But to do this by means of a negative that was to be cla.s.sed among the legislative powers of the new government, was to commit the subject of a supposed conflict between the rights and powers of the State and the national governments to an unfit arbitration. Such a question is of a judicial nature, and belongs properly to a department that has no direct interest in maintaining or enlarging the prerogatives of the government whose powers are involved in it.

But the framers of the Const.i.tution had come fresh from the inconveniences and injustice that had resulted from the unrestrained legislative powers of the States. Some of them believed it, therefore, to be necessary to make the authority of the United States paramount over the authority of each separate State; and a negative upon State legislation, to be exercised by the legislative branch of the national government, seemed to be the readiest way of accomplishing the object. Some of the suggestions of the mode in which this power was to operate strike us, at the present day, as singularly strange.

No less a person than Mr. Madison, in answer to the objections arising from the practical difficulties in subjecting all the legislation of all the States to the revision of a central power, thought at this time that something in the nature of a commission might be issued into each State, in order to give a temporary a.s.sent to laws of urgent necessity. He suggested also that the negative might be lodged in the Senate, in order to dispense with constant sessions of the more numerous branch.

But the radical objection to any plan of a negative on State legislation, as a legislative power of the general government, was, that it would not in fact dispense with the use of force against a State in the last resort. If, after the exercise of the power, the State whose obnoxious law had been prohibited should see fit to persist in its course, force must be resorted to as the only ultimate remedy. How different, how wise, was the expedient subsequently devised, when the appropriate office of the judicial power was discerned,--a power that waits calmly until the clashing authorities of the State and the nation have led to a conflict of right or duty in some individual case, and then peacefully adjudicates, in a case of private interest, the great question, with which of the two governments resides the power of prescribing the paramount rule of conduct for the citizen! Disobedience on the part of the State may, it is true, still follow after such an adjudication, and against an open array of force on the one side nothing but force remains to be employed on the other. But the great preventive of this dread necessity is found in the fact, that there has been an adjudication by a tribunal that commands the confidence of all, and in the moral influence of judicial determinations over a people accustomed to submit not only their interests, but their feelings even, to the arbitrament of juridical discussion and decision.

TABLE

EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE CENSUS OF 1790.

N. B.--In this abstract Maine is not included in Ma.s.sachusetts, nor Kentucky and Tennessee in the States from which they were severed.

+----------------+-----------+---------------+---------+-----------+ | | Whites. | Free Colored. | Slaves. | Total. | | +-----------+---------------+---------+-----------+ |New Hampshire, | 141,111 | 630 | 158 | 141,899 | |Ma.s.sachusetts, | 373,254 | 5,463 | ..... | 378,717 | |Rhode Island, | 64,689 | 3,469 | 952 | 69,110 | |Connecticut, | 232,581 | 2,801 | 2,759 | 238,141 | |New York, | 314,142 | 4,654 | 21,324 | 340,120 | |New Jersey, | 169,954 | 2,762 | 11,423 | 184,139 | |Pennsylvania, | 424,099 | 6,537 | 3,737 | 434,373 | |Delaware, | 46,310 | 3,899 | 8,887 | 59,096 | |Maryland, | 208,649 | 8,043 | 103,036 | 319,728 | |Virginia, | 442,115 | 12,765 | 293,427 | 748,307 | |North Carolina, | 288,204 | 4,975 | 100,572 | 393,751 | |South Carolina, | 140,178 | 1,801 | 107,094 | 249,073 | |Georgia, | 52,886 | 398 | 29,264 | 82,548 | | +-----------+---------------+---------+-----------+ | Aggregate, | 2,898,172 | 58,197 | 682,633 | 3,639,002 | +----------------+-----------+---------------+---------+-----------+

Total population of the eight States in 1790, in which slavery had been or has since been abolished, 1,845,595.

Total population of the five States in 1790, in which slavery existed, and still exists, 1,793,407.

FOOTNOTES:

[10] Edmund Randolph. See _ante_, Vol. I. p. 480.

[11] Ma.s.sachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, _ay_, 6; Connecticut, _no_, 1; New York divided (Colonel Hamilton _ay_, Mr. Yates _no_). Madison, Elliot, V. 132, 134.

