired under colonial charters. Their melancholy experi- ence of disunited action during the war next inclined them to the formation of some sort of new common bond and common authority. Then they adopted the " Articles of Confedera- tion and Perpetual Union," which they styled " a firm league of friendship with each other," and in which " each State " now appears, retain- ing " its sovereignty, freedom, and independ- ence," and only delegating certain functions of state to the "United States in Congress assembled." Further to express its character as a league, a compact, and not a nation, each State expressly reserved its right to an equal vote, and to recall its delegates at any time and THE CONSTITUTIONAL CONVENTION 69 send others at will, only limiting the number of delegates to seven as the maximum and two as the minimum from each State. They had no revenue except what each State should give. Nor could the assembly so constituted act by a majority of members, or even of States. In all the more important matters the consent of nine States was required. Any alteration in the ar- ticles required the approval of every individual State. Thus state rights were * not only ob- served, but strongly established by this first compact or treaty. This was a government resting upon and deriving its powers solely from the States as corporate bodies. We have already traversed the time, strewn with disasters and marked by disorders increas- ing as time elapsed, during which the American States and people became wholly alienated from this empty form of government, which had indeed brought on them bitter reproaches at home and disdain abroad. We are prepared to witness the reappearance of the national conception of government, returning in flood- tide to the minds of the patriotic builders of government. The leap from the confederate league to the constitutional union, long as it was, becomes only the dictate of experience. The corporate States no more appear as foun- tains of national authority, revocable at will. This act, like that of the Declaration of In- 70 EVOLUTION OF THE CONSTITUTION dependence, is in the name of the people. " We, the people of the United States, . . . ordain and establish this Constitution for the United States of America." We observe that the Confederation was "between the States," — " the said States hereby severally enter into a firm league." The greater sovereignty of the people was ignored. Now, however, this ulti- mate popular sovereignty is in the forefront, and, by "ordaining the Constitution for the United States," imposes its will on the sepa- rate States as represented by legislatures, and overrides state constitutions and state laws. It thus asserts its overruling authority in the opening clause of the Constitution; it requires all state officers to take oath to support it; and confirms it by the people's ratification as required by its final clause. The alpha and the omega recognize only the people, and not the corporate States, as ordainers of the new Con- stitution. The words " league" and " compact " disappear, and the principles they represent are annihilated by the people's sovereign will. The motives for this radical and mighty change in the form of government can be traced in the record of past events. It becomes very apparent as we pursue the course of the debates in the Convention, where its im- portance was so fully recognized, that the decisions of that body on the issues between THE CONSTITUTIONAL CONVENTION 71 the partisans of the national and of the con- federate plans caused the withdrawal of some state sovereignty members and the abstention of some hesitating unionists. ' Governor Randolph, in his opening speech recommending the national plan of Virginia, said, " We ought to be one nation." A resolu- tion prepared by Gouverneur Morris was early accepted by six States against one, "that a national government ought to be established consisting of a supreme legislative, executive, and judiciary." And it was avowed that this supremacy meant that in collisions of authority between Union and State the former must prevail. Morris enforced his proposition, say- ing, "In all communities there must be one supreme power, and one only. A confederacy is a mere compact, resting on the good faith of the parties. A national, supreme government must have a complete and compulsive opera- tion." Mason, of Virginia, struck the vital chord of our system when he said, " In the nature of things punishment cannot be executed on the States collectively; therefore such a govern- ment is necessary as can operate directly on individuals." Lansing, of New York, who after- wards seceded, moved to give States an equality of power even in the first branch of the national legislature, and said thereupon, " The sense of the Convention on this point will determine 72 EVOLUTION OF THE CONSTITUTION the question of a federal or national govern- ment." His motion was defeated, obtaining but four votes out of eleven, establishing it as the people's government in distinction from that of the States. VI THE DEBATE ON THE LEGISLATIVE ORGANIZATION There was a general conviction that the legis- lature for the Union should be composed of two branches. Pennsylvania appeared to have doubts, and her delegation alone interrupted at the time the unanimity of voices on this vote ; but later they also gave their adhesion. When the next question came, how these two branches should be chosen, the debate became interesting and much more obstinate. Were the States to retain their equality of suffrage as in the Confederacy ? Should all the States have votes proportioned to their popu- lation ? Should this proportion prevail in both branches of the new legislature? Should the members of both Houses be appointed by the legislatures of States or by the people ? Great diversity of opinion appeared on all these points, and particularly between the repre- sentatives of large and of small States. Hamilton demanded that suffrage in the national legislature should be proportioned to the number of free inhabitants. Madison, in- clined to feel his way more cautiously, offered 74 EVOLUTION OF THE CONSTITUTION a resolution which simply declared against equality of suffrage as provided by the Articles of Confederation, and for an equitable ratio of representation instead. He argued that, while "equality of suffrage may be reasonable in a federal union of sovereign States, it can find no place in a national government." This ques- tion was vital to the delegation from Dela- ware, who came specifically instructed to insist on the equality of state suffrage. The larger States felt sharply the injustice which existed for them in any government where a small population, small revenues, and small indus- trial interests should exert an equal influence over legislation with those of vastly greater extent. The small States, on the other hand, feared to be reduced to a nullity, with all their separate interests, if they did not obtain for the future the same equality which had existed in the past. The debate then took a wider range, and brought into collision the nationalists and the federalists on the question whether the members of the proposed Congress of two branches should be elected by the people, or appointed by the legislatures of the respective States. The advocates of state sovereignty de- manded that the state government should furnish the agents necessary to the execution of the affairs of the new Union. They still THE LEGISLATIVE ORGANIZATION 75 clung to the theory of a general government whose powers were delegated by the several States, and not derived from the people them- selves, who were higher authority than the States. The equally logical nationalists, cling- ing to their purpose of a government with in- herent powers, to be conferred by a charter deriving its validity directly from the people, and not through the state governments, de- manded the election of one or both branches by the people. Some extraordinary views were presented by members while advocating their respective theories. " The people should have as little to do as may be about the govern- ment : they lack information and are constantly liable to be misled ; the election ought to be by the state legislatures," said a voice from Con- necticut. Charles Pinckney and John Rutledge also demanded the elective power for the legis- latures of the States, the former regarding the people as incompetent to choose wisely. Said Gerry, of Massachusetts, " The people do not lack virtue, but they are the dupes of pre- tended patriots." On the other hand, Wilson, of Pennsylvania, keen in perception, strong in expression, and able in debate, replied, "Without the confi- dence of the people no government, least of all a republican government, can long subsist Besides, the weight of the state legislatures 76 EVOLUTION OF THE CONSTITUTION ought not to be increased by making them the electors of the national legislature. Vig- orous authority should flow immediately from the source of all authority, — the people. Re- presentation ought to be the exact transcript of the whole society." Mason thought the " larger branch should be the grand depository of the democratic principle of the government. Under the existing confederacy Congress re- presents the States, not the people of the States ; their acts operate on the States, not on indi- viduals. In the new plan of government the people will be represented ; they ought, there- fore, to choose the representatives." Roger Sherman thought the question involved the very existence of state governments. " If it is in view," said he, " to abolish the state govern- ments, the elections ought to be by the people. If they are to be continued, the elections to the national government should be made by them." Alexander Hamilton, opposing his colleague, Lansing, affirmed emphatically, " It is essen- tial to the democratic rights of the community that the first branch be directly elected by the people." Mason added, " It is the only security for the rights of the people." Rutledge claimed that elections by the legislature would be " a refining process." Wilson answered South Carolina with the declaration, " The election of the first branch by the people is not the THE LEGISLATIVE ORGANIZATION tj corner-stone only, but the foundation of the fabric." And this was emphatically true, be- cause the new plan was built upon the sov- ereignty of the people, not on the States. Most of the large States were earnest in repudiating an equal and in demanding a proportional representation in both Houses, and some of the delegates insisted that both should be elected by the people. The patri- otic Dickinson, mindful of his instructions from Delaware, and recognizing as well the necessity of some compromise of opinion be- tween the opposing elements, proposed that one branch should be elected by the people, the other by the legislature, in which Pierce, of Georgia, concurred. It was a sagacious movement towards reconciliation of the States, and was also a step towards the establishment of equal state representation in the second branch of Congress. But Madison strenuously resisted it to the last. He said, "To depart from proportional representation in the Senate is inadmissible, being evidently unjust. The use of the Senate is to consist in its proceed- ing with more coolness, system, and wisdom than the popular branch. Enlarge their num- ber, and you communicate to them the vices they were meant to correct." Dickinson still insisted that " the preserva- tion of the States in a certain degree of agency 78 EVOLUTION OF THE CONSTITUTION was indispensable. The proposed national sys- tem is like the solar system, in which the States are the planets, and they ought to be left to move more freely in their proper orbits." Wilson, who declared himself for the elec- tion of the second branch also by the people in large districts, rejoined, with far-seeing vision, " The States are in no danger of being devoured by the national government : I wish to keep them from devouring the national government. Their existence is made essen- tial by the great extent of our country." The weight of Gerry and of Sherman was thrown on the side of elections to the second branch by the legislature. Charles Pinckney threw into the debate the fruitless suggestion that the States might be periodically divided into three classes, according to their popula- tion, and one, two, or three senators allowed to them, according to their relative importance. The coming result of the long debate was indicated by the forcible remarks of Mason, of Virginia, that " the state legislatures ought to have some means of defending themselves against encroachments of the national govern- ment. What better means can we provide than to make them a constituent part of the national establishment?" The opposition, in order to bring in the smaller States, at last yielded this point of senatorial election by leg- THE LEGISLATIVE ORGANIZATION 79 islatures as preliminary to equality of state representation in the second branch ; and the choice of senators, whatever their number, was by general consent conceded to the state legislatures, and the choice of the first branch was given to the people. There still remained the vital question be- tween large and small States, What should be the ratio of their representation in each of the two Houses? The struggle over this point was so severe and threatening that the vener- able Franklin intervened to moderate its ardor, and begged the disputants to remember that their duty was to consult rather than contend. New Jersey delegates were firmly hostile to any plan which should destroy the equality of the States. The great States, with the excep- tion of New York, were equally determined to maintain their right to a representation proportioned to their numerical superiority. The test was first taken on the first House, representing the people in distinction from the States. The Convention, remembering a former conciliatory proposition to supply the common treasury in the proportion of the number of free inhabitants with the addition of three fifths of other persons, excluding un- taxed Indians, turned to this rule of direct taxation for the ratio of their representation in the national House of Representatives. It So EVOLUTION OF THE CONSTITUTION was only adopted by a majority vote. Mas- sachusetts, Pennsylvania, Virginia, the two Carolinas, and Georgia, in this supported by Connecticut, gave the proposition seven votes, with Maryland divided. New York, overruling Hamilton, placed herself in opposition by the side of New Jersey and Delaware, New Hamp- shire and Rhode Island being absent. Connecticut, having given that very impor- tant vote which made up the majority of all the thirteen States for the preceding proposi- tion, naturally considered herself entitled to a potential voice in settling the question of the second House. Roger Sherman said emphati- cally that each State should have one vote in the Senate. " Everything depends on this : the smaller States will never agree to the plan on any other principle than an equality of suffrage in this branch." But for the time this principle was defeated by a vote of six to five, and the rule of proportional suf- frage already applied to the other House was adopted for the Senate by the same vote of six to five, Maryland and Connecticut join- ing the other three minority States. Only one senator was assured to the small States against several to their more populous competi- tors. Not long afterwards the necessity for further concessions from the Virginia project became apparent, and Franklin, with Davie of THE LEGISLATIVE ORGANIZATION 8i North Carolina, encouraged the demand of the smaller States for equality of representa- tion in the Senate. This equality of the States in that branch seemed to them the only means of saving the Constitution from threatened defeat at its inception. Before this result was reached the debates indicate an agony of experience in the Con- vention, tending to breed despair in the hearts of the most faithful patriots. The Virginia plan, modified and improved, had been suc- cessfully reported, instead of the New Jersey plan, from the Committee of the Whole on June 19th. The "national" idea having been clearly established by the majority, Ellsworth, of Connecticut, who had himself accepted it, saw the propriety of removing from the text a word which gave needless alarm to New Jersey and Delaware ; and he moved the sub- stitution of the description, " the government of the United States," instead of " the national government," in accordance with the sugges- tion of Dickinson. As the substance remained, the majority at once concurred in that propo- sition, and without dissent. But Lansing and Yates, of New York, who had rarely made any contribution towards the harmony of the Convention, and who formed the majority of their state delegation, were resolved against yielding to any concession. Lansing, ignoring 82 EVOLUTION OF THE CONSTITUTION the progress already made, moved a return to the federal plan, and supported it by an inharmonious and discouraging speech, assail- ing the powers of the Convention. Mason responded with indignation against the re- opening of a question which should now be considered as definitely settled by the Con- vention. The motion was of course defeated, and the discussion proceeded upon the manner in which the two Houses should be constituted. Wilson made an effort to lift the eyes of his associates from the narrow ground of local and transient interests. In view of the vast extent of the territory, the immense population destined to occupy it, and the future influence of its government over the whole globe, he said, " I am lost in the magnitude of the ob- ject. We are laying the foundation of a build- ing in which millions are interested, and which is to last for ages. ... A citizen of America is a citizen of the general government, and a citizen of the particular State in which he may reside. The general government is meant for them in the first capacity ; the state gov- ernment in the second. . . . The general government is not an assemblage of states, but of individuals, for certain political pur- poses ; it is not meant for the States, but for the individuals composing them. The individ- uals, therefore, not the States, ought to be THE LEGISLATIVE ORGANIZATION 83 represented in it." He adhered to the idea of popular representation in the Senate as well as the House, and thought senators might be appointed by electors chosen by the people, or by their legislature. The local views and feel- ing would " find their way into the general council, through whatever channel they may flow." Before fixing the number of senators, they discussed their tenure of office, it being ad- mitted that they should retire by classes in such a manner that the body should be more frequently renewed by fractions of its whole number. The terms of four, six, seven, and nine years, and during good behavior, were in turn suggested, the latter, however, failing of support. Gorham, of Massachusetts, and Wilson, of Pennsylvania, proposed the mean of six years, with biennial renewals of one third, which was carried by the votes of seven States against four. Again was presented the question of the voting equality of States in the two Houses as the vital point of discussion, which, from the refusal of some of the members to accept any decision as final, had become not only threat- ening, but exasperating. When Rutledge now brought forward the subject, Martin, of Mary- land, who seemed more persistent in presenting his own views than those of his State, directed 84 EVOLUTION OF THE CONSTITUTION his assault upon a point which perhaps more than any other had been decisively settled, — that this general government was to operate upon individuals and not through the state governments. He went so far as to predict the defeat of the plan by the influence of Governor Clinton in New York. One heated speech produced others, and the strongest men of the Convention met in the fray. All discordant views, ranging from a continuance of the old federation to a solid government of the Union in which States should stand to the general government in the relation of counties to a State, found urgent and sometimes pas- sionate expression. It was afterwards written of that time by one of the participators in the debate, that the Convention was on the verge of dissolution, scarcely held together by the strength of a hair. It was then that the aged Franklin urged his colleagues to invoke pub- licly and daily the aid of the Almighty, that they who labored to build the house might not build in vain. On the following days the debate proceeded with more moderation. Gorham said, impres- sively, " A union of the States is necessary to their happiness, and a firm general government is necessary to their union." "The States," said Madison, in reply to the claim that they each became sovereign by the acquisition of THE LEGISLATIVE ORGANIZATION S5 their independence of England, — " the States never possessed the essential rights of sover- eignty ; these were always vested in Congress. Voting as States in Congress is no evidence of sovereignty. The State of Maryland voted by counties: did this make the counties sov- ereign ? The States, at present, are only great corporations, having the power of making by- laws not contradictory to the general Confed- eration." Hamilton asked if each citizen of Delaware would have less liberty because each citizen of Pennsylvania had an equal vote with him. He said the contest was for power, not for liberty. It was then settled, for the last time, that in the first branch the voting should be in the ratio of population ; and, as to this House, equality of state suffrage was abandoned, though the vote stood six to four, with Maryland divided. In the same improved temper the Conven- tion continued the debate upon the voting power of States in the Senate. Many of the members recognized in the country a wealthy class and a poor class, a gentry and a com- monalty, and remembered that in most if not all of the States at that time there was a pro- perty qualification. These claimed, some that the Senate should represent the aristocratic classes, as the other House did the democratic ; some that it should be so composed as to re- 86 EVOLUTION OF THE CONSTITUTION present the interests of property, which would not find a defence in the popular branch. Both had their influence in taking the election of senators from the people and vesting it in the legislatures, and also in restricting the number of that body. Madison maintained there was no danger to individual States, but there was danger between North and South from difference of climate, and especially from the existence of slavery ; and was inclined to provisions which should give the South advan- tageous powers of defence against the North. Some new propositions, with confusion and excitement, again crept into the discussion before the vote was taken on equal suffrage of the States in the Senate. This vote was now again taken, and resulted in a tie, Georgia being divided in order to save the bad effect upon the Convention of a final defeat of the smaller States. Charles Cotesworth Pinckney then recurred to the suggestion of Franklin for a compro- mise, and moved the appointment of a grand committee, with a delegate from each State, to report a measure covering both branches of the legislature. Roger Sherman indorsed it, saying, " Such a committee is necessary to set us right." The committee was appointed, and consisted of Franklin, Gerry, Ellsworth, Yates, Paterson, Bedford, Martin, Mason, Davie, and THE LEGISLATIVE ORGANIZATION 87 Baldwin. It signified a compromise, for which, in fact, the Convention was prepared, because they knew that New Hampshire and Rhode Island, if present, would convert the minority into a majority. The discussion had clearly proved that it was not really a question of safety to States or liberty to individuals, but a question of relative power between States in legislation affecting their respective interests. As such it must be in some manner compro- mised, and the Convention gave three days to the exclusive service of the committee by an adjournment for that period. Franklin had observed the course of the debate with equal eyes, and no proposition emanating from him could be regarded with suspicion. He was always moderate, always sincere. The committee under his guidance proposed (i) one member in the first House for every forty thousand inhabitants, including all free persons and three fifths of other per- sons ; (2) each State to have an equal voice in the second branch ; (3) the first branch alone to have the power to originate taxes and appropriations. Immediately on presentation of this report it was assailed by Wilson and Madison, the champions of proportional representation, by Butler, and by Gouverneur Morris. The latter said, " State attachments and state importance 88 EVOLUTION OF THE CONSTITUTION have been the bane of our country. We cannot annihilate the serpents, but we may perhaps take out their teeth. . . . Property, not liberty, is the main object of society. The savage state is more favorable to liberty than the civilized, and was only renounced for the sake of pro- perty." Numbers alone, in his opinion, could not furnish a just rule of representation. Rutledge confirmed the statement that "property was certainly the principal object of society." The report was more quietly, but firmly, defended by Ellsworth, Gerry, and Mason. The last said, wearily, " I will bury my bones in this city rather than expose my country to the con- sequences of a dissolution of the Convention without anything being done." Rufus King said, " Property is the primary object of society, and in fixing a ratio ought not to be excluded from the estimate." Butler pronounced " pro- perty the only just measure of representation." Wilson denied that it was the sole or even pri- mary object of government and society. " The improvement of the human mind is the most noble object." And so the question of ratio of representation in the popular branch was, on motion of Gouverneur Morris, again referred, this time to a special committee of five. In addition to the proposer, Gorham and King, both of Massachusetts, with Randolph and Rut- ledge, were appointed on the committee. THE LEGISLATIVE ORGANIZATION 89 The report of this committee of five was confusing to all sides. It proposed fifty-six members of the first branch, at the first elec- tion, and apportioned them among the States in such manner as to give twenty-six to the Southern States and thirty to the Northern. It next provided, in view of progressive changes in wealth and numbers, that the general legis- lature be authorized to augment the number from time to time, and also to fix the number, in case of the organization of new States, on the basis of their wealth and number of inhab- itants. Here was formally introduced the prin- ciple of the representation of wealth. That principle was then adopted, nine States against two, but was not destined to remain. After further reference of the first clause to a grand committee, the Convention accepted their re- port upon it, which changed the number of the first House from fifty-six to sixty-five, and in a proportion which gave the Southern States thirty and the Northern thirty-five members, and ratified it by a vote of nine States against two. In respect to future and increased repre- sentation from old and new States it was con- tended, on the one hand, that the Atlantic States should always retain a majority of re- presentatives over the growing West, which might otherwise by its numbers overrule their 90 EVOLUTION OF THE CONSTITUTION interests ; and, on the other, that the South- ern States would yet have " three fourths of the people of America within their limits ; " and some uniform standard of enumeration should be established which would assure to them a right to proportionate representation. All the States, including the Western, must be treated as equals, and no distinctions were admissible, according to Randolph and Madison. Enumer- ation of population, said others, would be a sufficient indication of relative wealth. The question became commingled with that of slav- ery and that of direct taxation, and involved, also, that of relative political power in States and between different sections of the Union, and produced a long and sharp debate. In the end they fell back on the taxing rule which had been once adopted, and which based popu- lar representation on the number of free in- habitants, with three fifths of the slaves ; and the Convention added a decennial census to regulate the increase of representation in the future. New States were to be governed by the same standard. The question of the Senate was at last regu- lated by an agreement that each State should be represented by two senators, " who shall vote per capital Two opposite political objects were secured by this last senatorial adjustment. The States had an equal representation, as the small THE LEGISLATIVE ORGANIZATION 91 States demanded; but the individuals voted, as the large States desired, and not the States, thus preserving the national principle. The state legislatures became simply electoral bod- ies to provide national senators. It passed by nine votes against Maryland alone. Thus terminated a contest which at one time threat- ened to defeat all the efforts of the Convention for a more perfect Union. The effect of this adjustment was the pacification of the small States, whose delegates largely changed their attitude from hostility to friendship in their rela- tion to the national plan of government. Only once more was their alarm excited. Two days before the Constitution was signed the mode for amending the Constitution in the future was established. It could be amended by a vote of three fourths of the States. Again the small States murmured, fearing hidden dangers to their one right of equality. Their strongest opponent, Gouverneur Morris, thought their apprehensions should be quieted, and moved the proviso " that no State, without its con- sent, shall be deprived of its equal suffrage in the Senate," which was at once adopted without debate or opposition. VII THE DEBATE ON THE JUDICIAL ORGANIZATION Upon the question of establishing a national judiciary the progress of the Convention was less difficult. The tenure of the judges during good behavior and their security from legisla- tive dictation by making their salaries perma- nent were agreed to without opposition when first presented in the Virginia plan. Later, in view of changes in money value and in society itself, increase of salary was allowed, but no reduction. The creation of inferior national tribunals was left ultimately to the discretion of Congress, since a part of the Convention were disposed to make the Supreme Court only a court of appeal from the state tribunals in cases where it should appear that national in- terests were involved. The establishment of inferior courts was op- posed by Butler and Martin, who believed them unnecessary and calculated to stir up the jeal- ousies of state tribunals, with whose jurisdic- tion they will interfere. It was advocated by Gorham, Randolph, Gouverneur Morris, and Mason, who were unwilling to trust state DEBATE ON JUDICIAL ORGANIZATION 93 courts with the administration of national laws. The general and local policy would often be at variance. Circumstances not now foreseen might render the power absolutely necessary. Sherman was willing to give the power, but hoped for the use of the state tribunals when- ever possible. The power to create them was granted to Congress without a formal divi- sion. Touching the jurisdiction of the courts, Mr. Madison proposed that it " extend to all cases arising under the national laws, and to such other questions as may involve the national peace and harmony," and this principle was adopted without opposition. The extent of its jurisdiction was afterwards more carefully de- fined, yet remained so large as in the sequel to cause some apprehension to the States, which made it later the subject of the eleventh amend- ment, adopted in 1798. This amendment re- moved from their possible jurisdiction all suits brought against a State by citizens of any other State or of a foreign country. James Wilson and Gouverneur Morris ad- vocated the appointment of judges by the ex- ecutive alone; John Rutledge and Charles Cotesworth Pinckney, by the legislature ; Mad- ison, Randolph, Sherman, and Martin, by the Senate. Gorham recommended their appoint- ment by the executive, with the advice and 94 EVOLUTION OF THE CONSTITUTION consent of the Senate, which had been long the practice in Massachusetts and had worked with satisfaction. Sherman thought the judi- cial appointments