[12] Madison, Elliot, V. 134, 135.

[13] Ibid. 135. The vote of Pennsylvania, in compliance with the wishes of Dr. Franklin, was given for a single house.

[14] Ma.s.sachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, South Carolina, _no_, 2; Connecticut and Delaware divided.

[15] See Mr. Sherman's remarks, made in committee, June 6; Madison, Elliot, V. 161.

[16] See Mr. Madison's views, as stated in his debates, Elliot, V.

161.

[17] Connecticut, New Jersey, South Carolina, _ay_, 3; Ma.s.sachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, _no_, 8.

[18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to have favored it.

[19] Madison, Elliot, V. 170.

[20] _Ante_, Vol. I. Book I. ch. I. pp. 15-17.

[21] Ma.s.sachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay,_ 7; New York, New Jersey, Delaware, _no_, 3; Maryland, divided.

[22] They contained 1,793,407 inhabitants; the other eight States had 1,845,595 when the federal census of 1790 was taken.

[23] See the census of 1790, _post_, p. 55.

[24] The population of the States was adopted in the committee of the whole, instead of their quotas of contribution, which, in one or another form, was the alternative proposition. The slaves were included, in a proportion accounted for in the text, as a part of the aggregate _population_; and it was not until a subsequent stage of the proceedings that this result was defended on the ground of their forming part of the aggregate _wealth_ of the State.

[25] _Ante_, Vol. I. Book II. ch. III. p. 213, note 2, where the origin of the proportion of three fifths is explained.

[26] By Mr. Sherman and Mr. Ellsworth.

[27] Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, Delaware, Maryland, _no_, 5. Elliot, V. 182.

[28] Madison, Elliot, V. 139.

[29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. d.i.c.kinson. On the other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler strenuously opposed this plan.

[30] Accordingly, a proposition to extend the negative on State legislation to all cases received the votes of three States only, viz.

Ma.s.sachusetts, Pennsylvania, and Virginia.

CHAPTER III.

CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.

The construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion.

The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department--vigor, despatch, and responsibility--could be found in three persons as well as in one.

Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny.

But this point connected itself with the question, whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive, was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought to be given, it was evident from the first that its necessity was well understood by the larger part of the a.s.sembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Const.i.tution, the executive would need some check against unconst.i.tutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was favored by only a very few of the members, and the proposition first adopted was to give the executive alone a revisionary check upon legislation, which should not be absolute if it were afterwards overruled by two thirds of each branch of the legislature.[31]

But inasmuch as this provision would leave the precise purposes of the check undetermined, and in order, as it would seem, to subject the whole of the legislative acts to revision and control by the executive, some of the members desired that the judiciary, or a convenient number of the judges, might be added to the executive as a council of revision. Among these persons were Mr. Madison and Mr.

Wilson. The former expressed a very decided opinion, that, whether the object of a revisionary power was to restrain the encroachments of the legislature on the other departments, or on the rights of the people at large, or to prevent the pa.s.sage of laws unwise in principle or incorrect in form, there would be great utility in annexing the wisdom and weight of the judiciary to the executive. But this proposition was rejected by a large majority of the States, and the power was left by the committee as it had been settled by their former decision. These proceedings, however, do not furnish any decisive evidence of the nature and purpose of the revisionary check.

But before this feature of the Const.i.tution had been settled by the committee, they had determined on a mode in which the executive should be appointed. It is singular that the idea of an election of the executive by the people, either mediately or immediately, found so little favor at first, that on its first introduction it received the votes of but two States. Since the executive was to be the agent of the legislative will, it was argued by some members that it ought to be wholly dependent, and ought therefore to be chosen by the legislature. The experience of New York and of Ma.s.sachusetts, on the other hand,--where the election of the first magistrate by the people had been successfully practised,--and the danger that the legislature and the candidates might play into each other's hands, and thus give rise to constant intrigues for the office, were the arguments employed by others. Upon the introduction of a proposition that the States be divided into districts, for the election by the people of electors of the executive, two States only recorded their votes in its favor, and eight States voted against it.[32] By the vote of eight States it was then determined that the executive should be elected by the national legislature for the term of seven years;[33] and subsequently it was determined that the executive should be ineligible to a second term of office, and should be removable on impeachment and conviction of malpractice or neglect of duty. A single executive was agreed to by a vote of seven States against three.[34] After the mode in which the negative was to be exercised had been settled, an attempt was made to change the appointment, and vest it in the executives of the States.