should be diffused among the States, and the Senate would be more likely to do this than the executive. Mason said if the judges were to try impeachments of the executive they ought not to be selected by him. Gouverneur Morris did not want the Supreme Court to try impeachments. Being at the seat of government they might be drawn into intrigues with the legislature and even be previously consulted in the interest of the pro- secution. This provision was then struck out of the scheme. It was proposed to make the judges remov- able by the executive on application of the two Houses of Congress ; but it had only the sup- port of Connecticut and was rejected. This removal, it was decided, could only be made by regular process of impeachment, as in the case of all civil officers of the government. As reported by the Committee of Detail the judicial clause did not give jurisdiction of cases " arising under this Constitution," but only to those " arising under the laws of the United States, and treaties," etc. The learned Dr. Johnson moved to insert the former clause. Mr. Madison objected to the enlargement, fear- ing it gave a general right of expounding the DEBATE ON JUDICIAL ORGANIZATION 95 Constitution beyond cases of a judiciary na- ture. But the Convention accepted it without further dissent, considering that it would in application be limited to cases " of a judiciary nature." VIII ORGANIZATION OF THE EXECUTIVE POW^R It will be remembered that the Virginia plan proposed the election of the executive author- ity, however it might be composed, by the na- tional legislature. When that question came up for debate on June 2, Mr. Wilson offered a resolution for the election of the executive magistracy by electors, who were to be chosen by the qualified voters of districts into which the States should be divided ; and all these elec- tors so chosen should assemble and make the final election, being themselves ineligible to that office. Only Pennsylvania and Maryland supported him ; and the eight other States sup- ported Mr. Randolph's proposition for the elec- tion by the national legislature, though it was opposed by Mr. Gerry. All were then doubt- ful whether the executive should be single or plural, being mindful, on the one hand, of the exercise hitherto of executive functions by a plural committee designated by the Cengress ; and, on the other, of the aspect of monarchy, in many eyes, if a single person should be in- vested with the authority. Dr. Franklin wished that the executive ORGANIZATION OF EXECUTIVE POWER 97 shi&uld have n® compensation, but his expenses should be paid. He feared te combine both ambition and avarice — love of power and love of mcj^ney — in the same person. He did not act from a desire to save the amount of the salary, but to leave no personal motive in seek- ing the place except the love of honor and the public service; and he recalled the great ex- ample of Washington as cemmander-in-chief. He was heard with great respect, but without conviction, and with a feeling that his proposal was impractical. Mr. Dickinson and Mr. Bedford desired the executive to be removable by the national legis- lature on request ©f a majority of the state legislatures. Mr. Mason held this to be a "violation of the fundamental principles of g^od government," in which Mr. Madison and Mr. Wilson concurred. Delaware alone sup- ported it. Mr. Wilson moved that the executive consist of a single person, and Mr. Charles Pinckney supported him. Great shyness, said Mr. Rut- ledge, was exhibited by gentlemen in taking position on that question, for the motion was followed by a significant silence. For himself, he preferred one man, because " a single man would feel the greatest responsibility, and ad- minister the public affairs best ; " but he would not give to him the powers of peace and war. 98 EVOLUTION OF THE CONSTITUTION Mr. Sherman would leave the number of the executive to the legislature, by whom they ought to be appointed from time to time as they thought best. It was the legislative will that was to be executed, and the executive should be accountable to it alone. Mr. Gerry would annex a council to the executive, and thought a legislative election would cause per- petual intrigue. Mr. Randolph strongly op- posed a single executive, which " he regarded as the foetus of a monarchy." Mr. Madison, observing the apprehensions of monarchical authority in the minds of members, wisely sug- gested that before decision on this point the Convention should define the powers to be in- trusted to the executive. So they proceeded to this, and to the other question of method of appointing the executive ; and Mr. Wilson still desired in some manner an election by the people, as was the case of governors of the States. Mr. Sherman still insisted that a re- moval of the executive from dependence on the legislature was " the essence of tyranny." Mr. Gerry suggested his appointment by the execu- tives of the States. Then they passed to the question of the term of office, for which Mr. Wilson proposed three years, with reeligibility, supported by Mr. Sherman, who was against rotation "as throwing out of office the men best qualified ORGANIZATION OF EXECUTIVE POWER 99 to execute its duties." Mr. Mason was for seven years and non-reeligibility, fearing " in- trigue with the legislature for reappointment." Mr. Bedford was for three years, and ineligi- bility after nine years. Seven years was accepted by New York, New Jersey, Pennsylvania, Delaware, and Vir- ginia, against Connecticut, North Carolina, South Carolina, and Georgia, with Massachu- setts divided ; and the principle of ineligibility a second time was agreed to by seven States against Georgia and Connecticut, with Penn- sylvania divided. On the motion of North Carolina, the executive was made removable by impeachment for certain causes. Debate being resumed on the number of the executive, Messrs. Rutledge and Charles Pinck- ney, supported by Butler, were earnest for a single executive, because he would be more im- partial, being responsible to the whole. With three, there would be a constant struggle for local advantages. Mr. Butler had seen its evil effects in Holland. But Mr. Randolph was wholly against unity in the executive, which would fail to win that general confidence which three persons from different parts of the coun- try would inspire. It was the semblance of monarchy. Mr. Wilson again advocated the unity with powerful arguments, and denied its alleged unpopularity, affirming that the people loo EVOLUTION OF THE CONSTITUTION were accustomed to it in the head of their state governments. The sturdy Sherman was inclined to agree with him, but wanted to asso- ciate a council, to make it more acceptable. A single executive was finally agreed to by seven States, against New York, Delaware, and Maryland, after much argument and citation from other countries and other times. The Virginia clause relating to a council of revision was taken up and severely criticised ; and the whole question of a revisionary power over legislative enactments — of an absolute and of a qualified veto — was searchingly ex- amined. Convincing objections were offered to the participation of the judiciary in such revision, which was desired by New York, Vir- ginia, and Connecticut. It was claimed that the judiciary should be free to construe the laws, without incurring a bias by intervention in the making of them. Mr. Gerry and Mr. King, instead of a council of revision, would give the executive a negative on all laws, but subject to be overruled by a large majority of the legislative body. Mr. Wilson believed an absolute negative necessary for the self-defence of the executive, without which " the legislature can at any moment sink it into non-existence." Mr. Hamilton was of the same opinion, and, for evidence that its excessive use need not be feared, remarked that the power had not been ORGANIZATION OF EXECUTIVE POWER loi used in England since the Revolution. Mr. Sherman could not give power to one man to override the will of the whole. Mr. Butler also resisted the absolute negative. Mr. Bedford was opposed to every check on the legislature. Mr. Mason appealed to fears of what would practically be an elective monarchy, and thought it would be sufficient if the power was given to " suspend offensive laws till they shall be coolly reviewed, and the objections overruled by a greater majority than that necessary to pass them in the first instance." Dr. Franklin als® interposed his veice against the absolute nega- tive, and feared the increase of executive p«wer " till it should end in monarchy," and favored a qualified negative. At the close of the com- mittee's debate on this point all ten States voted against the absolute vet^. At last, and after further debate, the Convention accepted Mr. Gerry's motion for an executive veto, with power in two thirds of the legislature to over- rule it, Connecticut and Maryland voting no ; and it so passed into the Constitution. Recurring to the mode of electing the ex- ecutive, the Convention refused to adopt Mr. Gerry's motion for his election by the state executives, leaving it unsupported by a single State. On the 17th of July, after a long and exciting debate over the constitution of the Senate, the question of the executive was again 102 EVOLUTION OF THE CONSTITUTION resumed by the Convention. It was now agreed without dissent that it should consist of a single person. His election by the national legislature was, however, strenuously resisted. Gouverneur Morris argued that in that case " he would be the mere creature of the legisla- ture." His election would be " the work of in- trigue, of cabal, and of faction ; it will be like the election of a pope by a conclave of cardinals ; real merit will rarely be the title to the appoint- ment." The citizens should elect him. Roger Sherman thought "the sense of the nation would better be expressed by the legislature than by the people at large, who would gener- ally vote for some man from their own State." In this view he was supported by Charles Pinck- ney, by Mr. Mason, who thought it as wise to " refer a trial of colors to a blind man," as this election to the people ; and by Dr. Williamson, of North Carolina. Mr. Wilson supported Mr. Morris ; but they were for the time defeated by a vote of nine States against Pennsylvania. Mr. Martin, of Maryland, moved his election by electors appointed by the state legislatures, which proposition then received only two votes. The election by the national legislature was still allowed to stand, and his powers were next considered. The executive was charged with the exe- cution of " the national laws," and authorized ORGANIZATION OF EXECUTIVE POWER 103 "to appoint to offices in cases not otherwise provided for " without opposition. On the question of his non-eligibility for a sec- ond term of office, as proposed in the Virginia scheme, Gouverneur Morris said " it tended to destroy the great motive to good behavior, — the hope of being rewarded by a reappoint- ment. It was saying to him, * Make hay while the sun shines/" This provision was then struck out by a vote of six States against Delaware, Virginia, and North and South Carolina. On the question of a term of seven years, Mr. Broom, of Delaware, in view of the fact that the executive would now be reeligible, moved to reduce the term. Dr. McClurg, on the contrary, to rescue him from a constant and servile dependence on the legislature electing him, moved a term "during good behavior." Gouverneur Morris gladly seconded him, say- ing, " This was the way to get a good govern- ment," and Mr. Broom concurred. Roger Sherman opposed it : " If he behaves well, he will be continued ; if otherwise, displaced ; this was equivalent to a term during good behav- ior;" and he was supported by Mr. Mason. Mr. Madison said, " Experience has shown a tendency in our government to throw all power into the legislative vortex. The executives of the States are little more than ciphers, the legis- 104 EVOLUTION OF THE CONSTITUTION latures omnipotent." The executive should not be dependent on the legislature. Dr. McClurg's motion was lost by the votes of Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia (6), against New Jersey, Pennsylvania, Delaware, Virginia (4). "But the affirmative vote," says Mr. Madison," was given from motives of expe- diency rather than conviction, in order to force some mode of rendering him independent of the legislature." On the 19th of July the question again re- curred on the reeligibility of the chief magis- trate, and mingled with it the mode of his elec- tion. Gouverneur Morris made a vigorous and impressive argument for greater independence in the executive. Recalling the maxim that republican government is not adapted to a large extent of country, because the executive magistracy cannot reach the extreme parts of it, he said, " Our country is an extensive one. We must then either renounce the blessings of the Union or provide an executive with suffi- cient vigor to pervade every part of it." *' The legislature will continually seek to aggrandize and perpetuate themselves." "The executive magistrate should be the guardian of the peo- pie, even of the lower classes, against legisla- tive tyranny, — should be the great protector of the mass of the people." He saw " no alter- ORGANIZATION OF EXECUTIVE POWER 105 native for making the executive independent of the legislature but either to give him his office for life or make him eligible by the people." Mr. Randolph was moved to acknowledge that if he was reeligible by the legislature he would be no check on them : he would court a reap- pointment. His revisionary power over laws would be of no avail. He would therefore make him ineligible to a second term instead of providing another mode of election. Mr. King was much struck by Mr. Sher- man's observation, that " he who has proved himself most fit for an office ought not to be excluded by the Constitution from holding it ; " and he preferred another plan of election. Mr. Paterson agreed with Mr. King, and pro- posed an election by electors to be chosen by the States. Mr. Wilson was glad to see the idea of a mediate or immediate popular election gaining ground. Mr. Madison thought there was equal or greater reason " why the executive should be independent of the legislature than why the judiciary should be." Mr. Gerry would have him chosen by electors selected by the state executives. " The people of the States will then choose the first branch, the legislatures of the States the second branch of the national legislature, and the executives of the States the national executive. This would form a strong attachment in the States to the national system." io6 EVOLUTION OF THE CONSTITUTION On the motion to reconsider the question it was carried unanimously. Mr. Ellsworth then moved for electors to be appointed by the state legislatures. The clause providing for electors was carried by Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia (6), against North Carolina, South Carolina, and Georgia (3), with Massachusetts divided. The clause for their appointment by the state legislatures received eight votes, against Virginia and South Carolina. The effort to make the executive ineligible to a second term now failed, only North Carolina and South Carolina supporting it. All this was followed by a change of front on the question of length of term, which had been fixed at seven years. Connecticut, South Caro- lina, and Georgia still supported it, and North Carolina and Massachusetts were divided ; but the rest were against it. Mr. Ellsworth pro- posed six years, and was supported by Dr. Williamson. It was adopted by all other States against only Delaware. It was first proposed by Mr. Gerry to allot from one to three electors to the States, ac- cording to their importance. But Dr. William- son, of North Carolina, thought that in future elections the electors should be according to the number of state representatives in the first branch of the national legislature. Mr. ORGANIZATION OF EXECUTIVE POWER 107 Gerry's ratio was adopted, six States to four, only to be afterwards changed. And they pro- ceeded to consider the liability of the execu- tive to impeachment. It was contended on the one side that he ought to be exempt, because if he did wrong he would have coadjutors who could be pun- ished, and if reelected it would be proof of his innocence. It would render him dependent on the impeaching authority. On the other side it was claimed nobody could be permitted to be beyond the law and above justice. The princi- pal, as well as coadjutors, should be punished. Dr. Franklin thought the clause was favorable to the executive, because, without it, here as in the Old World, if not legally removable, resort might be had to assassination, which would shut off all opportunity to prove his innocence, which he might do in case of impeachment. Gouverneur Morris thought the causes of im- peachment ought to be enumerated and de- fined. Mr. Madison said the executive might lose his capacity, be guilty of negligence or perfidy, and the community should have a de- fence against these chances. His " incapacity or corruption might be fatal to the republic." Mr. King feared " an extreme caution in favor of liberty might enervate the government they were forming." "Under no circumstances ought he to be impeachable by the legislature, as io8 EVOLUTION OF THE CONSTITUTION this would be destructive of his independence." Gouverneur Morris admitted he ought to be impeachable foi^ treachery, bribery (Charles II. had been bribed by Louis XIV.), corruption, and incapacity. But it should be by a mode not making him dependent on the legislature. And the liability to impeachment was carried in the affirmative by eight States, against Massa- chusetts and South Carolina. It was then unanimously agreed that he should have a fixed compensation, to be paid out of the national treasury, New Jersey alone voting against the latter clause ; and with unanimity that no elector should be eligible to the chief magistracy, nor be a member of the national legislature, nor an officer of the national government. It was further agreed the electors should be paid out of the national treasury for their services. Another effort was made by some of the very ablest men in the Convention to associate with the chief magistrate the judges, as a coun- cil for the revision of laws. Mr. Madison re- newed the expression of his fears that "the legislature would still be an overmatch " for the two other departments of the government, as there was " a powerful tendency in the legis- lature to absorb all power into its vortex. This was the real source of danger to the American Constitution." Mr. Gorham, on the contrary, ORGANIZATION OF EXECUTIVE POWER 109 said, "Judges were not presumed to possess any peculiar knowledge of the mere policy of public measures." He thought it only neces- sary, at most, "to authorize the executive to call on the judges for their opinions." Mr. Gerry and Mr. Strong agreed with him, and Mr. Martin joined in this opposition. After able argument and much contrariety of opinion between States and in their delegations, the motion failed by four States voting no, three aye, two divided, and one absent. Upon reconsideration of the resolution pro- viding for electors, there was again a protracted debate, which seemed more to disintegrate than consolidate opinions. Dr. Williamson would go back to the first proposition for elec- tion by the national legislature, with ineligibil- ity for a second term. " It was pretty certain that we should at some time or other have a king ; but he would omit no precaution to post- pone the event as long as possible." Mr. Gerry proposed a refining process, that state legisla- tures should vote for the national executive by ballot, in proportion to the assigned electoral votes; failing of election by a majority, the first branch of Congress to choose two out of the four major candidates voted for; and from these two the Senate to choose one. Mr. Wil- son thought to solve their perplexities by elect- ing him for six years, the elective body being no EVOLUTION OF THE CONSTITUTION (say) fifteen persons chosen out of the national legislature by lot, and to retire immediately for the election to avoid intrigue, and not to separate without an election: but the best mode was a resort to the people. No progress was made to a concentration of opinion. Mr. Mason laughed at an election of President by " a lottery." These and other propositions were voted down. Mr. Madison observed, " There were objections against every mode that had been, or perhaps could be, proposed," and re- viewed the various possible methods of election, with the conclusion that the only safe alter- natives were an election by the people, or by electors chosen by the people. Mr. Mason and Mr. Butler admitted the danger of foreign influence, and of cabals, in the case of election by the national legislature, and the latter was against reeligibility in any case. Gouverneur Morris, on the contrary, was very positively against rotation in office. " It formed a political school in which we were always governed by the scholars, and not by the masters." Then it was suggested that every voter should vote for plural candidates, not more than one of whom should be a citi- zen of his own State, in which case the second choice of each might be the best choice of all. Dickinson thought the election by the people was "the best and purest source." Mason ORGANIZATION OF EXECUTIVE POWER in thought it best to return to the original plan, and despairing of more unanimity on any new proposition, the Convention reinstated it, and it went in that form to the Committee on Detail. This committee reported accordingly that the executive should have the style " The Pre- sident of the United States," and should be elected by the legislature by ballot. (The title of President was then borne by Franklin as chief magistrate of Pennsylvania.) Attention was called to the necessity of inserting the word " joint " before ballot, or the two Houses might negative each other's choice; and it was inserted. The motion to take the vote by States was defeated ; the motion requiring a majority of personal votes was adopted, ten States to one. Then the old question of Presidential electors was again raised and argued, and only failed by an equality of votes, four to four, two di- vided, and one absent. The question was sub- sequently referred to a committee of eleven, who reported a plan which tended to concen- trate opinions. It fixed his term at four years, with reeligibility, and provided for electors to be selected in each State as its legislature should direct, and equal in number to its total representation in the two Houses of Congress. They were to vote in their respective States, and not in a general college as at one time proposed. 112 EVOLUTION OF THE CONSTITUTION Thus they were removed from foreign influ- ence, from the danger of cabals and intrigues ; and this mode left the President independent of the legislature, while the term was so short as to prevent usurpation of power for personal objects, and went far to obviate objections be- fore made to his reelection. There were still criticisms, but this method finally prevailed and was inscribed in the Constitution. Upon no other subject did the opinion of the Con- vention so often sway to and fro as upon this. But the experience of a century has, in the main, justified the system, saving, perhaps, the duration of the term fixed at four instead of six years. On the point of reeligibility there has never been any answer to the old question. Why should not the people be allowed to reelect a good officer satisfactory to them in the admin- istration of his office ? And the term of four years was fixed because of this reeligibility. On the other hand, there has never been a satisfactory answer to the other old question, How can the selfish desire for a reelection be prevented from influencing the public con- duct of an officer if he is reeligible ? And there seems to be no answer which involves less than a change in the nature of man. The fathers limited as far a's possible the selfish motive by confining it to actions which would ORGANIZATION OF EXECUTIVE POWER 113 benefit the majority of men, and which should be favorable to their interests as the great constituency which could give or refuse the reelection. At the same time, his conscience was subjected to his ambition in respect to actions which should excite popular clamor or applause. IX OTHER SPECIAL PROVISIONS OF THE CONSTITUTION Until the Committee of Detail was appointed, the Convention had sought to confine their dis- cussions to the outline of organization and to the broad principles of a government for the Union. The first battle, and that of the highest importance, had been fought for position. The fundamental question had been, Should the government be founded upon the States, or upon the people of the United States ? Should it be a compact — a league — between sover- eign States, as was the Confederacy, or should it be a single national government, extending behind the chartered States, and reposing upon the American people? It had been decided in favor of the united people; and that they, not the States, should constitute the new gov- ernment, " to consist of a supreme legislative, executive, and judiciary." The second vital struggle had been upon the two questions. How shall the local inter- ests of the small States find protection in gen- eral legislation against the interests of the great States, represented as the latter would OTHER SPECIAL PROVISIONS 115 be by an immense numerical majority ? How shall the greater wealth and population of the large States be secured against the practical control of the minority, if proportional repre- sentation is disallowed? These questions had been settled by giving the small States an equal representation in the second branch, and to the large States their proportional number of the first branch. It had been further decided that both Houses should have the power to originate legislation. But as the power to tax and to regulate com- merce had been the great argument of the more populous States in favor of proportional representation in both branches, it had been agreed by the smaller States, " that all bills for raising or appropriating money, and for fixing the salaries of the ofiicers of the govern- ment, shall originate in the first branch, and shall not be altered or amended by the second branch ; and that no money shall be drawn from the public treasury but in pursuance of appro- priations to be originated by the first branch." It had been further agreed, touching the gen- eral powers of Congress, that they should have all the legislative rights before vested in the Confederacy; "and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are sepa- rately incompetent, or in which the harmony ii6 EVOLUTION OF THE CONSTITUTION of the United States may be interrupted by the exercise of individual legislation." The legislative acts of the United States, made by virtue and in pursuance of the Ar- ticles of Union, and all its treaties, it was declared, " shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens or inhabitants ; " " anything in the respective laws of the individual States to the contrary notwithstanding." All these, together with other resolutions adopted, amounting to twenty-three in number, and representing all the solid results of the debates of the Convention since the 25th of May, were, on the 26th day of July, referred to a " committee of detail," which had been selected by ballot, and was composed of Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson, two from the Southern and three from the Northern States, and all of them possessed of notable strength of intellect. The original propositions of Mr. Paterson, and of Mr. Charles Pinckney (of which latter no authentic copy remains) were referred to the same com- mittee. Their commission imposed on them the most important and laborious duty of translating these principles into detailed measures suit- able for a constitution; and the Convention OTHER SPECIAL PROVISIONS 117 suspended its sessions until August 6th to leave the committee free for that work, which was to develop the vital germ of the republic. In the report of this committee, made on the 6th of August, the Constitution opened with the recital, " We, the people of the States of New Hampshire," etc., naming each of the thir- teen States, " do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity." The Com- mittee of Revision afterwards struck out the names of all the States and established the clause, " We, the people of the United States, do ordain," etc. The name given to the gov- ernment was " The United States of America." The two legislative branches were now called the House of Representatives and the Senate, and together were styled a " Congress." Each House was to choose its own presiding officer. Power was given to Congress to establish uni- form qualifications of its members in regard to property. The representatives and senators were disqualified from holding any office under the United States during the time for which they shall respectively be elected, and senators also for one year afterwards. Their compen- sation was to be paid by the State in which they were chosen. The first House alone had the power of impeachment ; the trial body to be the Supreme Court. ii8 EVOLUTION OF THE CONSTITUTION The enumeration of legislative powers was very short, and on some of these limitations were imposed. No navigation act could be passed without the assent of two thirds of the members present in each House. No tax or duty could be laid on exports nor on the mi- gration or importation of such persons as any State should permit to enter. To the Senate was given the power to make treaties, and to appoint ambassadors and judges of the Supreme Court. They were also em- powered — through elaborate provisions — to try and decide controversies between States which involved their respective jurisdictions or territory ; and, further, to determine conflicting land-grants in certain cases. But this judicial function was later transferred to the Supreme Court. To the States certain prohibitions were ap- plied, including that against entering into any agreement or compact with another State, or emitting bills of credit, or making anything but specie a legal tender. In case of the ad- mission of new States a vote of two thirds of the members voting in each House was re- quired. These and other details opened a wide field for debate. The Convention, upon hearing the report of the committee, adjourned to consider it be- fore engaging in discussion. This draft of the OTHER SPECIAL PROVISIONS 119 Constitution provided for annual meetings of Congress on the first Monday of December, for which the Connecticut members were stren- uous advocates. Mr. King thought it would not be necessary to meet every year. "A great vice in our system was that of legislating too much." Mr. Madison and Mr. Mason opposed fixing the time by the Constitution : it should be regulated by law. On Mr. Randolph's mo- tion the words were then added, " unless a dif- ferent day shall be appointed by law ; " and on Mr. Rutledge's motion the Congress was ex- pressly required to meet once in every year. A question was raised on the clause which made the electors of the most numerous branch of the state legislature also qualified electors of the national House. Gouverneur Morris, Mr. Fitzsimons, and Mr. Mercer were in fa- vor of restraining the suffrage to freeholders. Messrs. Ellsworth, Wilson, Mason, Rutledge, and Franklin were against it. " Give the votes to people who have no property," said Mr. Mor- ris, " and they will sell them to the rich who will be able to buy them." Mr. Madison said, " Viewing the subject on its merits alone, the freeholders of the country would be the safest depositories of public liberty." Dr. Franklin thought it " of great consequence that we should not depress the virtue and public spirit of our common people" by ignoring their rights of 120 EVOLUTION OF THE CONSTITUTION suffrage under the general government. The clause was sustained by seven States against Delaware, with Maryland divided, and Georgia absent. A representative was required to have been "a citizen in the United States for at least three years before his election." Mr. Mason "did not choose to let foreigners and adven- turers make laws for us and govern us." The time was too short to give that local know- ledge which a representative should have, and he moved te make it seven years. All the States agreed to this except Connecticut. The prior citizenship for senators had been fixed at four years. A term of fourteen years' prior citizenship was proposed by Gouverneur Mor- ris. Mr. Pinckney said, in view of the treaty- making power, " there is peculiar danger and impropriety in opening the door to those who have foreign attachments. The Athenians made it death for any stranger to intrude his voice into their legislative proceedings." Were it not for the Revolutionary services of some who were alien-born, Mr. Mason would restrict eligi- bility to the Senate to natives only. Mr. Butler remarked on the danger of introducing " ideas of government so distinct from ours." Mr. Wil- son and Dr. Franklin were against illiberality on this question. Gouverneur Morris, with his usual frank audacity, declared, "As to those OTHER SPECIAL PROVISIONS 121 philosophical gentlemen, those citizens of the world, as they called themselves, he owned he did not wish to see any of them in our pub- lic councils. He would not trust them. The men who can shake off their attachments to their own country can never love any other. These attachments are the wholesome preju- dices which uphold all governments." At a later discussion, Mr. Mason expressed his fears that immigrants attached to Great Britain might work their way into our councils, and be per- nicious in action upon commercial regulations. " The great houses of British merchants would spare no pains to insinuate the instruments of their views into the government." Various terms were proposed and voted down, until nine years was offered and adopted for the prior citizenship of senators. Mr. Madison objected to the ratio of one representative for forty thousand inhabitants as, in the future, rendering that House a too numerous body. Mr. Gorham replied, " It is not to be supposed that the government will last so long as to produce this effect. Can it be supposed that this vast country, including the western territory, will, one hundred and fifty years hence, remain one nation ? " And no prophetic voice answered him, that one hundred years after that Convention should adjourn the representatives of sixty millions of 122 EVOLUTION OF THE CONSTITUTION people, extending from the highest lake in the north to the mouth of the Mississippi, from the ocean on the east to the ocean on the west, from a doubled and redoubled extent of terri- tory, with the terrible curse of slavery abolished from it all, should assemble around the build- ing in which his hopeless inquiry was made, and celebrate in joy, in happiness, in prosperity, and in the hope of future centuries of union, the centennial anniversary of their great act ! Mr. Ellsworth attached his hopes to future alterations which might be made in the Con- stitution ; and on motion of Mr. Madison and Mr. Sherman the ratio was made " not exceed- ing forty thousand," with the proviso that each State should have at least one representative. On the last day of the Convention General Washington for the first time addressed the Convention on any point of debate. It was to ask their unanimous support of an amendment, offered by Mr. Gorham, to substitute thirty for forty thousand. He requested it in order to conciliate those who feared to intrust the legis- lative powers to so small a body. The change was unanimously made. Messrs. Pinckney and Rutledge did not like the clause which empowered Congress to over- rule the States in their regulation of the times, places, and manner of holding elections for senators and representatives. Messrs. Gorham, OTHER SPECIAL PROVISIONS 123 Madison, and Gouverneur Morris sustained it as a necessary power to prevent abuses of their discretion by the States, false returns, defal- cations of duty, improper voting districts, etc. Mr. King interjected the remark, "Although the scheme of erecting the general government on the authority of the state legislatures has been fatal to the Federal establishment, it would seem as if many gentlemen still foster the dan- gerous idea." The Convention on vote retained the power of both original and revisionary con- trol over the States, except as to the place of choosing senators. The same gentlemen proposed a fixed pro- perty qualification for the President, for judges, and for congressmen. Mr. Ellsworth and Dr. Franklin resisted it, both on principle and for expediency ; and, on voting, the " no " was so general that the vote by States was not asked for. The question of national control of the dis- cipline of the state militia was referred to a "grand committee" of one from each State. Mr. Dickinson and others thought " the States never would nor ought to give up all author- ity over the militia." Mr. Butler and others thought it should be submitted to the au- thority which was charged with the general defence: the States would never secure uni- formity of discipline or effectiveness of organ- 124 EVOLUTION OF THE CONSTITUTION ization. Mr. Gerry thought this the last point to be surrendered. " If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain." This question, like many others, was settled on middle ground by giving to the United States the power to organize, arm, and discipline the militia, and to govern them when employed in the national service, leaving to each State the appointment of officers and the training of the force. Gouverneur Morris also submitted several propositions organizing a Council of State to assist the President, consisting of the Chief Justice, a Secretary of Domestic Affairs, a Sec- retary of Commerce and Finance, a Secretary of Foreign Affairs, a Secretary of War, a Sec- retary of the Marine, and a Secretary of State, and outlining the duties of each. These went to the same committee, and were favorably reported, adding the Speaker of the House to the Council. But it was not approved by the Convention, which preferred individual respon- sibility, with only the aid of chiefs of executive departments. Mr. Mason moved to insert a power "to enact sumptuary laws," with a view to the im- provement of manners. It was briefly opposed by Ellsworth, Morris, and Gerry, and defeated, eight States to three. The clause respecting treason was thought OTHER SPECIAL PROVISIONS 125 by Mr. Madison to be too narrow ; that greater discretion should be given to Congress to define it. Gouverneur Morris was for giving to the Union "an exclusive right to declare what should be treason. In case of a contest be- tween the United States and a particular State, the people of the latter must, under the clause as it stood, be traitors to the one or the other au- thority." Dr. Johnson contended that treason " could not be both against the United States and individual States, being an offence against the sovereignty which can be but one in the same community." The Convention decided without dissent to strike out of the clause what related to the States, leaving the definition to apply to the United States only. Upon recon- sideration and further debate, the Convention came back to the same conclusion upon a divided vote, and leaving the point unsettled whether there could be a double treason, or that treason against a State was necessarily treason against the United States, and to be prosecuted as such. In the article enumerating the powers of Congress, authority was given " to make war." Mr. Pinckney thought its proceedings would be too slow, its numbers too great ; and that the Senate alone, being charged with foreign affairs as it was, would be the better repository of this power. Mr. Butler would vest the power 126 EVOLUTION OF THE CONSTITUTION in the executive, who "will not make war but when the nation will support it." Messrs. Madison and Gerry moved to substitute the words " declare war," for " make war," so as to leave the power in the executive to repel at- tacks ; and this was agreed to. Mr. Madison, ever full of forethought, and anxious that future events should not confront a defective Constitution, presented an enumera- tion of twenty-one additional powers in Con- gress, including the following : — " To establish an university." " To encourage by premiums and provisions the advancement of useful knowledge and dis- coveries." " To establish seminaries for the promotion of literature and the arts and sciences," and institutions and rewards for promotion of agri- culture, commerce, trades, and manufactures. " To grant charters of incorporation." All these were referred to the Committee of Detail, but were not reported. Afterwards Messrs. Madison, Pinckney, and Wilson brought the question of the power to establish a university before the Convention by a motion to add this to the list of congressional powers. Gouverneur Morris replied, " It is not necessary. The exclusive power at the seat of government will reach the object." Upon the vote, Pennsylvania, Virginia, and the two Caro- OTHER SPECIAL PROVISIONS 127 linas were forgiving the express authority, with Connecticut divided. But the other six States were against it. THE ELEMENT OF SLAVERY. It is not within the purpose of these histori- cal notes to review that portion of the debates which relates to questions no longer of prac- tical concern. The institution of slavery in many of the States interposed great obstacles, alike to the agreement of the Convention upon a Constitution, and to its ratification by the States. It is known to all that it continued to be a source of discord also in the Union until, seventy-five years later, it nearly caused the dissolution of the Union itself which had been created with so much patriotic toil and devo- tion. Its disappearance from our continent is therefore a new element of happiness for us which was denied to our constitutional fathers ; and justifies more faithful hopes of the per- petuity of the Union which they founded. INCORPORATIONS AND INTERNAL IMPROVEMENTS. Dr. Franklin, mindful of the need of con- necting and improving communications by water routes, moved to add the power " to pro- vide for cutting canals where deemed neces- sary." Mr. Sherman objected, that the expense would fall on the United States, the benefit 128 EVOLUTION OF THE CONSTITUTION accrue to the localities. Then Mr. Madison proposed to enlarge it into a power " to grant charters of incorporation, where the interest of the United States might require, and the legis- lative provisions of individual States may be incompetent." He desired to facilitate com- munication between the States. " The politi- cal obstacles being removed, a removal of the natural ones as far as possible ought to follow." Mr. Randolph seconded him. Mr. King thought the power unnecessary. Mr. Wilson thought it " necessary to prevent a State from obstructing the general welfare." Mr. King replied that the States would be divided into parties by the proposition. In Philadelphia and New York they would refer it to the establishment of a bank, about which the two cities were in contention. Elsewhere it would be referred to mercantile monopolies. Mr. Wilson spoke of the importance of ca- nals to reach the Western settlements. " As to mercantile monopolies, they are already in- cluded in the power to regulate trade." On this last point Mr. Mason differed from Mr. Wilson, and was for limiting the power to the single case of canals. The question was first taken upon the authority for canals ; this being refused by all the States except Pennsylvania, Virginia, and Georgia, the whole clause was dropped. OTHER SPECIAL PROVISIONS 129 And with this short debate, the entire ques- tion of schools and universities, of canals, high- ways, internal improvements, with countless millions of money involved, and of all char- tered corporations, was left to the future in- terpretation of the other powers granted to Congress. The necessities of the country, developed by its growth and by the discovery of steam-power applied to locomotion, have forced an enlarged construction of the Con- stitution in the line indicated by the remark of Mr. Wilson, and rejected by Mr. Mason. These two statesmen unwittingly became the founders of two rival schools of Constitutional interpretation, whose disputes have had no end, though that of Mr. Wilson has prevailed in the legislation of Congress. IMPEACHMENT. It was first decided by the Convention to give the Supreme Court the trial of all im- peachments of public officers. But after giv- ing to the executive the power of appointment of the judges, it was argued that his influ- ence over that court would be too great, and that the chances of intrigue must be avoided ; and the trial of impeachments was transferred to the Senate. Here again it was objected, that as the Vice- President, presiding over the Senate, would I30 EVOLUTION OF THE CONSTITUTION succeed upon conviction of the President, he was directly interested in the result. To obvi- ate this serious obstacle it was provided that on such trial he should leave the chair, and the Chief Justice should preside. In order further to remove objection to the trial of the execu- tive by a mere political body, a judicial char- acter was given to them for this emergency, by requiring that in this capacity the senators should be under special oath. This settlement was made only after many expressions of conflicting opinions, and much uncertain debate, during which the Conven- tion seemed to be feeling its way to a wise conclusion. NATIONAL CONTROL OVER STATES IN THE ELECTION OF MEMBERS OF CONGRESS. In framing the details of the Constitution the committee reported this clause: "The times and places and manner of holding the election of members of each House shall be prescribed by the legislature of each State ; but their pro- visions concerning them may at any time be altered by the legislature of the United States." Upon its consideration in Convention, Messrs. Pinckney and Rutledge moved to strike out the last clause, which gave revisionary control to Congress. Mr. Gorham said : " It would be as improper OTHER SPECIAL PROVISIONS 131 to take this power from the national legislature as to restrain the British Parliament from regu- lating the circumstances of elections, leaving this business to the counties themselves." Mr. Madison added stronger expressions : "The policy of referring the appointment of the House of Representatives to the people, and not to the legislatures of the States, sup- poses that the result will be somewhat influ- enced by the mode. This view of the ques- tion seems to decide that the legislatures of the States ought not to have the uncontrolled right of regulating the times, places, and man- ner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the dis- cretionary power. Whether the electors should vote by ballot, or viva voce ; should assemble at this place or that place ; should be divided into districts, or all meet at one place ; should all vote for all the representatives, or all in a district vote for a member allotted to the dis- trict ; these and many other points would de- pend on the legislatures, and might materially affect the appointments. Whenever the legis- latures had a favorite measure to carry they would take care so to mould their regulations as to favor the candidates they wished to suc- ceed. ... It seemed as improper in principle, though it might be less inconvenient in prac- 132 EVOLUTION OF THE CONSTITUTION tice, to give the state legislatures this great authority over the election of the represent- atives of the people in the general legislature as it would be to give the latter a like power over the election of representatives in the state legislature." Mr. King supported Mr. Madison's views, calling attention again to the fact that they were not building this government on the basis of the state legislatures. He said : " If this power be not given to the national legislature, their right of judging of the returns of their members may be frustrated." To this Gou- verneur Morris added that " the States might make false returns, and then make no pro- visions for new elections." Mr. Sherman did not know that it might be best to retain the clause, though he had confidence in the state legislatures. The motion to strike out then failed, without a division, and it was not again contested. In this, as in many other cases, is observed the steady development of the fundamental idea of national independence of all state action. Mr. Madison, above all others, kept it con- stantly in view. The process was like the steady emergence from the world of chaos of a world of order ; of a central sun from a confused as- semblage of stars, on which it would shed light, but from which it could receive none. The new OTHER SteCIAL PROVISIONS 133 central State to be evolved must control the elements and operations necessary to its own existence and efficiency. COMPENSATION OF MEMBERS OF CONGRESS. The report of the Committee of Detail pro- vided for the payment of both representatives and senators by the States in which they were chosen. The original plan of Virginia simply proposed their payment by " liberal stipends," without designating the source of payment. On motion of Mr. Pierce, their wages were made payable out of the national treasury ; and on motion of Dr. Frankhn the word "liberal" was struck out. When the debate again occurred on the Virginia resolutions, Mr. Ellsworth moved their payment by the States respectively. He observed that, owing to different styles of liv- ing and the different scales of compensation in the various States, what would be deemed only reasonable compensation in one State would be very unpopular in another. Dr. Williamson concurred with him. Mr. Gorham was opposed to leaving the matter to the state legislatures, "who were always paring down salaries in such a manner as to keep out of office men most capable of executing the functions of them." He would not fix the grade of pay in the Constitution. 134 EVOLUTION OF THE CONSTITUTION " Let the national legislature provide for their own wages from time to time, as the state legis- latures do." He had not seen and did not apprehend an abuse of this power. Mr. Ran- dolph did not think it honorable in the Con- vention to sacrifice right to popular prejudice. Payment by the State would create a depend- ence which would vitiate the whole system. Mr. King was of the same opinion, as was also Mr. Wilson. But Mr. Sherman adhered to payment by the States. Mr. Hamilton stoutly opposed " making the national council dependent on the legislative rewards of the States. Those who pay are the masters of those who are paid." Payments by the States would be unequal, and there would be greater distance travelled by some than by others. Mr. Madison would not leave men coming " from beyond the mountains to the precarious and parsimonious support of their constituents." But he disliked to give the legis- lature the right to fix their own salaries, as being too much interested. On Mr. Ellsworth^s motion to strike out " national treasury," the vote stood ayes four, noes five, with New York and Georgia divided. The question was embarrassed by fears of in- serting a fixed sum in the Constitution, on the one hand, and so run the double risk of its inva- riability in the future, and of its being obnox- OTHER SPECIAL PROVISIONS 135 lous to the States ; and, on the other, of giving the members an authority to fix their own pay. The propositions which went to the Committee of Detail, therefore, were to pay representatives out of the public treasury, and that senators should be paid, without indicating by whom ; and the report of that committee was that both branches should be paid by the States from which they received their appointments. Upon recurring to the question on this report, Mr. Ellsworth frankly stated " that in reflecting on this subject he had been satisfied that too much dependence on the States would be pro- duced by this mode of payment," and he moved to strike it out, and to substitute the United States treasury. Mr. Butler thought that sen- ators would be so long out of their States that they would lose sight of their constituents, unless dependent on them for support. " On the other side," Mr. Gerry said, "the state legislatures may turn out the senators by re- ducing their salaries; such things have been practised." Mr. Sherman was not afraid that the legis- lature would make their own wages too high, but too low; so that men ever so fit could not serve unless they were at the same time rich. Mr. Carroll was surprised at the report in favor of such complete dependence of both Houses. " The States can now say. If you do not comply 136 EVOLUTION OF THE CONSTITUTION with our wishes we will starve you ; if you do we will reward you. The new government in this form was nothing more than a second edition of the Confederate Congress, in two volumes instead of one, and perhaps with very few amendments." Mr. Dickinson also desired Congress to be " independent of the prejudices, passions, and improper views of the state legislatures," but disliked leaving the pay to be regulated by Con- gress itself. There were also objections against taking a permanent standard as wheat, which had been suggested on a former occasion. He proposed a revision by legislative act every twelve years, " settling the quantum of their wages." Mr. Martin, always for reserved con- trol by the separate States, thought senators, as state representatives, ought to be paid by the States. Mr. Carroll, his colleague, denied that the senators were designed to be advo- cates of state interests; on the contrary, they were to represent and manage the affairs of the whole. The vote was then taken, and all the States ex- cept Massachusetts and South Carolina adopted the provision for paying the members of Con- gress out of the national treasury. An attempt to fix the sum per diem failed, and then the words " to be ascertained by law " were added without a division. OTHER SPECIAL PROVISIONS 137 THE RIGHT TO TAX EXPORTS was warmly advocated on the one side, and as warmly resisted on the other. It was claimed on the one hand that this power might be a useful aid in negotiating commercial treaties, and such a tax, if imposed on certain articles which must be used abroad, would be paid by foreigners ; that it might yet be necessary for revenue ; that it might be required to encourage the manufacture of raw materials at home ; and to prohibit it in all cases would be a dangerous denial of power to Congress in future contin- gencies. On the other hand, the " staple States " feared that its imposition on their leading arti- cles of export might be accomplished by the votes of Northern States, and that the former might thus be made to pay an undue share of the taxes. The general government might through it oppress particular States. Mr. Mad- ison especially insisted that it was a proper tax, that its use should not be allowed to the sepa- rate maritime States as a power to oppress their interior neighbors ; and that the national legis- lature was the proper depository of this power. He thought it would be wise to employ it espe- cially in taxing exports of articles like tobacco, which had no competition in foreign markets, — for in that case it would really be paid by foreigners. In the end, the fear of such use 138 EVOLUTION OF THE CONSTITUTION of the power as would prejudice the interests of particular States prevailed, and the power was prohibited alike to the States and to the United States. THE POWER TO REGULATE FOREIGN AND INTERSTATE COMMERCE. The powers to levy taxes, duties, imposts, and excises, and to regulate commerce, were conferred upon the national government with- out giving rise to any serious difficulty, be- cause the necessity of it was the strong motive to the new organization of government. The question of taxation first arose in con- nection with the ratio of representation ; and it was resolved by five votes against three, and one State divided, that until a census was taken, direct taxation should be imposed on the States according to representation in the first branch. When the Committee of Detail made their report on August 6th, the clauses giving Congress the power to tax, and to regu- late commerce, appear in the identical language in which they are now found in our Consti- tution, except that the clause " but all duties, imposts, and excises shall be uniform through- out the United States " was afterwards added. In the discussion on representation, Mr. King asked, " What is the precise meaning of direct taxation ? " No one replied to his inquiry. A OTHER SPECIAL PROVISIONS 139 proposition to obtain by requisition from each State its quota of direct taxes failed, eight States to one, and Virginia divided. In passing upon the words "duties" and " imposts," Mr. Martin asked what was meant by these words ? Mr. Wilson replied that " im- posts" was appropriated to commerce, while "duties" applied to a variety of objects, as stamp duties, etc. The only vote against the adoption of that taxing clause was Mr. Gerry's. On the question of laying embargoes, Mr. Madison moved to prohibit that power to the States. Mr. Sherman thought they might need to exercise it " to prevent suffering and injury to the poor;" and Mr. Mason thought the amendment dangerous. Gouverneur Morris considered the provision unnecessary, "the power of regulating trade between State and State already vested in the general legislature being sufficient." Mr. Madison then moved an absolute prohibition against the laying of du- ties by States on imports, in order to exclude the possibility of their getting the consent of Con- gress to an act which would tax the imports of their neighbors passing through their markets. Mr. Mason objected that "particular States might wish to encourage, by import duties, cer- tain manufactures for which they enjoyed nat- ural advantages, as Virginia the manufacture of hemp," etc. Mr. Madison replied that " the I40 EVOLUTION OF THE CONSTITUTION encouragement of manufactures in that mode requires duties not only on imports directly from foreign countries, but from other States of the Union, which would revive all the mis- chiefs experienced from the want of a general government over commerce." The power to regulate commerce was first given unanimously, and without any objection or query being raised upon its right or expedi- ency. But on the 29th of August, Mr. Charles Pinckney, with special reference to the report of a committee which recommended the rejection of the clause requiring a two-thirds majority to pass a navigation act, moved a proposition that " no act of the legislature for the purpose of regulating the commerce of the United States with foreign powers, or among the several States shall be passed without the assent of two thirds of the members of each House." He classified the States according to their conflicting inter- ests, to show the danger to these interests if a mere majority should be empowered to regulate commerce and navigation. The power was a pure concession, he said, on the part of the Southern States, which did not at present need the protection of the Northern States. Mr. Martin supported him. Charles Cotesworth Pinckney disagreed. Mr. Clymer said " the Northern and Middle States would be ruined if not enabled to defend themselves against for- OTHER SPECIAL PROVISIONS 141 eign regulations." Messrs. Sherman, Spaight, Gouverneur Morris, Rutledge, and others op- posed the demand for a two-thirds majority. It was rejected by seven States against Maryland, Virginia, North Carolina, and Georgia ; and the clause requiring two thirds to pass a naviga- tion act was struck out, leaving this on the same plane with other legislation. The debate recog- nized the importance of a commercial marine, as fostering seamen, and as auxiliary to the navy. Mr. Mason, as late as September 15, made an effort to require a two-thirds majority to pass a navigation act at any time before 1808, ap- parently associating it with the slave trade ; but only Maryland, Virginia, and Georgia supported the proposal. This power having ever since remained un- disputed, the real significance of the provision has been forgotten. The necessity of its exist- ence in a central authority, which should bind all the States, was then strongly appreciated and universally understood. As colonies, they had always assented to the imposition of duties by Great Britain on foreign goods imported among them so far as was needed to regulate their commercial intercourse with foreign coun- tries. Dr. Franklin, as colonial delegate in England, had expressly answered a parliamen- tary committee in 1766 that the colonies did not object to the British exercise over them of 142 EVOLUTION OF THE CONSTITUTION this power for the purpose of regulating com- merce, but denied it and all other taxation when imposed with the object of obtaining a revenue. His answer was, " I never heard any objection to the right of laying duties to regulate com- merce ; but a right to lay internal taxes was never thought to lie in Parliament." Lord Chat- ham, a few days afterwards, in a speech upon the right of taxing America, admitted " there IS a plain distinction between taxes levied for the purpose of raising a revenue and duties imposed for the regulation of trade." In 1778 the government introduced a bill in Parliament for the purpose of conciliating the colonies, then in open revolution, in the preamble of which they renounced all taxation of America, " except only such duties as may be expedient to impose for the regulation of commerce." The experience of mutual injustice among the colonies in their imposition of duties to raise a revenue, and to regulate their rival trade with foreign countries, had led to a widespread regret that there was no common authority to regu- late this commerce on terms of equality for all, as had before been done by act of Parliament. Each State was powerless to protect its own industries except by imposition of duties against importations from other States as well as directly from abroad. In August of the year prior to the meeting of this Convention a grand com- OTHER SPECIAL PROVISIONS 143 mittee of the Federal Congress had reported an article to be added to the Confederate sys- tem, which gave to the " United States in Con- gress assembled the sole and exclusive power of regulating the trade of the States, as well with foreign nations as with each other, and of laying such prohibitions and such imposts and duties upon imports and exports as may be necessary for the purpose ; " with a proviso, however, that the amounts so collected by the United States should be paid to the use of the State in which they should be payable ; and that citizens should not be required to pay more than foreign subjects. It thus appears that the statesmen of that period — and some of the members of that com- mittee were now members of this Convention — were thoroughly familiar with the system of regulating trade with foreign countries by the imposition of duties, and even went so far as to authorize " prohibitions " of such trade, or parts of it. In a debate in Convention (August 1 3) upon another subject, Mr. Madison said : "In many acts, particularly in the regulation of trade, the object would be twofold. The raising of revenue would be one of them. How could it be determined which was the primary or pre- dominant one, or whether it was necessary that revenue should be the sole object, to the ex- clusion even of other incidental effects ? When 144 EVOLUTION OF THE CONSTITUTION the contest was first opened with Great Brit- ain their power to regulate trade was admitted, their power to raise revenue rejected." Mr. Mason had expressed his fears of foreign influ- ence in our commercial regulations, that " the great houses of British merchants would in- sinuate the instruments of their views into our government." In the debate on the ratification of the na- tional Constitution in the Massachusetts Con- vention, Mr. Thomas Dawes urged its approval because of the power it gave to the national government over commerce and navigation. He said: " For want of general laws of prohibi- tion through the Union, our coasting trade, our whole commerce, is going to ruin." After reciting the free access to our ports of British bottoms, and their great earnings from Ameri- can freights, he added : " Our sister States are willing that these benefits should be secured to us by national laws, but we are slaves to Europe. We have no uniformity in duties, im- posts, excises, or prohibitions. Congress has no authority to withhold advantages from for- eigners in order to obtain reciprocal advantages from them. Our manufacturers have received no encouragement by national duties on for- eign manufacture, and they never can by any authority in the Confederation. . . . The citi- zens of the United States within the last three UNIVERSITY OTHER SPECIAL PROVISIONS 145 years have contracted debts with the subjects of Great Britain to the amount of near six mil- lions of dollars. If we wish to encourage our own manufactures, to preserve our own com- merce, to raise the value of our own lands, we must give Congress the power in question." In other States the object of this provision was equally well understood, as shown by the use made of it in the efforts to defeat the rati- fication of the Constitution in the States fur- nishing exports, but having no shipping and no manufactures. In the light of all these debates we see clearly what was meant by the power " to regu- late commerce with foreign nations and among the several States." In pursuance of this au- thority, after prescribing the oaths of office to be taken, the first act of Congress under this Constitution (chapter ii. Stats, at Large) im- poses duties on foreign imports for the " two- fold purpose " to which Mr. Madison alluded in the Convention, — "for the support of the government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures," as recited in its pre- amble. All the great commercial countries of Europe at that time exercised the same power, and for the same twofold purpose. Wars were undertaken to secure exclusive colonial mar- kets for their wares, and some of these govern- 146 EVOLUTION OF THE CONSTITUTION ments have continued that exclusive policy to this day. Without a like power this govern- ment would have been defenceless in negotia- tions of commercial treaties, and would have remained especially the commercial victim of that government from whose dominion it had just escaped. Mr. Madison introduced the bill for the ex- ercise of this power two days after the organi- zation of the First Congress (April, 1789, and before President Washington was inaugurated), proposing also a discriminating duty on ton- nage to protect American shipping. He said in debate that the " interests of States which were ripe for manufactures ought to have atten- tion, as the power of protecting and cherish- ing them has by the present Constitution been taken from the States, and its exercise thrown into other hands." BILLS OF CREDIT AND LEGAL TENDER. The Committee of Detail, under the author- ity giving to the new legislature all the powers of the Confederate Congress, reported the clause " to borrow money and emit bills on the credit of the United States." Gouverneur Morris, seconded by Mr. Butler, moved to strike out the authority "to emit tills " of credit, holding it unnecessary if the public credit was good, and useless if it was OTHER SPECIAL PROVISIONS 147 bad. Mr. Madison inquired if it would not suffice to prohibit their being made a tender. Promissory notes in that shape might in some emergencies be best. Mr. Morris answered that without the clause the promissory notes of a responsible minister would be good. If paper emissions were not prohibited, the money interest would oppose the plan of government. Mr. Mason had a mortal hatred against paper money, but he was unwilling to tie the hands of the government against all emergencies. Mr. Gorham thought the authority was implied in that of borrowing, so far as it was safe and necessary. Mr. Ellsworth thought it " a favorable mo- ment to shut and bar the door against paper money." The mischiefs of it were fresh in the public mind, and keenly felt. " The power may do harm, never good." Mr. Butler remarked that paper money was not anywhere in Europe a legal tender ; to which Mr. Mason replied, neither was the power denied in Europe. Mr. Read observed that the words, if not struck out, " would be as alarming as the mark of the beast in Revelation." Mr. Langdon would rather re- ject the whole plan than retain the obnoxious words. They were struck out by vote of all the States (9) except New Jersey and Maryland. Mr. Madison notes that he was satisfied the omis- 148 EVOLUTION OF THE CONSTITUTION sion of the clause would not prevent the issue of public notes so far as safe and proper ; and "would only cut off the pretext for 2. paper cur- rency, and particularly for making the bills a tender, either for public or private debts." (Mad- ison Papers, vol. iii, p. 1 346.) When the question of the powers to be de- nied to the States was presented, Mr. Wilson and Mr. Sherman moved to insert, after the prohibition of coining money, the words " nor emit bills of credit, nor make anything but gold and silver coin a tender in payment of debts." Mr. Gorham hesitated, fearing to arouse the opposition of the States, and willing that the power should remain among those which might be exercised by the States " with the assent of Congress." Mr. Sherman would crush paper money at once. On that part denying to the States the right to emit bills, all the States voted to prohibit it except Virginia, with Maryland divided. Upon the prohibition against making anything but coin a legal tender, the opinion was unanimous. Thus were the States forever prevented from again incurring for themselves the countless evils which they had already suffered from a forced paper currency. There is little doubt that the Convention also believed the Union to be saved from the same peril, when they struck out from the powers of the new national OTHER SPECIAL PROVISIONS 149 government that of emitting bills of credit. There is no trace in the recorded debates of the belief of a single member that under the power " to borrow money " the Congress could exercise the power of making their bills a legal tender for private debts. There is rather the contrary indication, that they considered this authority non-existent, unless it should be enu- merated among the express powers granted. The authority as assumed in later years appears to have been an unwarranted deduction from the general power to provide for carrying into effect other powers which were granted. The Convention, while prohibiting the power to the States, supposed it sufficient to simply with- hold the authority from the Congress of the United States. TREATIES AND THEIR FORCE. In distributing the powers to the various branches of the government, the Committee of Detail assigned to the Senate the power to make treaties, with the correlative power to appoint ambassadors. Mr. Hamilton's plan had proposed to invest this body with the power to declare war, while he associated it with the President in advising and consenting to treaties. But neither this nor any other plan, except that of Virginia, was made the basis of action, although traces of their provisions ISO EVOLUTION OF THE CONSTITUTION are seen in the motions made for amendment of the plan always under debate. It is doubt- less true that some of the propositions made by Mr. Charles Pinckney and Mr. Hamilton, as well as of those in the New Jersey and Con- necticut schemes, found adoption in the various amendments made to the original plan. But this provision, giving the Senate the sole power over treaties, appears to have been accepted in the first instance by common consent. On August 15, Mr. Mason, while op- posing another power of the Senate, observed they " could already sell the whole country by means of treaties." Mr. Mercer in reply said, " The Senate ought not to have the power of treaties. This power belonged to the executive .department;" and added that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority, as was the case in Great Britain. Mr. Mason rejoined, that he " did not say a treaty would repeal a law, but that the Senate might by means of treaties alien- ate territory, etc., without legislative sanction ; an example was found in the British cession of West India Islands by treaty alone. If Spain should take possession of Georgia, the Senate might by treaty dismember the Union." Upon the direct consideration of this article, Mr. Madison observed that, as the Senate repre- sented the States, and for other reasons as well, OTHER SPECIAL PROVISIONS 151 " it was proper that the President should be an agent in treaties." Gouverneur Morris doubted about referring to the Senate the making of treaties in any degree ; but for the present would only move as an amendment, "but no treaty shall be binding on the United States which is not ratified by law." Mr. Madison spoke of the inconvenience of requiring a legal ratification of treaties of alliance in case of war, and in many other cases. Mr. Gorham called atten- tion to " many other disadvantages if treaties of peace and all negotiations are to be previously ratified ; and if not previously, the ministers would be at a loss how to proceed. American ministers must go abroad not instructed by the same authority which is to ratify their proceed- ings." Mr. Morris answered that the result would be that foreign governments must send their ministers here (for an alliance), which he desired. Mr. Wilson was inclined for the amendment. Without it " the Senate could by treaty require all the rice of South Carolina to be sent to one particular port." Mr. Dickinson concurred. Dr. Johnson thought it a solecism " that the acts of a minister with plenipotentiary powers from one body should depend for ratification upon another body. The British king had full authority to make treaties and ratify them ; and if Parliament refused to provide for carrying 152 EVOLUTION OF THE CONSTITUTION them into effect it was a violation of the treaty." Mr. Randolph thought best to postpone its fur- ther consideration, in view of the objections to the clause ; but on this motion the vote was equally divided. The question was then put on the amendment requiring ratification of treaties by law; and only Pennsylvania voted for it, North Carolina being divided, and eight States voted against it. After adding "other public ministers" to ambassadors, the whole clause was postponed for further consideration and referred to the committee of five before appointed. Mr. Madi- son suggested a possible distinction in the mode of ratification between treaties eventual, or of alliance for limited terms, and other treaties ; the former to depend alone on the President and Senate. From another committee, charged with reso- lutions respecting the executive, on the 4th of September, came a report in which this pro- posal was made : " The President, by and with the advice and consent of the Senate, shall have power to make treaties ; " and in the same man- ner the appointment of ambassadors and other public ministers was transferred to him. But upon this power to make treaties was put the following limitation : " But no treaty shall be made without the consent of two thirds of the members present." OTHER SPECIAL PROVISIONS 153 Mr. Wilson, seconded by Mr. Fitzsimons, recalling the provision already adopted, that this Constitution, the laws under it, and treaties " shall be the supreme law of the land," moved to add to " the Senate " the words " and House of Representatives," so as to involve the whole law-making power as necessary to validate a treaty. " As treaties," he said, " are to have the operation of laws, they ought to have the sanc- tion of laws also." He thought this outweighed the reasonable objection that secrecy was neces- sary in the business of making treaties. Mr. Sherman averred " that the necessity of secrecy in the case of treaties forbade a refer- ence of them to the whole legislature. The only question was, whether the power could be safely trusted to the Senate, and he thought it could be." Then the vote was taken, and Pennsylvania alone supported Mr. Wilson. The other ten States voted for excluding the House of Repre- sentatives from participation in the making or ratification of treaties. The clause requiring two thirds of the Sen- ate for ratification was opposed by Mr. Wilson, as enabling a minority to overrule a majority. Mr. King concurred, because here was added the element of consent of the executive power as a security. Mr. Madison thought treaties of peace should be facilitated, and moved that 154 EVOLUTION OF THE CONSTITUTION only a majority be required for them ; and it was unanimously agreed to. He then went further, to guard against Presidential ambition and love of power in time of war, and proposed that two thirds of the Senate might make peace without his consent. Mr. Butler con- curred. Mr. Gorham thought this unnecessary, because the means for carrying on war were in legislative hands and might be refused. Gou- verneur Morris added that the President, as general guardian of the national interests, was entitled to concur in the making of peace. Mr. Gerry thought there was perhaps more need of caution in treaties of peace than in other treaties, as fisheries and boundaries, etc., would be at stake ; and so thought Dr. Wil- liamson. Mr. Madison*s motion was defeated by eight States against three. Afterwards, Messrs. Williamson and Spaight recurred to the subject of the amendment which allowed treaties of peace to be made with consent of a majority of senators, and moved to require two thirds in case territorial rights were affected. Mr. King would extend it, then, " to all present rights of the United States." The next day Mr. King moved to strike out the exception made of treaties of peace ; and Mr. Wilson did not desire two- thirds majority in any case. A reconsideration was agreed to. OTHER SPECIAL PROVISIONS 155 Gouverneur Morris recognized the fisheries and the Mississippi as " the two great objects of the Union ; " and the legislature would be unwilling to make war on that account, if a majority of the Senate could make peace. Mr. Wilson remarked that if two thirds was re- quired for peace, a minority might perpetuate war ; and the old grounds of debate were again traversed. The exception of treaties of peace was finally stricken out by a vote of all the other States against New Jersey, Delaware, and Maryland. Mr. Wilson and Mr. Dayton then moved to amend, so as to require only a majority of the Senate in all cases of treaties. This failed by nine States against Delaware, with Connecti- cut divided. Then Mr. Rutledge and Mr. Gerry moved, in the contrary direction, that for all treaties the consent of two thirds, not of a quorum, but of all the senators, should be required. This was defeated by eight votes to three. Mr. Sherman next moved for a majority of all the senators in such cases. This was defeated, six States against five. Mr. Madison then sought to require two thirds for a quorum. This was defeated by a vote of six to five. Messrs. Wil- liamson and Gerry then moved that no treaty should be concluded without previous notice to all the senators, and giving reasonable time 156 EVOLUTION OF THE CONSTITUTION for their attendance. Only Georgia, North Carolina, and South Carolina supported this. Then the vote jj^as finally taken on the treaty power as it now stands in the Constitu- tion, and it was accepted by all the States ex- cept Pennsylvania, New Jersey, and Georgia. It would appear from the course of the de- bate, and from the votes, that the mind of the Convention was never wholly clear respecting the case of conflict between legislative acts and treaties. They evidently regarded a treaty, ap- proved by two thirds of the Senate and the executive, as a supreme law, equal in force to any legislative act, and everywhere obligatory. It is probable that they considered a subse- quent act of Congress contravening its provi- sions, or refusing, or failing to provide means to execute it as a violation of it, to be adjusted as other violations of treaties must be adjusted. Doubtless they considered it unlikely that the executive and Senate who had made the treaty could consent to such a violative act ; but the other House might refuse legislation to exe- cute the treaty. Certainly they made no dis- tinction between treaties, whether of peace, of alliance, of commerce, or for any other object of international negotiation. Whatever the treaty, when duly ratified it became the law of the land. There always remained as a security for the treaty-making power the right to make OTHER SPECIAL PROVISIONS 157 the treaty conditional on the approval of the whole legislative authority. Otherwise, the treaty being unconditional, a failure to execute it involved its breach, and justified a demand by the other contracting nation for redress upon peril of war, or other retaliation. Washington, in refusing the call of the House of Representatives for the executive instructions touching the Jay Treaty, denied the right of the House of Representatives under the Constitution to participate in the making of treaties, in all cases without excep- tion. In his Message of March 30, 1796, he says : — " Having been a member of the General Convention and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this sub- ject; and from the first establishment of the government to this moment my conduct has exemplified that opinion — that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two thirds of the sen- ators present concur ; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty- making power has been understood by foreign nations, and in all the treaties made with them we have declared and they have believed that, 158 EVOLUTION OF THE CONSTITUTION when ratified by the President, with the advice and consent of the Senate, they became obliga- tory. In this construction of the Constitution every House of Representatives has heretofore acquiesced ; and until the present time not a doubt or suspicion has appeared, to my know- ledge, that this construction was not a true one. Nay, they have more than acquiesced ; for till now, without controverting the obliga- tion of such treaties, they have made all the requisite provisions for carrying them into effect. " There is also reason to believe that this construction agrees with the opinions enter- tained by the state conventions when they were deliberating on the Constitution, especially by those who objected to it because there was not required in commercial treaties the consent of two thirds of the whole number of the mem- bers of the Senate instead of two thirds of the senators present, and because in treaties re- specting territorial and certain other rights and claims the concurrence of three fourths of the whole number of the members of both Houses, respectively, was not made necessary." " If other proofs than these and the plain letter of the Constitution itself be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the OTHER SPECIAL PROVISIONS 159 office of the Department of State. In those journals it will appear that a proposition was made *that no treaty should be binding on the United States which was not ratified by a law/ and that the proposition was explicitly rejected." After more than one hundred years of ex- perience in the formation of treaties with all nations, and relative to all the subjects of in- ternational negotiation, the extent of the power granted continues in the field of congressional debate ; particularly in its relation to commer- cial treaties involving modifications of the tariff. The power to make treaties is given without any limitation, and covers every sub- ject of negotiation between nations. The power to regulate commerce and impose revenue duties was given to Congress in equally un- limited terms, except the condition that they should be uniform for all the States. We have seen that the attention of the Convention was repeatedly called to a possible conflict in the exercise of the powers. Still the Convention ad- hered to the duplicate provisions, apparently im- pressed by the necessity that Congress should have power over the general system, and that the treaty-making power should have the right to make exceptional provisions adapted to the ever varying conditions of intercourse with dif- ferent foreign nations. i6o EVOLUTION OF THE CONSTITUTION The only reasonable interpretation of the conflicting clauses of the Constitution has since been adopted by the Supreme Court of the United States, and should be regarded as now settled upon the highest authority. After several decisions which discussed different phases of the question, that eminent and final tribunal gave its decision upon the effect of both clauses in the following emphatic lan- guage : — " The effect of treaties and acts of Congress, when in conflict, is not settled by the Consti- tution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty." ' The method by which " the advice and con- sent of the Senate " has been invited, or given, has varied greatly during the lapse of the first century of the Constitution. In the early years when that body was small in numbers, Wash- ington, accompanied by the Cabinet member in charge of the subject, personally visited the Senate to consult them, but he soon found that method unsatisfactory, and even person- ally disagreeable, and abandoned it. He and following presidents substituted a written mes- ^ II Wall 621 ; Story's Commentaries on the Constitution, sec. 1 508. Seg also Cooky's Commentaries. OTHER SPECIAL PROVISIONS i6i sage of inquiry addressed to the Senate, and the response was by a resolution of that body in answer to his inquiry. This was sometimes done before the negotiation of the treaty ; and sometimes the nomination of a diplomatic min- ister was accompanied with a statement of the object of his appointment. During Madison's administration the President declined to re- ceive a Committee of the Senate in consulta- tion on the subject, declaring that a committee could with propriety only consult the depart- ment in charge. The Senate itself was consti- tutionally the only body for consultation by and advice to the President in making treaties. The later presidents at times consulted the Senate by a message of inquiry in advance of making the treaty. But gradually they adopted in the majority of cases the habit of completing the negotiation of a treaty in advance of its submission to the Senate, and presenting it as a completed document for their ratification or rejection. The Senate in its turn would ratify or reject the treaty, or consent to it with an amendment which they proposed, leaving to the President his constitutional discretion to ap- prove the amendment and continue the nego- tiations for its adoption, or to reject it, and allow the negotiations to fail. The final ratifi- cation is with the President, after the consent of the Senate has been obtained. i62 EVOLUTION OF THE CONSTITUTION THE LEGISLATIVE RIGHT TO ORIGINATE MONEY BILLS. In the scheme of government, as originally approved in the committee of the whole, equal power to originate legislation was given to the two Houses of Congress by unanimous con- sent. While the Virginia resolutions were under consideration on the last day in the committee of the whole, Mr. Gerry moved to insert, " except money bills, which shall origi- nate in the first branch of the national legisla- ture." Mr. Butler saw no reason for it : " We were always following the British constitution, when the reason of it did not apply. There was no analogy between the House of Lords and the body now proposed to be established." Mr. Madison said, " The Senate would be the representation of the people, as well as the first branch." Mr. Sherman observed, " We establish two branches in order to get more wisdom, which is particularly needed in the finance business. The Senate bear their share of the taxes, and are also the represent- atives of the people." General Pinckney said, " This distinction prevails in South Carolina, and has been a source of pernicious dis- putes between the two branches." The mo- tion was then defeated by all the States except New York, Delaware, and Virginia, OTHER SPECIAL PROVISIONS 163 and both Houses retained equal rights in all legislation. When the long and exasperating debate occurred upon equality of state representation in the two Houses, it was urged on the part of the great States that questions of revenue ought to be determined by a proportional representa- tion. Otherwise, a minority of population, repre- sented by a majority of States, might, contrary to all correct principles, impose burdens on the majority of both wealth and population. This palpable injustice led to an offer on the side of the small States that " all bills for rais- ing or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature, and shall not be altered or amended by the second branch ; and that no money shall be drawn from the public treasury but in pursuance of appropriations to be originated in the first branch." This offer was conditioned upon the acceptance of an equal vote in the Senate. A committee, of which Mr. Gerry was chairman, so reported the plan on July 5. Mr. Madison regarded this as no valuable concession to the great States. " Experience proved that it had no effect. If some States in the upper branch wished a bill to be origi- nated, they surely might find some member . i64 EVOLUTION OF THE CONSTITUTION from the same States in the lower branch who would originate it." As for amendments, they " could be handed privately by the Senate to members of the other House. Bills could be negatived, that they might be sent up in the desired shape." Gouverneur Morris and others warmly opposed tjie plan. Mr. Wilson shrewdly remarked, " If both branches were to say yes or no, it was of little consequence which should say yes or no first, which last." It would be better to reverse the order, for " it was a maxim that the least numerous body was the fittest for deliberation, — the most numerous for de- cision." The question was taken on this clause ; and for it voted Connecticut, New Jersey, Delaware, Maryland, and North Carolina (5). Against it were Pennsylvania, Virginia, South Carolina (3), with Massachusetts, New York, and Georgia divided. Although only five States out of eleven voted for it, under their rules it stood as affirmed. But it was well understood that it was still an open question. On the 1 6th of July, after references of the compromise to special committees and much debate, the question was taken on the com- promise as a whole, including the equal vote in the Senate, the proportional vote in the House, and the clause in question ; and it was carried by the same five States in the affirmative against the same three States and Georgia in OTHER SPECIAL PROVISIONS 165 the negative, with Massachusetts divided and New York absent. In this form it went to the Committee of Detail, but still unsupported by a majority of the States. Again, upon the report of this committee, it came into debate, and Mr. Pinckney moved to strike out the clause, and was supported by Gouverneur Morris, Mr. Wilson, and Mr. Madi- son. Mr. Mason, Mr. Butler, and Mr. Ellsworth thought it had better stand as a compromise. Mr. Gorham was in favor of originating the bills in the House, but giving power to the Senate to amend. The clause was struck out by the votes of New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia (7), against New Hampshire, Massachusetts, Connecticut, and North Caro- lina (4), without disturbing the equality of States in the Senate. But Mr. Randolph gave notice of a motion to reconsider, and Mr. Mason, with some others, still regarded it as necessary to adhere to the compromise, although the large States had disclaimed its supposed value and the small States were willing to adhere if the large States desired it. Upon the reconsideration, Mr. Randolph proposed to limit the exclusive power to " bills for the purpose of revenue," to obviate objection to the words " raising money," which might happen incidentally, not allowing the i66 EVOLUTION OF THE CONSTITUTION Senate by amendment to either increase or diminish the same. His motion was in the fol- lowing words : " Bills for raising money for the purpose of revenue, or for appropriating the same, shall originate in the House of Repre- sentatives; and shall not be so amended or altered by the Senate as to increase or dimin- ish the sum to be raised, or change the mode of levying it, or the object of its appropriation." Mr. Mason renewed his arguments in its favor. Mr. Wilson again opposed it with warmth. He said "it would be a source of perpetual contentions when there was no medi- ator to decide them. The President here could not, like the executive in England, interpose by a prorogation or dissolution. This restric- tion had been found pregnant with altercation in the eight States where the constitutions had established it. The House of Representatives will insert other things in money bills, and, by making them conditions of each other, destroy the deliberate liberty of the Senate." And he recited a remarkable case of this misuse of power by the House of Commons. Gouver- neur Morris thought its proposed advantages illusory, because the "Senate could tire out the other House and extort their concurrence in favorite measures as well by their negative or withholding their assent as by adhering to a bill introduced by themselves. In respect to OTHER SPECIAL PROVISIONS 167 the representatives ' holding the purse-strings,' both Houses must concur in the untying; and of what importance could it be which untied first, which last ? " Mr. Madison made a full argument on the same side. Mr. Read would follow the example of many of the States, retaining the exclusive authority in the first House, but giving the Senate liberty to amend. Mr. Carroll said the clause in the Maryland constitution was " a source of continual diffi- culty and squabble between the two Houses." At the end of this searching debate (Au- gust 1 3) three votes were taken. First, on the exclusive right in the first House to originate money bills : the ayes were New Hampshire, Massachusetts, Virginia, North Carolina (4) ; the noes were Connecticut, New Jersey, Penn- sylvania, Delaware, Maryland, South Carolina, Georgia (7). Second, on originating by the first House and amending by the Senate : the vote was the same, — noes seven, ayes four. Third, on the question of no appropriations of money except those originating in the first House : Massachusetts alone voted aye (i), the other ten States voting no. Here, for the first time, appears a very strong conviction of the Convention that a distinction should be made between bills for raising reve- nue and bills for appropriating money. Two days later Mr. Strong, of Massachu- i68 EVOLUTION OF THE CONSTITUTION setts, moved to insert in another place the same clause of Mr. Randolph which had been voted down on the 13th. It was thought best to postpone the question for the time and consider other matters, which was done. Sub- sequently a committee of eleven was appointed to consider various old and new questions of detail in the Constitution as reported, and on the 5th of September Mr. Brearley reported from this committee, among other clauses, the following : " All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate ; no money shall be drawn from the treasury but in consequence of appropria- tions made by law." Again it was postponed on motion of Gou- verneur Morris, who said it had been '* agreed in the committee on the ground of compro- mise," and he wished to await the disposition of other clauses. Though opposed, this motion was carried by nine States against two. On the 8th of September the long dispute was ended. After a verbal amendment, which was made unanimously, the clause was adopted as it now appears in the Constitution, except that the Committee on Style, in their revision, transposed the last clause to another place. The final vote shows its acceptance by all the States except Delaware and Maryland. OTHER SPECIAL PROVISIONS 169 Among the published objections of George Mason, on account of which he refused to sign the Constitution, was this, that "the Senate have the power of altering all money bills and of originating appropriations of money." It thus appears that by express votes the Con- vention refused to extend the exclusive power of the House beyond bills for raising revenue, and by express vote decided to leave in the Senate an equal power to originate bills mak- ing appropriations of public money, and that only a minority of the Convention attached con- stitutional importance to the former provision. ADMISSION OF NEW STATES. It was among the clauses of the Virginia plan that provision should be made for the ad- mission of new States into the Union, whether with a voluntary junction of government and territory, or otherwise, and without requiring the consent of all the States. This was agreed to in the committee of the whole. It was re- membered that there had been discussion of new States to be formed in the west of. North Carolina, west of Pennsylvania, in Maine, in Vermont, and in the Western region. In the Convention itself there had been talk (June 18) of a readjustment of territory among the States with a view to equalize them. When the Committee of Detail made their 170 EVOLUTION OF THE CONSTITUTION report, this clause, modified in form, provided for the admission of " new States lawfully con- stituted or established within the limits of the United States ; " but requiring the consent of two thirds of each House of Congress. If formed within the limits of an existing State, the consent of its legislature was required. They were to come in on equal terms with old States, but might be subjected to conditions concerning the public debt then existing. Gouverneur Morris objected to this equal- ity, with only the condition respecting the public debt. He did not wish to bind the legis- lature to admit Western States on such terms. Mr. Madison, Mr. Mason, and Mr. Sherman thought it wise to make them equals and not degrade them. The best policy was to treat them as friends, not enemies. Mr. Morris ad- mitted it was impossible to discourage the growth of the West ; but he did not wish to throw the power into their hands. Mr. Lang- don and Dr. Williamson would have the legis- lature free to act according to circumstances. Mr. Morris's motion prevailed, and that part of the clause was struck out. Mr. Morris then moved to make the article read, " New States may be admitted by the legislature into the Union ; but no new States shall be erected within the limits of any of the present States, without the consent of the OTHER SPECIAL PROVISIONS 171 legislature of such State, as well as of the general legislature." The first clause was ac- cepted unanimously ; the latter clause by a vote of six States to five. There arose a debate upon the point of requiring the assent of the old States before a new State, formed out of their distant lands, and with separate inter- ests, could be admitted ; and on the question of admitting Vermont, which had received pledges, independent of the consent of New York. Mr. Dickinson held it improper to re- quire the small States to secure the large ones in their extensive claims of territory. Mr. Carroll wanted to maintain the claim of the United States to the " back-lands." " Were the States to be cut up without their consent } " suggested Mr. Rutledge. Various amendments and provisos were offered to meet objections, and voted on, and the subject was clouded by serious differences of opinion. Mr. Morris pro- posed a substitute which passed, eight States to three, which met the case of Vermont and other possible cases, by employing the word jurisdiction, instead of territory; and there was added, also on his motion, a clause giv- ing Congress power to dispose of and make all needful rules and regulations respecting its territory and property, substantially as now found in Article IV, Section 3, of the Con- stitution. 172 EVOLUTION OF THE CONSTITUTION Mr. Morris had indulged prejudices and fears respecting " that range of new States which would soon be formed in the West," and wanted " a rule of representation so fixed as to secure to the Atlantic States a prevalence in the national councils." Their interests would be different ; they would know less of the public interest ; and, " in particular, will be little scrupulous of involving the community in wars, the burdens and operations of which would fall chiefly on the maritime States." There ought, therefore, to be provisions "to prevent the maritime States from being here- after outvoted by them." Mr. Gorham had ex- pressed similar opinions in favor of " dealing out the right of representation in safe propor- tions to the Western States." Mr. Gerry also would turn attention " to the dangers apprehended from the Western States." He would admit them on liberal terms, but not put himself in their hands. They would oppress commerce and drain wealth into the Western country. He would limit the num- ber to be admitted, so that they could never outnumber the Atlantic States. He proposed to limit the number of representatives in the first branch from the new States, so that they should never exceed the number from the old States which should accept the Constitution, and Mr. King seconded him. Mr. Sherman thought OTHER SPECIAL PROVISIONS 173 " there was no probability that the number of new States would ever exceed that- of the exist- ing States. Besides, we are providing for our children and our grandchildren, who would be as likely to be citizens of new Western States as of the old States. On this consideration alone we ought to make no such discrimina- tion as that proposed." Mr. Gerry admitted there was "a rage for emigration from the Eastern States to the Western country, but he did not wish those remaining behind to be at the mercy of the emigrants." His motion was wisely defeated by five votes against four, with Pennsylvania divided. The power was impliedly left in Congress to impose conditions on the admission of new States not involving their equal representation ; but it has never been harshly used, and only applied to the public lands and Union property, for which they, in turn, have been well com- pensated out of the public land. The injustice now is more often seen in refusal of admission when solicited and merited. They have nulli- fied all the original fears entertained by the Atlantic States and have vastly strengthened the Union. NATIONAL CONTROL OVER STATES. In the Virginia plan, as submitted by Gov- ernor Randolph, appeared the following pro- 174 EVOLUTION OF THE CONSTITUTION vision : that the national legislature ought to be empowered " to negative all laws passed by the several States contravening, in the opin- ion of the national legislature, the Articles of Union, or any treaty subsisting under the au- thority of the Union ; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the Articles thereof." This proposition seemed to be the corollary of the other which immediately preceded it : " that the national legislature ought to be em- powered ... to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." Neither Mr. Pinckney nor Mr. Rutledge, nor Mr. Randolph himself nor Mr. Madison, liked the vagueness of the term " in- competent." They all wished it might be pos- sible to enumerate the powers. Nevertheless, the phrase was adopted by a vote of all the States except Connecticut, which was divided. On the right to negative state laws, it passed without even a dissent, upon its first consider- ation. Upon the right to use the force of the Union against delinquent States, Mr. Madison doubted its practicability and justice " when ap- plied to people collectively and not individu- OTHER SPECIAL PROVISIONS 175 ally." He hoped to find a system which would render this resource unnecessary ; and moved a postponement, which was agreed to. The right to negative state laws came up again a few days later, when Mr. Pinckney moved to make the clause read, " That the na- tional legislature shall have authority to nega- tive all laws which they should judge to be im- proper." He said that " the States must be kept in due subordination to the nation ; that this universal negative was in fact the corner-stone of an efficient national government." Mr. Mad- ison agreed with him. Mr. Gerry had " no ob- jection to authorize a negative of paper money and similar measures," but did not want the power to go too far. Mr. Sherman wanted the negative to be defined. Mr. Wilson made a cogent argument for the clause, reminding the Convention of the brotherly self-abnegation of States in the beginning of the Revolution, when they would say, " We are now one nation of brethren, — we must bury all local interests and distinctions. The tables at length began to turn, jealousy and ambition to display them- selves. Each endeavored to cut a slice from the common loaf, till at length the Confedera- tion became frittered down to the impotent condition in which it now stands. It is the business of this Convention to correct its vices, especially the want of an effectual control in 176 EVOLUTION OF THE CONSTITUTION the whole over its parts." Mr. Bedford, Mr. Butler, and Dr. Williamson opposed the mo- tion. It was defeated, seven States to three, and Delaware divided. It was discussed in Convention July 17, when Gouverneur Morris thought the power would be terrible to the States, and that it would be unnecessary if sufficient powers were conferred on the general government. Mr. Sherman also believed it unnecessary, as the courts in the States would hold invalid any law contravening the authority of the Union. Mr. Martin also opposed it, but Mr. Madison still maintained its necessity for the preservation of harmony in the Union, and was supported by Mr. Pinckney. The clause was then de- feated by all the States against only Massa- chusetts, Virginia, and North Carolina; and a substitute was unanimously adopted, declaring the laws of the Union made in pursuance of its articles, and the treaties, " to be the supreme law of the respective States," and binding upon their judiciary. On the 23d of August Mr. Pinckney re- newed the effort to establish a negative on state laws, and was supported by Mr. Broom, of Delaware, Mr. Madison, Mr. Wilson, and Mr. Langdon. It was opposed by Messrs. Sherman, Ellsworth, Mason, Gouverneur Mor- ris, and Rutledge. The latter said, " Will any OTHER SPECIAL PROVISIONS 177 State ever agree to be bound hand and foot in this manner ? If nothing else, this alone would damn, and ought to damn, the Constitution." After an adverse vote, six States against five, Mr. Pinckney withdrew the proposition, and the effort to establish this right in Congress was abandoned. The controlling reasons for this change of opinion appear to have been, first, its offensiveness to the States ; second, the difficulty in execution, whether all laws must be sent up for approval or suspended awaiting Federal decision, or other manner of its exercise ; third, and chiefly, that it was un- necessary, as the courts were bound to obey the declared and admitted supremacy of na- tional Constitution, laws, and treaties. The other clause, authorizing force against delinquent States, disappeared under the strong objections to it as practically suggesting inter- necine war. Having adopted the plan of a government acting directly on the people and ignoring in national affairs the separate state jurisdictions, except as geographical divisions, force was only needed for individuals, and would be thus applied to all the components of a State, whose corporate action could give no rights or justification of wrongs against the supreme authority of the Union. The whole system of quotas and requisitions upon States being abandoned, the necessity to punish state delin- 178 EVOLUTION OF THE CONSTITUTION quency no longer existed. For the United States, become independent of and supreme over state action for Federal purposes, there remained for punishment only the individuals offending. To this end the foregoing provision was moderated into one giving Congress au- thority " to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Thus was carried out the original and grad- ually developed scheme of a supreme govern- ment which went, both for its authority and for its effects, behind state constitutions and laws, and in its operations recognized only one people in the whole land subject to its juris- diction. If a corporate State even organized an insurrection against the United States, the force of the Union was to be applied to all the individuals entering into it, whether state offi- cers and holding state commissions or simple volunteers. All would be equally liable to punishment as offending citizens of the United States violating their supreme allegiance. THE GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT TO THE STATES, AND THEIR PROTECTION. The eleventh resolution of the Virginia scheme contained the proposition that the na- tional government should guarantee to each OTHER SPECIAL PROVISIONS 179 State its territory and a republican form of government. The guarantee of territory, as already recited, was rejected on account of the uncertainty of its extent and the conflicting claims of States and of the United States. In the discussion upon it, Mr. Read added the reason that the proposal " abetted the idea of distinct States, which would be a perpetual source of discord. The only cure for this evil was in doing away States altogether, and unit- ing them all in oi;ie great society." The clause was first passed in committee with an amendment so as to guarantee " a republican constitution and its existing laws " to each State. When it came up for discussion Gouverneur Morris assailed the guarantee of laws. He would not have " such laws as exist in Rhode Island guaranteed." It was explained that the object was " merely to secure the States against dangerous commotions, insurrections, and rebellions." Mr. Mason thought that with- out this right " the general government must remain a passive spectator of its own subver- sion," as rebellions against the United States would originate in the individual States. Mr. Houstoun did not want existing state consti- tutions guaranteed ; some of them, like that of Georgia, were bad. Mr. Gorham " thought it strange that a re- bellion should be known to exist in the empire, i8o EVOLUTION OF THE CONSTITUTION and the general government have no power to subdue it. An enterprising citizen might erect the standard of monarchy in a State, gather partisans from all quarters, extend his views from State to State, and threaten to establish a tyranny over the whole, and the general gov- ernment remain an inactive witness of its own destruction." A war of words might be allowed to go on, but upon appeal to the sword the general government must interpose, however difficult it may be. Mr. Carroll thought such an authority ought to be desired by every State. It was doubtful if the existing Con- federacy had such a power. After some fur- ther debate, Mr. Wilson moved as a substitute that " a republican form of government shall be guaranteed to each State, and that each State shall be protected against foreign and domestic violence." This was accepted on all sides and adopted unanimously, and in that form it went to the Committee of Detail. It was reported by them with the last clause amended, so as to confine the absolute guar- antee to cases of " foreign invasion," and re- quiring the application of the state legislature before intervening " against domestic violence." When this report was taken up the word " foreign " was struck out as superfluous, " in- vasion " implying it. Mr. Dickinson moved to strike out " on application of its legislature." OTHER SPECIAL PROVISIONS i8i He thought it essential to the general tran- quillity that the United States should in all cases suppress domestic violence ; for it might proceed even from the legislature itself, or from disputes between the two branches. Mr. Dayton cited the case of Rhode Island as showing the necessity for giving ample power to the United States. But on vote this prior application was retained, eight States to three. It was moved to substitute " insurrections " for " domestic violence," but that failed, six votes to five. On motion of Mr. Dickinson, the words " or executive " were inserted after "legislature," so that action might be taken on his application, without waiting for the legislature. This was carried, eight States to two, with Maryland divided. Mr. Martin would confine the application of the executive to the recess of the legislature. But only his own State supported him. As thus amended the guarantee clause was passed by nine States against two. It was afterwards modified by inserting after the word " executive " the paren- thetical clause, " when the legislature cannot be convened." But, in order to understand the purposes of the Convention in thus limiting the guarantee against domestic violence to cases of a demand for protection made by either the legislature or the governor of a State, attention must be i82 EVOLUTION OF THE CONSTITUTION given to the two other powers vested in Con- gress by the Committee of Detail in the same report: "to subdue a rebellion in any State, on the application of its legislature ; " and " to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions." Of these two provisions the latter subse- quently assumed the form in which the power was given to Congress: "to provide for call- ing forth the militia to execute the laws of the Union, suppress insurrections, and repel inva- sions," and was thus unanimously adopted. When the other power, "to subdue rebel- lion," was under discussion, Mr. Pinckney and Mr. Morris moved to strike out " on the appli- cation of its legislature." Mr. Martin opposed it, saying, "The consent of the State ought to precede the introduction of any extraneous force whatever." It was proposed to extend the application to the governor. Gouverneur Morris said, " The executive may possibly be at the head of the rebellion. The general government should enforce obedience in all cases where it may be necessary." Mr. Gerry was against " letting loose the myrmidons of the United States on a State, without its own consent." Mr. Langdon believed that the ap- prehension of the United States force would have a useful effect in preventing insurrec- OTHER SPECIAL PROVISIONS 183 tions. Gouverneur Morris remarked, " We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The gen- eral legislature may surely be trusted with such a power to preserve the public tranquillity." It was then agreed that the United States might act without the state legislature when it could not meet, by five States to three, with two divided. On motion it was further amended by defining the "rebellion" to be a rebellion against the State. " There might be a rebel- lion against the United States," said Mr. Dickinson and Mr. Madison. This provision had no relation to such a case. The whole clause as amended was then rejected, being sustained by four votes against four, and two absent. Upon recurrence to the question, presented in connection with the clause guaranteeing a republican form of government to each State, the unconditional protection of the United States was guaranteed only against invasion ; and conditional protection against " domestic violence," if required by the legislature, or by the governor when the legislature cannot be convened. It is evident that this last protection was intended exclusively for the cases where the violence was directed against the state action l84 EVOLUTION OF THE CONSTITUTION or authority, and by its own citizens; and therefore the necessity for national interven- tion was to be determined by that state authority which was offended and assailed. If the violence was offered by another State, or a foreign country, it became "invasion," and not " domestic violence ; " and then the guar- antee of the protection of the United States became as absolute as was the guarantee of a republican form of government. For the rest, for the case of illegal or violent offences, insurrections, and invasions, directed against the Union, the United States was its own absolute judge as to the action required, and was empowered to call to its aid the militia of all the States. Power to this end was. in- herent, also, under the general powers to pro- vide for the common defence, and to pass all necessary laws to give effect to the Constitution, which with its laws covered all the territory of the Union. The national life and authority given by the Constitution could be defended by all the three departments which it estab- lished for that express purpose, — the legis- lative, the executive, and the judicial; and the means were left to its own discretion. The fourth section of Article IV was designed to enforce and regulate its duty towards a State of the Union only, and for the benefit of the State exclusively. OTHER SPECIAL PROVISIONS 185 MODE OF RATIFICATION OF THE CONSTITUTION. When the subject of providing state con- ventions for the ratification of the new Con- stitution was before the Convention, as found in the -Virginia plan, Mr. Sherman thought popular ratification unnecessary, and that rati- fication by Congress and the state legislatures would be sufficient. Mr. Madison, on the contrary, held it essen- tial. He added, with singular foresight, " As far as the Articles of Union were to be con- sidered as a treaty only of a particular sort among the governments of independent States, the doctrine might be set up that a breach of any. one article by any of the parties absolved the other parties from the whole obligation." He therefore wanted the ratification " by the supreme authority of the people themselves." Mr. Gerry seemed afraid of this mode for the Eastern States, as the people in that quar- ter had " the wildest ideas of government in the world. They were for abolishing the Senate in Massachusetts and giving all the other powers of government to the other branch of the legis- lature." Mr. King thought the legislatures likely to be hostile to the new system, as they would lose power by its adoption. Mr. Wilson, with characteristic clearness of perception, desired that provision should be made for l86 EVOLUTION OF THE CONSTITUTION giving effect ta the ratification of less than the whole number of States, so that the govern- ment could be established by the States de- siring it, leaving the door open to the others to enter. This was remembered in the end, though received in silence at the time, except that Mr. Pinckney hoped that, if not unanimous, nine States might undertake the new system. Upon taking the vote in committee on this question, ratification by the people was sus- tained by the votes of Massachusetts, Penn- sylvania, Virginia, North Carolina, South Car- olina, and Georgia (6), against New York, Connecticut, New Jersey (3), with Maryland and Delaware divided. In the great debate which followed the in- troduction of the New Jersey plan, Mr. Madi- son's prime objection to it was that " its ratifi- cation was not to be by the people at large. It could not, therefore, render the acts of Con- gress, in pursuance of their powers, paramount to the acts of the States." It is worthy of note that the tenacity of the adherence of the fram- ers of the Constitution to this point of ratifica- tion by the people arose from their determina- tion to take from the corporate States all power, or pretence of power, to nullify or control na- tional legislation by any act of their own legis- latures. They had witnessed this nullification in the ruin of the Confederacy. Constitutional OTHER SPECIAL PROVISIONS 187 history can be correctly read only in the light of this fixed resolution of the majority of the Convention. Rufus King, in a critical debate upon the last hope of compromise, said he " considered the proposed government as sub- stantially and formally a general and national government over the people of America. There will never be a case in which it will act as a federal government, — on the States, and not on the individual citizens." When the provision came up in Conven- tion on the report of the committee of the whole, Mr. Ellsworth, seconded by Mr. Pater- son, moved its ratification by the state legisla- tures. Mr. Mason opposed them, asserting that legislatures were not sovereign, they were crea- tures of the constitution of the State ; and no such power, in some States certainly, was con- ferred by their constitutions. " Whither, then, must we resort ? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished, as the basis of free government." If referred to the legislatures, " succeeding legis- latures, having equal authority, could undo the acts of their predecessors." Mr. Randolph, Mr. Gorham, Dr. Williamson, Mr. King, Mr. Madi- son, and Gouverneur Morris opposed the mo- tion of Mr. Ellsworth. Mr. Madison especially I88 EVOLUTION OF THE CONSTITUTION made the point that the difference " between a system founded on the legislatures only and one founded on the people was the true differ- ence between a league or treaty and a constitu- tion." He added that judges might decide for the validity of a law, though unwise and per- fidious, which violated a treaty ; but a law vio- lating a constitution established by the people themselves would be considered by the judges as null and void. By the law of nations a breach of one article of a treaty releases the other party from all his engagements. Under a constitution, " the nature of the pact has al- ways been understood to exclude such an in- terpretation." The vote was then taken, and the proposed ratification by the legislatures was rejected by New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia (7), against Connecticut, Delaware, and Maryland (3). Gouverneur Morris then moved there should be one general convention for its considera- tion, amendment, and establishment; but he found no support in this. And on the question of agreeing to the clause as found in the text, it was carried by all the States against Dela- ware only. This debate and decision occurred on the 23d of July. On the 31st of August, Gouverneur Morris was induced to move that the choice of mode OTHER SPECIAL PROVISIONS 189 of ratification be left to the States. After a debate, in which his opponents insisted upon this resort to the people, " to first principles," as getting over all difficulties, the motion was defeated by six States against Connecticut, Pennsylvania, Maryland, and Delaware. The number of States required to ratify it in order to give it force and effect between them was then considered, and it was resolved to take the same number nine, to which they were already accustomed under the Confed- eracy, as giving final validity to their acts. Maryland alone supported the motion to make the number thirteen ; Messrs. Madison, Wil- son, and Clymer desired valid ratification by any seven or more States, which should em- brace a majority of the people, and of repre- sentatives in the first branch of Congress. Mr. Sherman proposed ten States, but this was supported only by four votes. The num- ber nine was accepted by eight votes to three ; and the article was then agreed to by all the States except Maryland, whose delegates were embarrassed by a clause in their state consti- tution. After long, fundamental, and exhaustive de- bates, it had been repeatedly decided that this should not be a treaty, a league, or a confed- eracy between States; and as often decided that it should be a constitution of the people, 190 EVOLUTION OF THE CONSTITUTION organizing them into one common and gen- eral government for general affairs, wholly in- dependent of and superior to state govern- ments. Mr. Wilson as early as June 20 had declared his opinion that, "in spite of every precaution, the general government would be in perpetual danger of encroachments from the state governments." Mr. Madison had followed him with the double statement that " there was less danger of encroachment from the general government than from the state governments; and, further, that the mischief from encroachments would be less fatal if made by the former than if made by the lat- ter. All the examples of other confederacies prove the greater tendencies in such systems to anarchy than to tyranny ; to disobedience of the members than usurpations of the federal head. Our own experience had fully illustrated this tendency." " The people would not be less free as members of one great republic than as members of thirteen small ones. A citizen of Delaware was not more free than a citizen of Virginia ; nor would either be more free than a citizen of America. Supposing, therefore, a tendency in the general govern- ment to absorb the state governments, no fatal consequence could result." With great difficulty the members of the Convention emerged from their narrower OTHER SPECIAL PROVISIONS 191 Views, as citizens of a colonial circumscription, into the greater light and liberty of citizens of a great republic, destined to such historic grandeur that none in presence of it should longer boast of his local attachments, but should rather announce, with Roman pride, that he was an American citizen. OATHS BY STATE OFFICERS TO SUPPORT THE CONSTITUTION. One important provision of the plan intro- duced by Mr. Randolph was that which " Re- solved, that the legislative, executive, and ju- diciary powers within the several States ought to be bound by oath to support the Articles of Union." It provoked objections upon its first consideration, and was postponed. Upon its recurrence, Mr. Sherman declared against it, as " an intrusion into the state jurisdiction." Mr. Gerry suggested there was as much rea- son for requiring an oath of fidelity to the States from national officers as vice versa. Luther Martin moved to strike it out. Evi- dently there still lingered the idea that they were only creating a subordinate — at most another equal — State, and not a superior. Mr. Randolph sustained it, as necessary to prevent competition between the national and state constitutions and laws. " The national authority needs every support we can give it. 192 EVOLUTION OF THE CONSTITUTION Unless the state executive and judiciary be brought under some tie to the national system, they will always lean too much to the state systems whenever a contest arises between the two." Connecticut, New Jersey, Delaware, and Maryland (4) voted to strike it out; all the other States (7) sustained the provision. Upon the question of adopting the resolution itself, New York joined the four States in the minor- ity, the vote in its favor standing six to five ; and it was favorably reported to the Conven- tion. When it was again reached, Mr. Gerry's opinion was changed. He thought at least " one good effect would be produced by it. Hitherto, the officers of the two governments had considered them as distinct from, and not as parts of, the general system ; and had, in all cases of interference, given a preference to the state governments. The proposed oath will cure that error." Progress had been made in the conception of a national government. The resolution was adopted without further dis- sent. When the clause was reported from the Committee of Detail, on Mr. Charles Cotes- worth Pinckney's motion this addition was made : " but no religious test shall ever be re- quired as a qualification to any office or public trust under the authority of the United States; " OTHER SPECIAL PROVISIONS 193 and " afSrmation " was permitted, as an alter- native for the oath. After the report by the Committee of Revi- sion, the clause was adopted in the following form : " The senators and representatives be- fore mentioned, and the members of the sev- eral 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." As if to add to its significance and force, it immediately follows the clause declaring the United States Consti- tution, laws, and treaties " the supreme law of the land." By this association of all state and national officers in one universal obligation, the entire political organism of every State was brought into submission to the national Con- stitution and government. It was the sanction of an indissoluble allegiance of the States to the nation, throughout the whole extent of legitimate national jurisdiction. THE SIGNATURE AND PUBLICATION OF THE CONSTITUTION. On Saturday, September 15, several last attempts were made to amend the final draft, as reported by the Committee of Revision, in 194 EVOLUTION OF THE CONSTITUTION respect to several points which had been before seriously debated. It was especially desired to amend the fifth article, relating to future amendments of the Constitution. Among oth- ers, it was proposed to add a proviso, " that no State shall, without its consent, be affected in its internal police, or deprived of its equal suf- frage in the Senate." This was rejected by all the States except Connecticut, New Jersey, and Delaware. Then the amendment was offered omitting the " internal police " clause, which confined it to the preservation of equal suffrage in the Senate ; and this proviso was adopted. The majority of the delegates of New York had seceded from the Convention in July, Hamilton alone remaining; and he could not alone commit that State by his signature. Washington had fallen into deep despondency over the secession of that leading State, and had written to Hamilton : " I almost despair of seeing a favorable issue to the proceedings of the Convention, and do therefore repent having any agency in the business." But he urged Hamilton to remain in the Convention and to continue his efforts ; nor did he himself quite despair. Happily, most of the remaining members of the opposition, although reluc- tantly, surrendered to the desire for formal unanimity. OTHER SPECIAL PROVISIONS 19S After the adoption of the fifth article, the question was put by the president, Shall the Constitution as amended be adopted ? It was a solemn moment ; and there were not a few hesitating minds. All the States present, eleven in number, answered in the affirmative. It was then ordered that the Constitution should be engrossed, and the Convention adjourned until Monday. The intervening Sunday was a day of anx- ious thought and consultation. It was deemed of great importance that all the delegates pre- sent should sign the great act, that it might go to the country with the aspect of unanimity. It was thought best that Dr. Franklin, the ven- erable and wise moderator of opinions, should make this conciliatory effort. On the morning of Monday, the 1 7th of Sep- tember, he rose, and, because of his infirmity, asked Mr. Wilson to read the observations he wished to offer. After a temperate and patri- otic appeal for unanimity, he proposed a form which simply certified to the fact of record, that it was " done in Convention by the unani- mous consent of the States present." As a further proffer of conciliation, and to remove one objection entertained by several delegates, Mr. Gorham moved to increase the possible number of representatives in the first branch of Congress to one for thirty thousand, 196 EVOLUTION OF THE CONSTITUTION instead of the ratio of forty thousand inhab- itants, and was supported by Mr. King and Mr. Carroll. But, most powerful influence of all, General Washington, before putting the question, and with a modest apology for offer- ing any remarks, expressed the satisfaction he would experience if it should be adopted. His voice had often been heard in private conver- sation with members upon the great topics dis- cussed, but never before from the tribune, and now its potency was felt by all. The amend- ment was accepted unanimously. The Constitution was then enrolled, in order to be signed. The certificate preceding the signature was adopted by ten States, against South Carolina divided, two delegates of the latter State being inclined to a form which more strongly expressed their consent to the Constitution. Mr. Hamilton, strongly opposed to the instrument as not giving enough power to the national government, but signing it in- dividually as a delegate from New York, was anxious that every member should sign. " Is it possible," said he, " to deliberate between anarchy and convulsion on one side, and the chance of good to be expected from the plan on the other?" But no appeal could convert the opposing sentiments of Randolph, Geiry, and Mason. These three only, of all who were present, refused to put their names to that con- OTHER SPECIAL PROVISIONS 197 secrated roll, which was destined to a glorious immortality of remembrance among their coun- trymen, and to be the eternal signal of an epoch in the civilization of mankind. Happy were they who sacrificed local prejudice and jealous fears to the welfare of the greatest number ; for they secured to themselves a fame for which kings might well exchange their crowns, — a fame which shall endure till the monuments of history perish from the earth. In submitting the result of their labors to the Congress of the Confederation, to be by them communicated to the several States, the Convention accompanied it with a letter, which briefly recounted the difficulties to be over- come, and their hopes of the approval of their action. They said : — "It is obviously impracticable, in the Fed- eral government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. ... In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, — the consolidation of the Union, — in which is involved our prosperity, felicity, safety, per- haps our national existence." This letter was approved by the Convention, 198 EVOLUTION OF THE CONSTITUTION signed by Washington, and with the Constitu- tion transmitted to the Confederate Congress, then in session at New York. On the 20th of September these communi- cations were received by that body, and for the first time pubHshed to the country. The Con- stitution was assailed at once on many sides, and for the very reasons which had been so fully canvassed and overcome in the Conven- tion. From the congressional delegates of Vir- ginia and from New York came the bitterest hostility. But Madison soon appeared in his seat, and the friends of the Constitution joined the battle with courage and organization. On the 28th of September they succeeded in carrying a resolution transmitting the docu- ments to the legislatures of the several States, in order to be submitted to conventions in the manner resolved by the national Convention. The great contest was then transferred to the separate States, where its fate during several anxious months was suspended in a doubtful balance. THE ACTION OF THE STATES IN RATIFICATION The question came first before each legisla- ture whether they would even call a conven- tion. Second, should it be promptly called or deferred to await the action of other States ? Richard Henry Lee, of Virginia, and his confederates in different States were indefati- gable in disseminating hostile views and their plans for the defeat of the Constitution through- out the Confederacy. Against them, most for- tunately for the country and the Union, were arrayed its equally indefatigable friends. Ham- ilton, Madison, and Jay contributed those re- markable and historical commentaries on the proposed Constitution known as "The Fed- eralist," and now preserved as part of the his- tory of the nation. The entire press of the country was engaged on the two sides. The courage and violence of assault on one side were met and resisted by an equal bravery and resolution in defence. Above all leaders on either side rose the great and revered figure of Washington, who, from his retreat at Mount Vernon, expressed his patriotic hopes and 200 EVOLUTION OF THE CONSTITUTION wishes in numerous communications, which reached and influenced the controlling char- acters in many States. The cry of the nation- alists was, " Union or dissolution, — the Con- stitution or anarchy." The discussion went on in every corner of the various States, in private conversation as well as in public assemblies. The inimical effort was made in several of the States to declare the ratification conditional upon amendments to be adopted ; but Madison gave the opinion that such action could not be construed as a ratification. It must be un- conditional or the State could not be included in the Union. The influence of Monroe — fortunately, a much weaker character than Madison — was cast against the Constitution. Jefferson, from beyond the seas, proposed a cunning measure of opposition that came near proving fatal to a complete union. He recom- mended the adoption of the Constitution by nine States in order to bring it into existence, the others standing out until proposed amend- ments should be adopted. This evil counsel produced bad fruits, but they fortunately failed to ripen into the threatened results. Delaware, least of the sisterhood, was first to decide. With joy and with unanimity her voice was given for ratification on December Pennsylvania was but little later. Her con- RATIFICATION BY THE STATES 201 vention was earlier in session, but, thwarted by a resolute minority, the debate was pro- longed and her action delayed. On the nth of December, Wilson, still the strong cham- pion of the new Union, declared, " This system is not a compact ; I cannot discern the least trace of a compact; the introduction to the work is not an unmeaning flourish. The sys- tem itself tells you what it is, — an ordinance, an establishment of the people." By a vote of forty-six to twenty-three Pennsylvania ratified the Constitution on the 12th of December, 1787. New Jersey next, and only later by a day, gave her ratification to the Constitution " and every part thereof," with unanimity of voices, on December 13, 1787. Georgia began the new year with her unani- mous assent, given on the 2d of January, 1788. Next came Connecticut, whose statesmen had done so much to build the new edifice, and whose judge, the learned Johnson, had presided over its final grace of form. By a vote of one hundred and twenty-eight to forty this State gave her adherence to the new plan of government on January 9, i ySS. Friends and enemies alike now fixed their eyes on Massachusetts, the State next to Vir- ginia the most important of those whose 202 EVOLUTION OF THE CONSTITUTION action was awaited. Her delegate, Elbridge Gerry, had refused to sign, and had made pub- lic his reasons therefor. He was defeated for the state convention by his townsmen. But elsewhere strong opponents of the new gov- ernment were elected, and a count showed its friends to be in a minority. By wisdom in action, by reason in debate, and chiefly by per- sonal influence and solicitation, enough votes were won over in the end to secure an approval of the Constitution by a vote of one hundred and eighty-seven to one hundred and sixty- eight. Massachusetts, after a hard, long, and doubtful struggle, thus brightened the hopes of patriotic Virginians on February 6, 1788. Maryland lay too near Virginia to escape the infection of the hostility developed in that State by Richard Henry Lee, Patrick Henry, and other dissidents. But on the great ques- tion her people were sound in most of the counties. The number elected of enemies of the new Union was not large, but their oppo- sition was very bitter. Her convention gave its approval, by a vote of sixty-three to eleven, on the 26th of April, 1788. In South Carolina the seeds of Virginia dis- content, and of a possible Southern confeder- acy, had been widely sown. The fruit was a persistent opposition offered by several leaders of public opinion. After ten days of contest RATIFICATION BY THE STATES 203 for defeat or postponement of the ratification, the friends of the Constitution carried the day, by a vote of one hundred and forty-nine to seventy-three, on the 23d of May, 1788. One State more, and the new government could be inaugurated! New Hampshire had modestly awaited the action of larger States. Now the ambition of her unionists was to sig- nalize their State by completing the sanction of the Constitution. This was done while the debate was still prolonged in the Virginia Con- vention ; and New Hampshire became the ninth State, by a vote of fifty-seven to forty-six, on June 21, 1788. In Virginia there was a contest of the great- est obstinacy, with few, if any neutrals. Henry, Grayson, and Mason led the hostile forces. Madison, Pendleton, Marshall, and Randolph (now reconciled) confronted them at every point in defence of the Constitution. Patrick Henry sounded the trumpet of state sover- eignty with the cry, " The Constitution is the severance of the Confederacy. Its language, ' we, the people,' is the institution of one great consolidated national government of the people of all the States, instead of a government by compact with the States for its agents." Pen- dleton rallied the unionists to the cry, " Who but the people can delegate powers, or have a right to form government? There is no quarrel 204 EVOLUTION OF THE CONSTITUTION between government and liberty: the former is the shield and protector of the latter. The question must be between this government and the Confederation, which is no government at all. This is to be a government of laws, and not of men." From the second day of June the war was raged at Richmond with alternate hopes and fears. Finally, having by her delay yielded to New Hampshire the honor of that conclusive sanction which the ninth State could give to the new Union which she herself ini- tiated, Virginia, by a vote of eighty-nine to seventy-nine, ratified it, being the tenth State, on June 25, 1788. The friends of the Constitution awaited the action of the remaining States with less anxi- ety, now that the three outstanding States were wholly separated from each other, and whether single or confederated would be powerless against the Union. The convention of New York met while that of Virginia was still in the throes of the great debate. There had been a certain concert of action, through Richard Henry Lee and Governor Clinton, of the ene- mies of the Union in the two States. Clinton organized and led them in the convention of New York, and was chosen its president, and had the aid of the two seceders, Yates and Lansing. The friends of the Constitution had the benefit of the great ability of Hamilton, Jay, RATIFICATION BY THE STATES 205 and Chancellor Livingston. On the eighth day of their session the news arrived that New Hampshire had given the requisite vitality to the Constitution. Nine days later came the re- port that Virginia had joined the Union. The courage of the anti-unionists, who formed the majority, was broken. They sought a digni- fied retreat, as in Virginia and Massachusetts, through propositions of future amendment. One of them even proposed to ratify, reserving the right to secede if the amendments should fail. Against this Hamilton spoke with such force that the mover himself abandoned it. But Lansing in substance renewed it. Then Hamilton read the opinion of Madison, just received, that such a condition would vitiate the ratification, affirming that " the Constitu- tion requires an adoption in toto, 2ind forever y' thus early crushing the theory of secession. Then the conditional propositions came to an end, and a legal form of ratification was agreed to (there being some absentees), by a vote of thirty to twenty-seven, on July 26, 1788. There remained North Carolina, which had in August, 1778, refused to ratify prior to amendment. She gave up her opposition to the Constitution only after the organization of the new government, dating its ratification from the 21st of November, 1789. Rhode Island lingered without until May 29, 1790. 2o6 EVOLUTION OF THE CONSTITUTION At last the sun was risen in the heavens, the clouds were dissipated, and all the planets were moving in their respective orbits, their centrifu- gal impulses balanced by the attractive bonds of the powerful central luminary, which shed upon them light and warmth and force. XI SEQUEL OF AMENDMENTS Time was required for both States and peo- ple to adjust their opinions and their affairs to the new institutions of government. The majority in some of the conventions had not been fully convinced either as to the extent of the powers surrendered by the States and ac- quired by Congress and the Judiciary or of the security of each State and its citizens in the exercise of rights not conceded to the Union. Sources of revenue hitherto enjoyed by the States were to be given up, and new sources must be found. What new laws would be passed by this new legislature in which the citizens of each State had so small a share of authority ? How should they grow to recognize other States as their sisters and their citizens as brothers ? How soon would selfishness give way to equality and fraternity? Would the habit of affection for one's own State ever permit the growth of a superior affection for the union of all the States ? Which of the two forces, cen- trifugal or centripetal, was destined to predomi- nate in the future ? The azure sky of patriotic hope was not without its auguries of fear. 2o8 EVOLUTION OF THE CONSTITUTION The action of the conventions of such im- portant States as Massachusetts, Virginia, and New York in recommending certain amend- ments to the new Constitution, which had also the concurrence of other States, rendered their early consideration desirable in the interest of harmony and contentm'ent among the people, now directly charged with the national govern- ment. The first national Congress, therefore, pro- posed to the several States twelve amendments to the Constitution, covering the points appear- ing to be most reasonably insisted upon by the States. The first of these proposed to control in a different manner the number of repre- sentatives in the first branch of Congress. The second proposed that no law varying the compensation of senators and representatives should have effect until after a succeeding election. Neither of these was ratified by a sufficient number of States to give it validity. The remaining amendments, being now the first ten articles of amendment appended to the Constitution, and held to be limitations upon possible claims of power by the national govern- ment, were ratified by ten States. No returns were made by the States of Massachusetts, Connecticut, or Georgia of their action on them. The eleventh article of amendment was pro- SEQUEL OF AMENDMENTS 209 posed at the first session of the Third Congress (i793)» ii^ order to surely exempt States from liability to suits in the United States courts brought by citizens of any other State, or by foreigners. The returns of state action upon this subject were so dilatory that Congress pas.sed a resolution in March, 1797, requesting the President to communicate with the eight outstanding States on the subject. From the message of President Adams (January, 1798) it appears that twelve of the sixteen States had at that time certified their ratification, which es- tablished the validity of the amendment. New Jersey and Pennsylvania refused their ratifica- tion, while South Carolina and Tennessee had not acted upon it. The twelfth amendment, establishing the present mode of electing the President and Vice-President, was proposed at the first session of the Eighth Congress (1803), and was declared adopted in September, 1804, by the votes of thirteen out of seventeen States, being three fourths thereof. The thirteenth, fourteenth, and fifteenth amendments had their origin in questions aris- ing from the late war of secession. The thir- teenth had for its object the perpetual aboli- tion of slavery. The fourteenth established the equality of citizenship in all the States, and prohibited every State from abridging the privi- 210 EVOLUTION OF THE CONSTITUTION leges of citizens of the United States, and from denying to them the equal protection of the laws, and from taking life, liberty, or property without due process of law. It also provided for a reduc- tion of representation in Congress proportioned to the unjust exclusion of any class of citizens from the right of voting ; and excluded from holding office under the United States, or any State, certain classes of men who had been en- gaged in the Rebellion, unless first relieved of disability by a vote of two thirds of each branch of Congress. It further provided a constitu- tional guarantee of the validity of the public debt of the United States, and prohibited to every State, as well as to the United States, the assumption of any debt or obligation in- curred in aid of insurrection or rebellion, and the recognition of any claim for slaves lost or emancipated. The fifteenth prohibited the abridgment or denial of the right to vote of cit- izens of the United States on account of race, color, or previous condition of servitude. Full power was expressly given to Congress to en- force these several amendments by legislation. All these last articles had for their per- manent object the establishment of universal personal liberty, and the fundamental rights of citizenship everywhere within the Union. The ratification of the thirteenth article was pro- posed by Congress February i, 1865, and was SEQUEL OF AMENDMENTS 211 proclaimed on the i8th of December, 1865 ; of the fourteenth was proposed June 16, 1866, and proclaimed on the 28th of July, 1868; of the fifteenth was proposed February 27, 1869, and proclaimed on the 30th of March, 1870. The foregoing fifteen articles of amendment are the only modifications of the work finished on the 17th of September, 1787, of the propri- ety of which, time, events, and argument have convinced the American people. The first ten articles were not so much amendments of con- stitutional provisions as they were a declara- tion of ungranted rights which the national government did not claim. The eleventh settled in favor of the States a question of their sua- bility in court which had been debatable. The tide of constitutional opinion had thus far flowed towards the rights of the States, and they were satisfied. In later years, some of the States began to assert rights of separate and final judgment against the supremacy of acts of Congress and of the national courts, which were inconsistent with the intention of the Constitution and of its founders. The tide of public opinion turned with the exposure of the new dangers threaten- ing national institutions, and flowed strongly towards the further protection of that Union which, as Madison had advised New York, was indissoluble. Under this impulse the last three 212 EVOLUTION OF THE CONSTITUTION articles were adopted, in order to put new pow- ers into the hands of the common government, and to place the most important rights of per- sonal liberty and of American citizenship under the protection of the national shield. This was a work impossible to the fathers by reason of slavery; and was only accomplished by their descendants at the cost of vast treasure and richer blood. The passing generation of men may there- fore proudly claim to have added something to the rich legacy which our ancestors bequeathed a hundred years ago. Let us hope that as cen- tury shall follow century into the unmeasured flood of time, the uncounted millions who shall inherit this Western World will maintain their allegiance to the Constitution and Union with equal zeal, and with all the support of heart and tongue and sword. '* Thy sun is risen, and shall not set Upon thy day divine ! Ages of unborn ages yet, America, are thine ! ** APPENDIX APPENDIX Congressional Calls on the President for Papers AND Information The right of either House of Congress, or of both Houses concurrently, to call on the President for papers or other specific official information, is not provided for by the Constitution. It does not appear to have been discussed in the Convention. The only constitutional provision even remotely relating to the subject simply declares that the President " shall from time to time give to the Con- gress information of the state of the Union." Nevertheless, each House has at different times made such demands upon the Executive, and the constitutional duty of the President in respect to such calls has been the subject of discussion. In most cases of the exercise of this claim for information the Executive has yielded, because it was for legitimate objects and in the ordinary course of legislative proceeding. But at other times it has proceeded from mere political hostility, and had for its object to pro- vide means for party assaults upon the Administration or its policy, irrespective of the public interests involved. In cases of the latter kind, and even in other cases where the Executive has complied with the demand, he has been careful to assert his constitutional right of independent decision, and to refuse compliance in his official discretion. The question first arose during the presidency of Wash- ington. In March, 1796, the House of Representatives called on the President for instructions given to the United States Minister preliminary to Jay's Treaty, which had been already ratified, " except such as any existing nego- tiation may render improper to be disclosed." Madison 2i6 APPENDIX proposed a further exception of " such as were inconsist- ent with the interest of the United States to disclose." Madison's amendment was rejected by a majority of lo votes. The House on March 24 passed the Resolution by a vote of 62 to 37. On the 30th of March Washington responded by a Message of refusal. Among his reasons he declared that " as it is essential to the due administration of the govern- ment that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compli- ance with your request ; " and he added the following argument : — "Having been a member of the General Convention and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject ; and from the first establishment of the govern- ment to this moment my conduct has exemplified that opinion — that the power of making treaties is exclusively vested in the President, by and with the advice and con- sent of the Senate, provided two thirds of the senators present concur ; and that every treaty so made and pro- mulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared and they have believed that, when ratified by the President, with the advice and consent of the Sen- ate, they became obligatory. In this construction of the Constitution every House of Representatives has hereto- fore acquiesced ; and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not a true one. Nay, they have more than acquiesced ; for till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect. APPENDIX 217 " There is also reason to believe that this construction agrees with the opinions entertained by the state conven- tions when they were deliberating on the Constitution, especially by those who objected to it because there was not required in commercial treaties the consent of two thirds of the whole number of the members of the Senate instead of two thirds of the senators present, and because in treaties respecting territorial and certain other rights and claims the concurrence of three fourths of the whole number of the members of both Houses, respectively, was not made necessary." " If other proofs than these and the plain letter of the Constitution itself be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the Department of State. In those journals it will appear that a proposition was made * that no treaty should be binding on the United States which was not ratified by a law ' and that the proposition was explicitly rejected." President Monroe was called upon by a Resolution of the House of Representatives, January 4, 1825, for docu- ments relating to the conduct of naval officers and other public agents in South America. He replied by Message of January 10, 1825, declining compliance with it as in- consistent with the public interest. The Senate, on the nth of December, 1833, on motion of Mr. Clay and by a vote of 23 to 18, called upon Presi- dent Jackson to communicate to the Senate " a copy of the paper which has been published " over his signature and which related to the removal of the deposits from the United States Bank. In his Message of refusal Jackson declared the Execu- tive to be " a coordinate and independent branch of the government equally with the Senate," etc., etc. He added the following declaration: "Knowing the constitutional 2i8 APPENDIX rights of the Senate, I shall be the last man under any circumstances to interfere with them. Knowing those of the Executive, I shall at all times endeavor to maintain them agreeably to the provisions of the Constitution and to the solemn oath I have taken to support and defend it. " I am constrained, therefore, by a proper sense of my own self-respect and of the rights secured by the Con- stitution to the executive branch of the government to decline a compliance with your request." The Senate, on the 12th of June, 1834, called on Presi- dent Jackson to transmit to the Senate an official com- munication from him to Andrew Stevenson relating to his nomination as E. E. and M. P. to Great Britain. The Pre- sident replied June 13, as follows : — " As a compliance with this Resolution might be deemed an admission of the right of the Senate to call upon the President for confidential correspondence of this descrip)- tion, I consider it proper on this occasion to remark that I do not acknowledge such a right; but to avoid mis- representation I herewith transmit a copy of the paper in question." President Jackson also Qanuary 6, 1835) refused com- pliance with a Resolution of the House of Representa- tives demanding certain information. He asserted the right of the Executive to refuse com- pliance with a demand of the Senate for copy of an official report, as found in his Message of January 13, 1835. But for a complete exposition of President Jackson's views on the subject, see his Message of February 10, 183s, to the Senate, in which among other emphatic de- clarations is found the following : — " This is another of those calls for information made upon me by the Senate which have, in my judgment, either related to the subjects exclusively belonging to the Executive Department or otherwise encroached on the APPENDIX 219 constitutional powers of the Executive. Without conced- ing the right of the Senate to make either of these requests, I have yet, for the various reasons heretofore assigned in my several replies, deemed it expedient to comply with several of them. It is now, however, my solemn convic- tion, that I ought no longer, from any motive nor in any degree to yield to these unconstitutional demands. Their continued repetition imposes on me, as the representa- tive and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive." In March, 1848, President Tyler answered a request by the House of Representatives addressed to the Presi- dent and heads of the several departments for certain information by a refusal, it not being " consistent with the rights and duties of the Executive Department." He said in his Message, " It becomes me, in defence of the Con- stitution and laws of the United States, to protect the Executive Department from all encroachments on its powers, rights, and duties." On January 31, 1843, he again refused compliance with the Resolution of the House requesting certain reports, and reasserted the constitutional discretion of the Execu- tive in such cases ; and again in February, while granting the request of the House of Representatives, he reserved the like discretion. President Polk, in March, 1845, courteously denied the request of the Senate for certain information touching the President's action respecting the annexation of Texas. He also in January, 1848, denied a request from the House for certain instructions given to Officers of the Army or Navy of the United States, concluding his Mes- sage in the following words : " I regard it to be my con- stitutional right and my solemn duty under the circum- stances of this case to decline a compliance with the request of the House contained in their Resolution." 220 APPENDIX President Fillmore on several occasions also declined the requests of the Senate. President Cleveland, in his Message of March i, 1886, against the numerous requests and demands of the Sen- ate upon the different departments of the government for information and documents, says : — " My oath to support and defend the Constitution, my duty to the people who have chosen me to execute the powers of their great office and not to relinquish them, and my duty to the Chief Magistracy, which I must pre- serve unimpaired in all its dignity and vigor, compel me to refuse compliance with these demands." On the 1 6th of May, 1896, the Senate called on Presi- dent Cleveland for certain correspondence, a portion of which he transmitted ; as to the remainder, he said : — "It being, in my judgment, incompatible with the public service, I am constrained to refrain from com- municating to the Senate at this time copies of the cor- respondence described in the third paragraph of said Resolution.'* From the foregoing illustrations it appears that the Constitution has been practically interpreted in a manner to exclude any right in either House to dictate the action of the Executive in this respect. Hence the request by either House, addressed to the President or to any Ex- ecutive Department, for information should never be in the form of an order^ direction^ or instruction^ unless it be a duty imposed by some express law. ^f^ THE OF v^x^^^ ^:^^ ^'^^ ^r^^^^r-z: HISTORY OF THE MONROE DOCTRINE THE HISTORY OF THE MONROE DECLARATION OF 1823 In every conflict of European with American territorial possession on the two western con- tinents, our countrymen make their appeal to the Monroe Doctrine. It is quoted as the su- preme, indisputable, and irreversible judgment of our national Union. Among the very few political maxims which serve to guide public opinion in our country, this ranks as the chief. Aside from the traditions which preserve our neutrality in foreign wars and complications, and extend equality of commercial advantages to all iriendly nations in their intercourse with us, it may be said to indicate the only estab- lished idea of foreign policy which has a per- manent influence upon our national adminis- tration. It has also taken fast hold on the popular mind. A President of the United States, justly appealing to it in an emergency, could not fail of unanimous following of pa- triotic citizens, even in presence of a conse- quently impending war. It touches the instinct of national safety, and of pride in our national institutions. A sagacious observer of public 224 THE MONROE DOCTRINE opinion will not fail to mark how a simple appeal to this " doctrine," in a given case, holds the general judgment in suspense until it is clear whether its principles are involved. If that question is affirmatively solved, the judg- ment becomes resolute and unchangeable. In presence of this powerful sentiment, sway- ing a great people as well as their government, it is not surprising that the application of the declaration often comes into discussion on the floor of Congress and in the press. It becomes more and more important that it should be understood, in respect to its origin and pur- pose. When legitimately directed, Europe can never complain of surprise or wrong, for her governments have had notice of it from the United States for more than three quarters of a century. Indeed, its origin partially, and its occasion wholly, were in Europe. While it has never received express legislative sanction at Washington, this is in no degree to be attrib- uted to failure of approval. It has been the natural consequence of a desire, on the part of Congress, to refrain from committing itself — in an academic sense, merely — to a general declaration. They preferred to leave the initia- tive of its application, in any complication of circumstances, to the executive organ constitu- tionally charged with the conduct of foreign relations, while themselves retained their con- THE MONROE DOCTRINE 225 stitutional function of enforcing it, in their ulti- mate discretion, by a declaration of war. So early as January, 181 1, President Madi- son communicated to Congress some corre- spondence indicating an intention on the part of Great Britain to acquire possession of cer- tain territory claimed as a part of Spanish Florida, and situated on our southern bound- ary. In his accompanying message he said : " I recommend to the consideration of Congress the seasonableness of a declaration that the United States could not see without serious disquietude any part of the neighboring terri- tory in which they have in different respects so deep and so just a concern pass from the hands of Spain into those of any other foreign power." This recommendation was made twelve years before the Declaration of Monroe, and was sug- gested by the menace to our national safety if another European power should obtain new possessions of territory upon our borders. It received the sanction of Congress at the same session. But the registered birth of the historical de- claration was in December, 1823. It had both an international and national period of gesta- tion, the history of which is full of interest. Our government was extremely fortunate in 226 THE MONROE DOCTRINE having at that time for Secretary of State John Quincy Adams, and for its envoy in Lon- don, Richard Rush, of Pennsylvania. The former had not only the advantage of early experience with his father in Europe, but had represented this country in the Netherlands, Portugal, Prussia, Russia, at the Treaty of Ghent, and finally at London. He was thus thoroughly informed of the ways of European diplomacy, and of the spirit of the European powers. To this knowledge he added the firm will and resolute patriotism which have long characterized that distinguished family. Mr. Rush, as his agent at the court of St. James, joined to superior scholarly attainments the agreeable manners which win friendship, the truthful qualities which win confidence, and the careful precision in action which saves governments from diflBculties and chiefs from annoyance. Mr. Gallatin was our envoy ac- credited at Paris, but was, during this period, on leave, and in the United States. Mr. Mid- dleton was the minister of the United States at St. Petersburg, where the discussion of the principle was also in part conducted. The situation in Europe was uneasy, and among its western nations was some anger and a growing jealousy. The eastern members of the " Holy Alliance " were haughtily confi- dent, having autocratic Russia at their head THE MONROE DOCTRINE 227 and subjugated France at their feet. One Bourbon had been enthroned at Paris by for- eign arms, and another, at Madrid, had re- placed a Bonaparte. When the latter came to that throne, with the Spanish people rebellious, the Spanish-American colonies had revolted; and, on the restoration of the Bourbon mon- arch, had resolved to maintain their separation, with independent governments. In 1822, our government, on full consideration, recognized their independence, and resolved thenceforth to use its entire influence to secure the recog- nition of the new states by Europe. Spain, dur- ing the Napoleonic confusion, had tasted the sweets of a more liberal national life ; and the Cortes had imposed on Ferdinand VII, after his restoration, a constitution derived from popular right, and inconsistent with the divine right of kings. The royalists, inspired by the French government, created an insurrection in behalf of the Bourbon principle ; but they were defeated. The successful introduction of pop- ular right into Spain was rebellion against the principle of the Holy Alliance. The three great eastern powers withdrew their ministers from the government controlled by the Cortes, and left to the French monarch the wretched dis- tinction of restoring absolutism to the throne of Spain. On the 28th of January, 1823, he announced, in his speech from the throne to 228 THE MONROE DOCTRINE the French Chambers, that he had ordered the recall of his minister at Madrid, and that a " hundred thousand French troops were ready to march to preserve the throne of Spain to a descendant of Henry IV, to preserve this noble kingdom from its ruin, and to reconcile it to Europe." He further declared that " Ferdinand VH should be free to give to his people the institutions which they can only hold from him, and which, while assuring their repose, would dissipate the just disquiet of France." Here was the bold annunciation of that claim of the Holy Alliance to the divine right of monarchy, and to interference against free governments, which was the occasion of seri- ous alarm to the American Cabinet, and to which portions of the message of Mr. Monroe were a response. This despotic principle ex- tended equally to Spanish subjects in Spain, and to her late subjects in America. It might at any time be claimed to extend to the sup- pression of this republic, as deriving its con- stitution from an unlawful authority, — from a rebellious people, — and as furnishing an ex- ample which caused disquiet to lawful mon- archies. In August, 1823, the French troops had gained control of so much of Spain as indi- cated the final success of the purposes of the Holy Alliance and the military triumph of THE MONROE DOCTRINE 229 France. Already was the question raised in the English Foreign Office what would be the next step of Spain and of France, and whether the Holy Alliance itself would not proceed to the reclamation of Spanish America. Eng- land, in consequence of the abolition of the old Spanish colonial restrictions on trade, had already opened a large and profitable com- merce with Spanish America. This would be lost if there should be a restoration of colonial dependence. This, therefore, was not to be desired. On the other hand, England was the greatest proprietor of dependent colonies on the globe. It was not for her government to assume the attitude of encouragement to colo- nial revolt, or of premature recognition of the independence arising from it. But, if not re- cognized, would not France join her army and navy to the forces of Ferdinand, and so restore European control over the former Spanish do- mains in America ? In that case, would not France demand and receive large compensa- tion in territory and colonial dependence, and in commercial intercourse, for her expendi- tures in the Peninsula and beyond seas } And so would appear on the American scene a contestant more vigorous and more formidable than Spain — a more dangerous rival i;n both commercial and military affairs. These were anxious questions with the Eng- 230 THE MONROE DOCTRINE lish Cabinet in the summer of 1823, when Mr. Canning, as English Minister for Foreign Af- fairs, on the 1 6th of August, in conversation with Mr. Rush, opened the inquiry whether the United States would not join England in the policy of disclaiming all intention of appro- priating to themselves any portion of the Span- ish possessions in America ; of regarding the question of their independence as practically settled ; and of opposition to the acquisition of any of these possessions by France, either by conquest or by cession. These views of the English government had been, in part, pre- sented to France in ^April, through a note addressed by Mr. Canning to the British am- bassador at Paris. French successes in Spain appear to have increased the fears of the Brit- ish government, and to have inspired their minister with the thought of securing an ally for their protest in the government of the United States. He believed the moral effect of their concurrent representations, with their large share of maritime power, would be of it- self sufficient to prevent the results which were apprehended. He himself believed " that now all America might be considered as lost to Europe, so far as political dependence was con- cerned." On the 20th of August, 1823, Mr. Canning again presented the subject in a private and THE MONROE DOCTRINE 231 confidential note to Mr. Rush, evidently care- fully worded and offered with an air of great frankness, in which he declares the following points of English policy, and asks the United States to join with England in making them public in some suitable form. These points are: — ''First That we conceive the recovery of the colonies by Spain to be hopeless. " Second, We conceive the question of the recognition of them as independent states to be one of time and circumstances. " Third, We are, however, by no means dis- posed to throw any impediment in the way of an arrangement between them and the mother country by amicable negotiation. " Fourth, We aim not at the possession of any portion of them ourselves. ''Fifth, We could not see any portion of them transferred to any other power with in- difference. " If these opinions and feelings are, as we firmly believe them to be, common to your government with ours, why should we hesitate mutually to confide them to each other, and to declare them in the face of the world } " The manner of bringing the United States to declare itself on point four is worthy of at- tention. The despatch of Mr. Rush communi- cating this " unofficial " note was received by 232 THE MONROE DOCTRINE Mr. Adams October 9th. Mr. Rush, in his re- ply to Mr. Canning, accepts in substance these declarations, choosing his own form of expres- sion, and excluding the second, as the recogni- tion by the United States was already accorded ; but disclaims authority from his government as to the manner of its avowal of the princi- ples and sentiments involved. On the 23d of August, 1823, as reported in Mr. Rush's despatch of August 28 (also received by Mr. Adams October 9), Mr. Can- ning, by way of urgency, addressed another note to Mr. Rush, in which he advised him of information received that, after the French suc- cess in Spain, there was an intention to assem- ble a congress, or to devise other concerted action upon the affairs of Spanish America. To this note Mr. Rush replied in like spirit as before, always insisting upon the importance of an acknowledgment of the independence of the American states by England, and intimat- ing that he would take great responsibility on himself in following the direction suggested by Mr. Canning, if such acknowledgment should be made at once ; and this intention he reported in his despatch to Mr. Adams. Under date of 31st of August Mr. Canning addressed another confidential note to Mr. Rush, who communicated it to the Depart- ment with his despatch of September 8 ( re- THE MONROE DOCTRINE 233 ceived by Mr. Adams November 5), in which he withdraws any official and decisive character of his former notes, asking that they be treated not as a proposition, but as evidence of the na- ture of a proposition which he would have de- sired to make if Mr. Rush had been provided with authority to entertain it. Mr. Canning again, on the i8th of Septem- ber (reported by Mr. Rush under date of 19th, and received by Mr. Adams November 3), revived the subject with Mr. Rush at great length and with great urgency ; and inquired whether, if England should acknowledge the independence of the Spanish-American states, that would affect Mr. Rush's action upon the declarations proposed to be made. To this Mr. Rush stated frankly that, while he had no specific powers to unite in such declaration, he would in that case stand upon his general powers, and "would put forth with Great Britain the declaration to which he had invited him," and would do so " in the name of his gov- ernment, and consent to its being promulgated to the world." On the 26th of September, Mr. Canning asked Mr. Rush whether he could not assent to the proposals on a promise by Great Britain of the future acknowledgment of the inde- pendence of the South American states. To this Mr. Rush gave a decided refusal. 234 THE MONROE DOCTRINE It appears from Mr. Rush's despatch of \ October lo (received by the State Department November 19) that he was then convinced that the whole effort of Mr. Canning was made in the interests of Great Britain as against France and Russia, and that England had no inter- est in American independence except so far as it concerned British interests and ambition; and that her government was even in general sympathy with the Holy Alliance in its efforts to suppress popular reforms in Europe. He considers the propositions as abandoned by England, and the discussion as at* an end. He awakens to the fact that British policy will be dictated exclusively by British commercial inter- ests, irrespective of colonial or national rights. Another interview with Mr. Canning on the 24th of November, reported by Mr. Rush under date 26th November, explains the subsequent action of the English Secretary. Coming to no understanding with Mr. Rush, he decided to proceed directly to the French government for an exchange of views on the subject of Spanish America. And in Mr. Rush's despatch of December 27, 1823, he communicates to hii government the memorandum of the conference between the French ambassador in London, Prince de Polignac, and Mr. Canning, which was begun October 9 and concluded October 1 2. On the British side it was declared that the THE MONROE DOCTRINE 235 restoration of the colonies to Spain was hope- less, and further war useless. England would continue neutral, but the union of any foreign power with Spain in the attempt to recover the colonies would present a new question on which England would be free to act. The govern- ment disclaimed any desire to appropriate to itself territory or exclusive advantages, and intimated its intention to recognize the new states ; and, in presence of any foreign force or menace in the Spanish-American dispute, they would be recognized without delay. On the part of France it was declared that the claim of Spain was hopeless, that France had no intention or desire to avail itself of the present state of the colonies, or of the relations between France and Spain, to appropriate to herself any part of the Spanish possessions in America, or to obtain exclusive privileges ; and that she abjured all intention to act by force of arms against the colonies. France was in favor of a congress of the allies to facilitate reconciliation between Spain and her colonies, and was opposed to any recognition of the new states at present. Mr. Canning further remarked upon the impropriety of a representative congress dis- cussing Spanish -American affairs "without calling to their counsels a power so eminently interested in the result as the United States of 23# THE MONROE DOCTRINE America." To this the Prince avowed himself without instructions, but, personally, saw no in- superable difficulty in such an association. In point of fact, an invitation to a congress of the powers, to be held at Paris, to consider Spanish- American affairs, was issued by the Conde de Of alia on the part of the Spanish government, under date of 26th December, 1823. All these despatches of Mr. Rush, up to and including that of October 10, which announced the abandonment of the propositions, were re- ceived by Mr. Adams prior to November 20, and, of course, in advance of the message of Mr. Monroe. But it was neither Mr. Rush's despatches nor Mr. Canning's proposals which first presented the question of principle to the American gov- ernment. Mr. Adams possessed not only a trained intellect, inspired by ardent love of our republican institutions, but a perfect acquaint- ance with the spirit, methods, and tendency of European diplomacy. No man could better appreciate the menaces to human liberty every- where, and to all rights of the people, as threat- ened by the several congresses of the allied powers, and especially by their circular of De- cember 5, 1822, in which the allied monarchs announced their resolution " to repel the maxim of rebellion, in whatever place, or under what- ever form, it might show itself." He knew that THE MONROE DOCTRINE 237 the unorganized riot of insurrection and the organized riot of despotism were alike destruc- tive of popular libert}\y Just now, after the final overthrow of all the Bonapartes, it was the riot of despotism. It was important to keep these despotic powers from our continent, if possible. An ocean between was safer than contiguity of any kind. There were many leagues of lit- tle known and much disputed boundary on our northwestern coast, claimed by the United States, by England, and by Russia. The Rus- sian minister at Washington wanted to know what instructions our Secretary was going to send to Mr. Middleton. Mr. Adams answered him sturdily, on July 17, 1823, that "we should contest the right of Russia to any territorial establishments in this continent ; and that we should assume distinctly the principle that the American continents are no longer subjects for^ any new European colonial establishments." Here, already announced to the chief of the Holy Alliance more than four months prior to President Monroe's message, was one branch of the Monroe Declaration. In his message of December following, it took authoritative form as follows : " The American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future coloniza- tion by any European power." 238 THE MONROE DOCTRINE While Mr. Canning was anxiously observing the dangers which threatened British commer- cial interests in America from the probable interferences of the allied powers in Spanish- American aflFairs, and while Mr. Rush was writing his urgent despatches, the Russian Premier, Count Nesselrode, was dictating cer^ i tain despatches to his minister at Washington, Baron Tuyl, touching the same affairs. These despatches were communicated to Mr. Adams in November, about the time of the arrival of the last despatches of Mr. Rush on the subject of the Canning proposals. "In stating the views of the Czar, Count Nesselrode took occasion to present the political ideas of the allied powers, as well as the Russian view of the Spanish claim to the revolted American continent Thus from various sides were concentrating upon Mr. Adams, in the autumn of 1823, notes of the preparation of a conflict which was gen- erally expected, and in which the mailed hand of the Holy Alliance would strike the new continents, and would confront the principles of European despotism with the principles of American liberty, in close and irrepressible combat. The stubborn patriotism of Adams did not for a moment falter. " My purpose would be," he says of himself, " in a moderate and conciliatory manner, but with a firm and determined spirit, to declare our dissent from THE MONROE DOCTRINE 239 the principles avowed in those communications, and assert those upon which our government is founded ; and while disclaiming all intention to propagate them by force, and all interference with the affairs of Europe, to declare our ex- pectation and hope that the European powers will equally abstain from the attempt to spread their principles in the American hemisphere, or to subjugate, by force, any part of these continents to their will." Here again is seen the gestation in Mr. Adams's fertile and resolute mind of the other branch of the Monroe Doctrine, and he notes that his "views were approved by the Presi- dent." Prior to the 25th of November, the Secretary of State had prepared his draft of a reply " in- tended as a firm, spirited, and yet conciliatory answer to all communications lately received from the Russian government, and at the same time an unequivocal answer to the pro- posals made by Canning to Mr. Rush. It was meant also to be eventually an exposition of the principles of this government, and a brief development of its political system as hence- forth to be maintained : essentially republican — maintaining its own independence, and re- specting that of others ; essentially pacific — studiously avoiding all involvement in the com- binations of European politics, cultivating 240 THE MONROE DOCTRINE peace and friendship with the most absolute monarchies, highly appreciating and anxiously desirous of retaining that of the Emperor Alexander; but declaring that, having recog- nized the independence of the South Ameri- can states, we could not see with indifference any attempt by European powers, by forcible interposition, either to restore the Spanish dominion on the American continents, or to introduce monarchical principles into those countries, or to transfer any portion of the ancient or present American possessions of Spain to any other European power." At this time, it appears by a remark of Mr. Adams, the President had already prepared a paragraph of his message relating to this sub- ject, to which his despatch was to be " conform- able." The draft of Mr. Adams was the subject of repeated discussions at the meetings of the Cabinet. President Monroe thought it too strong in its expressions. He was cautious, even timid, from fear of offending the Russian emperor, and believed it imprudent to state, as Mr. Adams desired, the principles of our republican government in answer to Count Nesselrode's statement of imperial principles. Messrs. Wirt, Calhoun, and Southard took part in the discussions, and Mr. Gallatin was called in for counsel. Very soon after the reception of the Can- THE MONROE DOCTRINE 241 ning proposals from Mr. Rush, the President had communicated them to the venerable pa- triot at Monticello for his opinion. Mr. Jeffer- son had represented his country at Paris and at London, and both as President and as a retired citizen was well advised of the course of European affairs. Nothing had ever shaken his republican faith or his sincere patriotism. Mr. Monroe confided to him the correspond- ence which contained the germs of such an im- portant feature of American policy, and which possibly involved the independence of the Spanish-American republics, with the fate of liberty itself in the western hemisphere. On the 24th October, 1823, Mr. Jefferson, at the age of eighty years, responds with the vigor and vivacity of youth : — " The question presented by the letters you have sent me is the most momentous which has ever been offered to my contemplation since that of Independence. . . . "Our first and fundamental maxim should be, never to entangle ourselves in the broils of Europe. Our second, never to suffer Europe to intermeddle with cis-Atlantic affairs. . . . " Great Britain is the nation which can do us the most harm of any one, or all on earth ; and with her on our side we need not fear the whole world. With her, then, we should most sedu- lously cherish a cordial friendship ; and nothing 242 THE MONROE DOCTRINE would tend more to knit our affections than to be fighting once more, side by side, in the same cause. Not that I would purchase even her amity at the price of taking part in her wars. But the war in which the present propo- sition might engage us, should that be its con- sequence, is not her war, but ours. Its object is to introduce and establish the American system, of keeping out of our land all foreign powers — of never permitting those of Europe to intermeddle with the affairs of our nations. It is to maintain our own principle, not to de- part from it. And if, to facilitate this, we can effect a division in the body of the European powers, and draw over to our side its most powerful member, surely we should do it. But I am clearly of Mr. Canning's opinion, that it will prevent instead of provoking war. With Great Britain withdrawn from their scale and shifted into that of our two continents, all Europe combined would not undertake such a war." After speaking of the question of the United States acquiring some Spanish-American do- mains, and finding it impracticable, he con- tinues : — " I could honestly, therefore, join in the de- claration proposed, — that we aim not at the acquisition of any of those possessions, that we will not stand in the way of any amicable arrangement between them and the mother THE MONROE DOCTRINE 243 country ; but that we will oppose, with all our means, the forcible interposition of any other power as auxiliary, stipendiary, or under any other form or pretext, and, most especially, their transfer to any power by conquest, ces- sion, or acquisition in any other way." By desire of the President, Mr. Jefferson transmitted the Rush correspondence to that other experienced statesman of Virginia, Mr. Madison, whose retirement at Montpelier, and his age of seventy-two years, could not prevent patriotic appeals to his wisdom and experience. The junior of Mr. Jefferson by eight years, the response of Mr. Madison indicates a mind by far senior to that of his more vivacious com- patriot. His logical mind accepts the situation as portrayed, and sees clearly the necessity " to defeat the meditated crusade " against Ameri- can independence. Under date of October 30, 1823, he writes to President Monroe: — " It is particularly fortunate that the policy of Great Britain, though guided by calcula- tions different from ours, has presented a co- operation for an object the same with ours. With that cooperation we have nothing to fear from the rest of Europe, and with it th^ best assurance of success to our laudable views. There ought not, therefore, to be any back- wardness, I think, in meeting her in the way she has proposed ; keeping in view, of course. 244 THE MONROE DOCTRINE the spirit and forms of the Constitution in every step taken in the road to war, which must be the last step, if those short of war should be without avail." In a note to Mr. Jefferson, written a few days later, he gives expression to a sentiment which ran as an undercurrent, and still runs as an undercurrent, of all the policy under dis- cussion. He says: "In the great struggle of the epoch between liberty and despotism, we owe it to ourselves to sustain the former — in this hemisphere, at least." We now see collected before President Monroe, in anticipation of the final form of his famous declarations, the motive forces and opinions which modified or directed the his- torical result. Mr. Canning's proposals, some- times hesitating, sometimes eager, always aux- iliary to some unavowed interest of England ; Mr. Rush's generous efforts to secure South American independence by British recogni- tion; Russia's bold enunciation of despotic principles and of the right of the Spanish monarch to reclaim his rebellious provinces; Mr. Adams's robust counterblast, declaring the inalienable rights of the people ; the vivacious counsels of JeflFerson's liberalism, and the sober advice of Madison's trained and logical wis- dom, — all these contributed to shape the other branch of the Monroe Declaration, as follows : — THE MONROE DOCTRINE 245 " We owe it to candor, and to the amicable relations existing between the United States and the allied powers, to declare that we should consider any attempt on their part to extend their system to" any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power we have not interfered, and shall not interfere ; but with the governments who have declared their independence and maintained it, and whose independence we have, on great consideration and on just prin- ciples, acknowledged, we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their destiny, by any European power, in any other light than as the manifestation of an unfriendly disposition toward the United States. . . . " It is impossible that the allied powers should extend their political system to any portion of either continent without endanger- ing our peace and happiness. . . . " It is equally impossible that we should behold such interposition in any form with indifference." The effect of this Declaration in Europe was all that could have been desired by the patri- otic statesmen who contributed their counsel to its adoption. The message arrived in Eng- land on December 24, 1823, twenty-two days 246 THE MONROE DOCTRINE from its delivery to Congress. On the 2d of January, Mr. Canning told Mr. Rush that the principle declared in the message, that the American continents were not to be consid- ered as subjects for future colonization by any of the powers of Europe, greatly embarrassed the instructions he was about to send to the British ambassador at St. Petersburg, touching the northwestern boundary. He believed that Great Britain would combat this Declaration of the President with animation. Mr. Rush, under date of January 6, 1824, writes : — "All the Spanish- American deputies now in London have waited upon me since its arrival, testifying the high and grateful sense they en- tertain of the service which its decisive tone in regard to Spanish- America has rendered to their respective countries." The Spanish invitation of December 26, for a congress touching her late American posses- sions, was paralyzed. The whole message, on its arrival in London, excited great attention. " It was upon all tongues ; the press was full of it; the Spanish-American deputies were overjoyed ; Spanish-American securities rose in the stock market, and the safety of the new states from all European coercion was consid- ered as no longer doubtful." The document received the approval of the calm judgment THE MONROE DOCTRINE 247 of Mr. Madison in April, 1824, in the following terms : — " I never had a doubt that your message, proclaiming the just and lofty sentiments of ten millions, soon to become twenty, enjoying in tranquil freedom the rich fruits of success- ful revolution, would be received in the pre- sent crisis of Europe with exulting sympathies by all such men as Lafayette, and with enven- omed alarm by the partisans of despotism. The example of the United States is the true antidote to the doctrines and devices of the Holy Allies ; and if continued, as we trust it will be, must regenerate the Old World, if its regeneration be possible." Its effect upon the then pending negotia- tions with Russia was so favorable that the convention of 1824 was concluded, in the spring of that year, by the withdrawal on the part of the emperor of his pretensions to ex- clusive trade and navigation on the northwest coast, and by fixing the parallel of 54° 40' as the line between the permissible establish- ments of the respective countries. Between no two governments of the civilized world was the contrast so divergent in all their political principles, traced from their foundation through all their development, as between the United States and Russia. Yet between the Ameri- can Republic and no other country has there 24S THE MONROE DOCTRINE been a longer continued or more unbroken friendship. The American diplomatist in Europe is often asked for an explanation of this fact. Perhaps the answer may be found in a remark of the late Czar to a former min- ister of the United States. Said he: "Your government and mine are the only logical gov- ernments in the world. Either the whole peo- ple, or one man, is entitled to rule." In 1823 the Holy Alliance took the despotic view, and maintained it in Europe. The government of our country took the popular view, and de- clared through the President their resolution to maintain it on this hemisphere. Each re- spected the sense of right which animated the other, and each has limited itself to its own sphere ; and more recently Russia has wholly withdrawn from this continent, with assign- ment of all her rights to this republic. Note. — In the dispute which arose in 1895 respecting the forcible extension of the British boundary into Venezuela, the British government made an important statement respecting the Monroe Declaration, in its correspondence with the Wash- ington government, which is worthy of record in this history. It is as follows : — " In declaring that the United States would resist any such interference if it was contemplated, President Monroe adopted a policy which secured the entire sympathy of the English gov- ernment of that date. . . . They [her majesty's government in 1895] fully concur with the view which President Monroe ap- parently entertained that any disturbance of the existing terri- torial distribution in that hemisphere by any fresh acquisitions on the part of any European state would be a highly inexpedi- ent change." II THE MONROE DOCTRINE IN LATER YEARS Such was the evolution of the Monroe Decla- ration. That Declaration was especially appli- cable to the international conditions then ex- isting. Its formula was more limited than' that recommended by some of the chief counsel- lors of the President. He, acting under the influence of his great responsibility and his characteristic caution, was content to satisfy the immediate demand of his time. Mr. Quincy Adams and Mr. Jefferson, with far-reaching foresight, would establish the prin- ciple in terms broad enough to embrace the probable conditions of the future. It remains to show the later expansion of the principle, and to affirm the necessity of its application to-day in the broader sense indi- cated by both Mr. Jefferson and Mr. Adams. The United States Cabinet of 1823 was alarmed by the despotic announcement of the Powers at Laybach and at Troppau. These furnished a powerful motive of its decision. The imperial coalition had proclaimed at Lay- bach that they regarded every reform effected by means of an insurrection as null, and con- ^ 250 THE MONROE DOCTRINE trary to the public law of Europe ; and that they would pursue rebellion everywhere, and under whatever form it should show itself. At Troppau they went so far as to affirm that by divine law European nations had the impre- scribable right to put themselves in open hos- tility against states which, by a change of their institutions or their government, offered a dangerous example. These principles clearly touched the life of every American republic ; and in 1823 they were forcibly applied to the suppression of the parliamentary system of the Spanish monarchy, and then threatened the independence of the Spanish-American colonies. It is quite credible that at that period only the great waste of the Atlantic waters saved the American republics from a conflict for their national life. Even this wide desert boundary did not save Mexico so late as 1864- 65 from the vital struggle between European and American political systems. Napoleon III, believing the United States, then engaged in civil war, to be disabled from a military en- forcement of the Monroe Declaration, ventured upon the fatal attempt to impose an Euro- pean system of empire upon our neighbor- ing republic of Mexico. The imperial disaster which followed will probably serve as a suffi- cient warning against any similar undertaking in the future. THE MONROE DOCTRINE 251 It may be admitted that the principles in question, as declared by Mr. Monroe, were limited to these two points : First, that no for- eign power should thereafter establish a colony within the territories of any of the de facto in- dependent states of America, meaning thereby to include all parts of both continents not at that time held as colonial possessions. Sec- ond, that no European power should attempt by force to introduce monarchical institutions into any American territory, or otherwise inter- fere to oppress the American states, or control their independent development. The French emperor's action in Mexico was a violation of the latter principle. Seiior Calvo, in his late treatise on interna- tional law, after a review of the principles of Mr. Monroe's message, of the international conditions which preceded it, and of the Con- gressional discussions which followed it, states its points touching colonization as follows: " First, that the European colonial system is inapplicable to the new situation of America, because all parts of the American continents are inhabited by civilized nations, which, in respect to their independence, and to alien sovereignty over them, have absolutely the same title as European nations. Second, that the questions of boundary between the ancient European establishments and the new Ameri- 452 THE MONROE DOCTRINE can states can only be settled according to the general principles of international law. Third, that the first occupation or first exploration creates now no longer any right of sovereignty over the American territories, whose rightful sovereignty can only result, in the future, from a treaty or from war. In this last point of view we may say that American public law is the same as that of Europe, and rests exactly upon the same basis." ^^^-"^ Europe had frankly accepted Mr. Monroe's declarations in their spirit, we should have had \ no occasion to reaffirm his principles, or to en- I large the terms of their statement. But Europe has not done so. Chili has had complaints touch- ing colonizations attempted on her extreme southern and inhospitable borders. England has asserted claims in Central America which have caused us troublesome and dangerous complications. France and Austria, at first assisted by Spain and England, have made a serious assault upon Mexico, to control her independence and to change her government They have not respected our demand for non- interference in the internal affairs of this hemi- sphere. Some of them still seek possessions here. They have forced us to vigilance. Calvo is probably right in saying that the letter of the Monroe Declaration leaves open the ques- tion of colonial acquisitions by war or by treaty. THE MONROE DOCTRINE 253 Nevertheless, beyond our own territory, our interest is exclusively with the fact of coloni- zation or acquisition, no matter by what mode or claim of right. Our interests are affected by the fact. Whether they change a sovereign jurisdiction on a part of our continent, or effect other interference, by direct war, or by the in- strumentality of a charter granted by them to their subjects, with retained power of control ; whether they act by intimidation, by force, by finesse, or by purchase, it is the resulting fact with which we have to deal. It is that which touches our interests, and changes our existing relations with the territory affected. Cannot a European nation, then, make wars or treaties with an independent American state? Certainly. But should their result in- volve consequential detriment to our national interests, or threaten our national security, public law and precedent concede to us the right to protest, and to enforce that protest by defensive action. European diplomacy is full of precedents for the right of intervention in such cases. The entire " balance-of-power " theory, whose discussions pervade the modern diplomatic history of Europe, starts from that principle. We need to go no farther to seek a precedent than in Mr. Canning's proposals to Mr. Rush for joint action against the antici- pated projects of France in 1823. These pro- 254 THE MONROE DOCTRINE jects involved no direct assault on England or the United States. They were directed exclu- sively to American territories of a third power, and threatened a change simply in an American country, which France might obtain by cession, or as indemnity for war. It is no longer for us a question of the divine right of despotism to extend its sphere of su- premacy to America, as it was in 1822-23. It is a question now of commercial control, and exclusive commercial and military advantages. Covetous eyes are cast on outlying islands and continental coasts of Central and South Amer- ica. A steamship line is preferred to an army ; a canal to a fortification ; a good harbor to a strong citadel. One far-sighted government, eager for the extension of its foreign trade and naval influence, has initiated negotiations for the transfer to it of a seemingly unimportant but really commanding tract of waste land. The weak government approached may be disposed to yield. The islands of the central, the Pacific, and the southern seas have become objects of special interest and examination to more than one of the naval and commercial powers of the Old World. At least two of the continental powers have been looking dili- gently for new colonial stations across or in the world of western waters. The unhappy and repeated dissensions and irregularities of THE MONROE DOCTRINE 255 the Central and South American states furnish too many occasions for European interference and claims of indemnity. Their resulting finan- cial condition offers too strong temptation to relieve embarrassments by the expropriation of territorial rights and privileges. It is easy to find occasion for a naval war, if any European power desires a pretext for the seizure of a port or a territory. The recognized doctrine of a war indemnity stands in aid of the acquis- itive purpose. To establish a colonial depend- ency in America by treaty, or as a result of war, — these alternatives, according to Sefior Calvo, remain to the European nations with- out violating the principle of the Monroe De- claration. Europe would be misled by the acceptance of that view, and still more deceived by ac- cepting it as indicating the principles distinctly held on this subject by the United States dur- ing the last fifty years. "^^-^ The original Declaration was limited, in words, by the circumstances of that epoch. The reasons upon which it was founded pro- vided room for a further development and ex- tension of the declaration. This government has from time to time indicated this develop- ment, and shown its desire to preserve always toward the ambitious commercial powers of Europe an attitude of candor and dignity, white . 256 THE MONROE DOCTRINE defending its own rights and interests. There was no display of mere sentiment against mon- archical institutions in America. On the con- trary, our government recognized the imperial establishment of Iturbide in Mexico, and Dom Pedro in Brazil, because both were by choice of the people, and were home powers. Indeed, the Brazilian diplomatic agent told Mr. Adams that the Brazilian emperor was more republi- can than the people whom he ruled. On the other hand, we have always claimed that it was our material interests which demanded the maintenance of the American principle of non- colonization and non-acquisition by Europe on the western continents. While acknowledging existing colonial rights, Mr. Adams was of opinion that " we could not see with indiffer- ence any attempt ... to transfer any portion of the ancient or present American possessions of Spain to any other European power." Mr. Rush was ready to unite with Mr. Canning in declaring that " we could not see any portion of them transferred to any other power with indifference." Mr. Jefferson advised President Monroe — facing a possible war for the prin- ciple — " to establish the American system of keeping out of our land all foreign powers; of never permitting those of Europe to inter- meddle with the affairs of our nations ; " and to oppose, " most especially, their transfer (of THE MONROE DOCTRINE 257 the Spanish-American possessions) to any power by conquest, cession, or acquisition in any other way." Our own happy condition is not, unfortu- nately, that of all our neighbors of this hemi- sphere. It will not be theirs for many years to come. Their weakness has invited, their in- ternal disorders have provoked, the acquisitive passions of several European governments. The persistent interference of the British in Nicaragua was one long vexation to that weak nation, to our government, and to our in- terests in Central America. Through it all, our government asserted the non-colonization principle. It was not settled, though earnestly desired, by the Anglo-Nicaraguan treaty of i860, which has been itself the subject of ar- bitration. In 1848, Yucatan, too weak to sup- press by her own arms the general insurrec- tion of her uncivilized Indians, appealed to England and to Spain for help. This being refused, she offered to the United States her sovereignty in exchange for the required as- sistance. Mexico claimed this sovereignty; and our government, although at war with her, refused the offer, but proposed to aid this detached state of the Mexican federation. Pre- sident Polk, in his message of December, 1845, after approving the Monroe Declaration, had said that it should be distinctly announced to 9fi THE MONROE DOCTRINE the world as our settled policy, that " no fu- ture European colony or dominion shall, with our consent, be planted or established on any part of the American continent." On this occasion, in 1848, in his message on the sub- ject of Yucatan, he further declared that "we could not consent to a transfer of this dominion and sovereignty, either to Spain, Great Britain, or any other European power; ... it would be dangerous to our peace and security if it should become a colony of any European nation." The attempt to plant an Austro-French em- pire in Mexico is so recent as to need little explanation. It was a conception of the French emperor, which he hoped to execute during our civil war, and by its success not only to obtain commercial advantages, but to discredit the republican system in America and break its prestige in Europe. It furnished an occa- sion to manifest again, and in a practical way, the adhesion of our government to the prin- ciples announced forty years previously. The representations of our government to both France and Austria were explicit, and, after the spring of 1865, very resolute in their tone toward the imperial cabinet at Paris. In fact, the French-American relations became at one time very delicate ; we had an army of obser- vation on the Mexican frontier, and the sec- THE MONROE DOCTRINE 259 end in rank of our army ofHcers was ordered to the side of President Juarez in Mexico. A direct engagement was finally made by the French government to the American for the definitive withdrawal of the French troops in a limited time. The emperor promised for the future non-interference in Mexican affairs. That sad chapter of the history of European intervention in America presents one relief of color to an otherwise melancholy picture. It informed the governments of Europe how im- possible it is for them to govern Americans, and how impracticable it is to extend their system to the New World. The attempt will not probably be repeated, except possibly for colonization in smaller territories or isolated possessions. It may be very positively affirmed that the underlying motive of the non-colonization prin- ciple was and is the danger which European dominions in America offer to our material interests, both in peace and in war. It means a flanking position, a military and naval rendez- vous in time of war, and an exclusive commer- cial position in time of peace. It invites the extension of purely European wars to Ameri- can coasts and territories. Rights of commerce and navigation, often questioned, are referred to a distant government for settlement. Such questions, arising on one continent and re- 26a THE MONROE DOCTRINE ferred to another and distant continent for ad- justment, always find the European tribunal of appeal to be dilatory, slowly informed, and hesitating in action. Justice, halting and reluc- tant, moves with slow steps across the seas. It was largely, if not chiefly, to avoid these dangers that President Adams advised the par- ticipation of the United States in the Panama Congress. In his message of March, 1826, speaking of the advantages we derived from independent American states, he says : " The United States enjoy the right of commercial intercourse with every part of their possessions. To attempt the establishment of a colony in those possessions would be to usurp, to the exclusion of others, a commercial intercourse which was the common possession of all. It could not be done without encroaching upon existing rights of the United States." He fur- ther declares that among the subjects of con- sultation proposed at Panama was " the means of making effectual the assertion of that prin- ciple ; " and he looked for mutual pledges, each nation for itself, " to permit no colonial lodg- ment, or establishment of European jurisdic- tion, upon its own soil." That policy had been urged also upon Mexico, in a separate corre- spondence conducted by Mr. Clay as Secretary of State. It was adopted by the four states represented at Panama. THE MONROE DOCTRINE 261 The continuity and uniformity of our ra- tional adherence to the Monroe Doctrine, irrespective of political parties, and the inter- national publicity of our adherence to it, are fully shown by reference to the public messages of successive presidents addressed to the Na- tional Congress. President Polk in his first annual message (1845) alludes to the fact that in some of the countries of Europe it had been proposed to extend the doctrine of the " Balance of Power " to this continent, in order to check the rapidly growing preponderance of the United States. He adds this warning : . . . " The United States, sincerely desirous of preserving relations of good understanding with all nations, cannot in silence permit any European interference on the North American continent ; and should any such interference be attempted will be ready to resist it at any and all hazards." Again, in his message of 1847 he says the Monroe principle that " no foreign power may with our consent be permitted to plant or estab- lish any new colony or dominion in any part of the North American continent must be maintained." In a special message (1847) relating to Yuca- tan he reaffirms the Monroe principle, and declares that "we could not consent to a trans- fer of this dominion and sovereignty either to 262 THE MONROE DOCTRINE Spain, Great Britain, or any other European power." President Buchanan, in his second annual message (1858), while discussing the disordered condition of Mexico, says : " It is a duty which we owe to ourselves to protect the integrity of its territory against the hostile interference of any other power. Our geographical position, our direct interest in all that concerns Mexico, and our well-settled policy in regard to the North American continent render this an in- dispensable duty." Again, in i860, he admits the obligation of resisting, "even by force should this become necessary, any attempt by those [European] governments to deprive our neighboring republic of portions of her terri- tory, — a duty from which we could not shrink without abandoning the traditional and estab- lished policy of the American people." President Grant, in a special message to Congress (1870), confirmed and even extended the principle of 1823. " The doctrine promul- gated by President Monroe has been adhered to by all political parties ; and I now deem it proper to assert the equally important princi- ple that hereafter no territory on this continent shall be regarded as subject to transfer to a European power." In a special message (i 871) he declared his opinion " that we should not permit any inde- THE MONROE DOCTRINE 263 pendent government within the limits of North America to pass from the condition of inde- pendence to one of ownership or protection under a European power." In his annual message of 1895 President Cleveland advised Congress that in July of that year a communication had been sent by our government to London for the information of the British government in respect to its bound- ary dispute with Venezuela. The purport of that despatch he defined as follows : " The general conclusions therein reached and for- mulated are in substance that the traditional and established policy of this government is firmly opposed to a forcible increase by any European power of its territorial possessions on this continent ; . . . that the United States is bound to protest against the enlargement of the area of British Guiana in derogation of the rights and against the will of Venezuela." And an explicit answer was desired to the ques- tion whether England will submit her claim to that territory to a free arbitration. The British government denied the appli- cability of the Monroe Declaration to the Venezuelan boundary question. The Presi- dent sent a special message to Congress in December 1895, in which he maintained that it was so applicable. " If a European power by an extension of its boundary takes posses- 264 THE MONROE DOCTRINE sion of the territory of one of our neighboring republics against its will and in derogation of its rights, it is difficult to see why to that ex- tent such European power does not thereby attempt to extend its system of government to that portion of this continent which is thus taken. This is the precise action which Presi- dent Monroe declared to be dangerous to our peace and safety. It can make no difference whether the European system is extended by an advance of frontiers or otherwise." The United States delegates to The Hague Conference of 1899 added a signatory declara- tion and notice to all the powers there repre- sented as follows : — " Nothing contained in this convention shall be so construed as to require the United States of America to depart from its tradi- tional policy of not intruding upon, interfering with, or entangling itself in the political ques- tions or policy or internal administration of any foreign state ; nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of Amer- ica of its traditional attitude toward purely American questions." Although the lucidity of this declaration might have been improved, its meaning was well understood by the international assem- bly ; and it is well worthy of remembrance as THE MONROE DOCTRINE 265 the first formal and direct notice of our atti- tude on the Monroe Doctrine to an assembly of the civilized governments of the world. As such it was quoted and indorsed by President McKinley in his annual message of 1899. President Roosevelt in his annual message of 1 90 1 observed that the Peace Conference at The Hague " acquiesced in our statement of the Monroe Doctrine as compatible with the purposes and aims of the conference." He says also, " The Monroe Doctrine should be the cardinal feature of the foreign policy of all the nations of the two Americas, as it is of the United States." Just seventy-eight years have passed since President Monroe in his annual message announced that " the American con- tinents are henceforth not to be considered as subjects for future colonization by any Eu- ropean power." In other words, the MonroeN Doctrine is a declaration that there must be / no territorial aggrandizement by any non- American power at the expense of any Ameri- can power on American soil. It is in no wise intended as hostile to any nation in the Old World. Still less is it intended to give cover to any aggression by one New World power at the expense of any other. It is simply a step, and a long step, toward assuring the universal peace of the world by securing the possibility of permanent peace on this hemisphere. 'J 266 THE MONROE DOCTRINE " During the past century other influences have established the permanence and inde- pendence of the smaller states of Europe. Through the Monroe Doctrine we hope to be able to safeguard like independence and secure like permanence for the lesser among the New World nations. . . . We do not ask under this doctrine for any exclusive commercial dealings with any other American state. We do not guarantee any state against punishment if it misconducts itself, provided that punishment does not take form of the acquisition of ter- ritory by any non-American power. . . . Our people intend to abide by the Monroe Doc- trine and to insist upon it as the one sure means of securing the peace of the western hemisphere." It should be noted for remembrance in this connection that in 1902, before Great Britain and Germany sent their fleets to coerce Vene- zuela into a redress of grievances, both these great powers gave formal assurances to the United States government that there was no intention on their part to violate the principles of the Monroe Doctrine. y/Dut, leaving the domain of authority and /precedent, let us examine the Doctrine upon I the grounds of reason. What argument exists, on our part, to sup- port an objection to Central or South Ameri- f / THE MONROE DOCTRINE 267 can colonization by Europe under claim of " prior discovery," which does not equally mili- tate against colonization effected by war, or secured by a cession of territory? Our own territorial rights being untouched, in what way are we more injured by the former than by the latter ? In either case it excludes or constrains our commercial interests as secured by exist- ing treaties. In either case it creates for us a new and possibly dangerous neighbor, and new relations. If secured by one of the naval powers, it exposes us to a new military danger. If accomplished by a great power, it compels the increase of our own military or naval pre- parations to preserve our equality in the event of war. If near our great lines of commerce, it becomes a standing menace to our commercial relations. It touches every national interest. It is self-evident that we could not regard such an establishment, in whatever way of peace or war effected, " with indifference," as the diplo- matists put it. It would, and it ought to, cause serious inquietude to our government. Need we recall again the Nicaraguan dispute, which brought us to the verge of war ? Do we not remember the squadron despatched to the An- tilles by the British government, when they believed France was seeking to acquire Cuba by cession, and Mr. Canning's protest against that cession? Vet that could affect England 268 THE MONROE DOCTRINE in no sense equal to the effect upon us of the acquisition by a great European power of Cuba, or of any other strong position, insular or continental, commanding either side of Cen- tral America, or the chief lines of our com- mercial routes along this or the southern continent. In another respect any new European ac- quisition on this continent would touch very seriously our important interests. Delegated authority, exercised across distant seas, is the occasion of frequent misunderstandings and commercial embarrassments. The reparation or remedy is referred to a distant government, and is tediously obtained, if obtained at all. A supreme government in immediate contact obviates this danger of disturbance to com- merce and to amicable relations. Canada and Cuba have repeatedly illustrated, and amply, the justice of this ground of objection to fur- ther colonial establishments in this hemisphere. It is not long since one of these questions in connection with Cuba cost us four millions in naval preparations to secure justice for wrongs there perpetrated. Either great or petty causes of irritation are continually arising with the colonial dominions on the north of us. Their semi-independent condition encourages a free- dom of action sometimes in conflict with our rights and interests, but without the authority, THE MONROE DOCTRINE 269 however willingly disposed, to assure us relief or remedy by treaty. Our future relations with this dominion will cause — already cause — anxiety to thoughtful American statesmanship, from which there now appears no certain issue, except in its independence. Our increasing settlements and interests on the Northern Pa- cific coast bring British Columbia still more forcibly within the scope of these considera- tions. The European critics of the Monroe Doc- trine say that it is not recognized as a part of the code of international law, and does not therefore bind other nations, and is not enti- tled to observance by them. Was the doctrine of the " Balance of Power " a part of that code ? Was it declared in that code that Russia should not seize Constantinople.? or that France should not seize and appropriate to her own trade the great ports of China ? Would Ger- many for that reason permit France or Eng- land to take permanent possession of the port of Rotterdam or of Antwerp? or acquire a strong military or naval position on the coast of Denmark.? Would the European powers quietly permit the United States, because of the silence of the international code on the subject, to acquire Sicily, and establish a repub- lican dependent government there ? " Spheres of influence" are not recognized by interna- 270 THE MONROE DOCTRINE tional law, but they are respected by the com- mon sense of nations ; and this recognition promotes the peace of the world. We must maintain the Doctrine, not merely the Declaration, of President Monroe's admin- istration, in the light of later experience and of wider development of interests. The time is most favorable. Our foreign relations are uni- versally amicable. Our domestic prosperity and contentment free the government from anxious interior cares. Our finances are well ordered and satisfactory. We can freely turn our eyes abroad, not for aggressive action, but for peaceful and secure development. We can tranquilly determine our policy upon the ques- tions under review, and inquire whether we ought not to advance from the earlier Declara- tion, made by the President eighty years ago, when we had no commercial Pacific coast, to a position and to action more appropriate to our present condition and interests, and to the ambitions of other governments. For our own territory, or for our political system — defended by eighty millions of people devoted to it, and ready to spring to arms for its defence — we fear nothing. The sentiment of monarchy toward popular republics has radically changed. Lib- erty has advanced eastward with long strides, while despotism has receded to the bor- ders of Asia. History, authority, reason, and THE MONROE DOCTRINE 271 existing conditions amply justify the formal declaration of the principle foreshadowed by Mr. Monroe's advisers. The United States could not witness with indifference the estab- lishment on these American continents, or on any island of their borders, of any new Eu- ropean military or naval position, in whatever way acquired ; nor of any new colony, under European jurisdiction ; nor the transfer to any other European naval power of any existing American colonial dependency. It is not necessary to disclose here all the reasons which urge us to the early and reso- lute adoption of this principle, and to the preparation of all needful means for its enforce- ment. If not now formulated and declared, it should be accepted by our statesmen, not as a topic for academical discussion or wild oratory, but as a basis for firm and decisive action, and in full view of its possible consequences. We have not failed to observe in the history of British- American relations a singular alterna- tion of equitable and aggressive dispositions toward the United States — the latter, unfor- tunately, manifested in times of our trouble or weakness. Germany and France are strong rival commercial and aggressive powers. Both have sought outlying positions of future ad- vantage for commercial and military purposes. He is greatly mistaken who supposes that the 272 THE MONROE DOCTRINE rejection of the imperial dynasty by France has changed in this respect the spirit of the French governing classes. The sentiment which still dominates there is love of glory, and glory in foreign acquisitions : witness her persistent campaigns in Africa. The French nation has no permanent alliances : witness the discordant clamor for friendship to-day with England, yes- terday with Austria, now with Russia, then with Italy, or with the Sultan. Her friendships re- main so long as they are tributary to her inter- ests or to her glory. The simple fact of her adoption of republican institutions has in no way changed her policy of territorial and com- mercial extension and acquisition. While Amer- ica ardently desires the continuance of the present amicable relations with all these coun- tries, yet, reviewing the last fifty years, we realize the dangers of a changed policy arising from a change of monarchs or of ministries. Our American Republic has never cast a covetous eye upon any part of European terri- tory, or of the neighboring African continent, nor upon any island off their coasts. Its policy has never in the course of its history in- dicated any desire to interfere with the terri- torial distribution of Europe, or with its forms of government, or with the internal affairs of its various nations. On the contrary, we have repeatedly affirmed our policy of absolute non- THE MONROE DOCTRINE 273 interference and non-acquisition of European or African territory. Even the vast discoveries of Central Africa, made by Stanley under the American flag, did not tempt the Republic to swerve from her principle of non-acquisition of transatlantic domains. In return, America de- mands the like non-intervention by European powers in the affairs of the American conti- nents, and the like non-acquisition of American territorial or insular possessions. This recipro- cal policy will not only contribute to the mutual prosperity of nations, but tend strongly to the preservation of international peace, which is now the common aspiration of all Christian nations. BUctroty^d and printed -By H. O. Houghton A» Co. C»mbrid£*, Matt., U.S.A. 4/u*t 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below» or on the date to which renewed. Renewed books are subjea to immediate recall. ^tlar'632T r-'-.^'n l_D ,«- r^ « lor*^ t F R 1 f; 'H' 1.1 LD 21A-60m-ll/62 (D32798lO)476B General Library University of California Berkeley J YB 08167 ■^* ',U-.t»i;M LUOJH J W ^ I ^ A> ^^. UNIVERSITY OF CALIFORNIA IvIBRARY .,^