But this proposal was decisively rejected.[35]

The judiciary was the next department of the proposed plan of government that remained to be provided. Like the executive, it was a branch of sovereign power unknown to the Confederation. The most palpable defect of that government, as I have more than once had occasion to observe, was the entire want of sanction to its laws. It had no judicial system of its own for decree and execution against individuals. All its legislation, both in nature and form, prescribed duties to States. The observance of these duties could only be enforced against the parties on whom they rested, and this could be done only by military power. But it was the peculiar and anomalous situation of the American Confederacy, that the power to employ force against its delinquent members had not been expressly delegated to it by the Articles of Union; and that it could not be implied from the general purposes and provisions of that instrument, without a seeming infraction of the article by which the States had reserved to themselves every power, jurisdiction, and right not "expressly"

delegated to the United States. If this objection was well founded,--and it was universally held to be so,--we may well concur in the remark of The Federalist, that "the United States presented the extraordinary spectacle of a government dest.i.tute even of the shadow of const.i.tutional power to enforce the execution of its own laws."[36]

The Confederation, too, had found it to be entirely impracticable to rely on the tribunals of the States for the execution of its laws.

Such a reliance in a confederated government presupposes that the party guilty of an infraction of the laws or ordinances of the confederacy will try, condemn, and punish itself. The whole history of our Confederation evinces the futility of laws requiring the obedience of States, and proceeding upon the expectation that they will enforce that obedience upon themselves.

The necessity for a judicial department in the general government was, therefore, one of the most prominent of those "exigencies of the Union," for which it was the object of the present undertaking to provide. The place which that department was to occupy in a national system could be clearly deduced from the office of the judiciary in all systems of const.i.tutional government. That office is to apply to the subjects of the government the penalties inflicted by the legislative power for disobedience of the laws. Disobedience of the lawful commands of a government may be punished or prevented in two modes. It may be done by the application of military power, without adjudication; or it may be done through the agency of a tribunal, which adjudicates, ascertains the guilty parties, and applies to them the coercion of the civil power. This last is the peculiar function of a judiciary; and in order that it may be discharged effectually, the judiciary that is to perform this office must be a part of the government whose laws it is to enforce. It is essential to the supremacy of a government, that it should adjudicate on its own powers, and enforce its own laws; for if it devolves this prerogative on another and subordinate authority, the final sanction of its laws can only be by a resort to military power directed against those who have refused to obey its lawful commands.

One of the leading objects in forming the Const.i.tution was to obtain for the United States the means of coercion, without a resort to force against the people of the States collectively. Mr. Madison, at a very early period in the deliberations of the Convention, declared that the use of force against a State would be more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.[37] At his suggestion, a clause in Governor Randolph's plan authorizing the use of force against a delinquent member of the confederacy was laid aside, in order that a system might be framed which would render it unnecessary. This could be done only by making the authority of the government supreme in relation to the rights and powers that might be committed to it; and it could be made so only by applying its legislation to individuals through the intervention of a judiciary. A confederacy whose legislative power operates only upon States, or upon ma.s.ses of people in a collective capacity, can be supreme only so far as it can employ superior force; and when the issue that is to determine the question of supremacy is once made up in that form, there is an actual civil war.

The introduction, therefore, of a judicial department into the new plan of government, of itself evinces an intention to clothe that government with powers that could be executed peacefully, and without the necessity of putting down the organized opposition of subordinate communities. By their resort to this great instrumentality, we may perceive how much, in this particular, the framers of the Const.i.tution were aided by the spirit and forms of the inst.i.tutions which the people of these States had already framed for their separate governments. The common law, which the founders of all these States had brought with them to this country, had accustomed them to regard the judiciary as clothed with functions in which two important objects were embraced. By the known course of that jurisprudence the judiciary is, in the first place, the department which declares the construction of the laws; and, in the second place, when that department has announced the construction of a law, it is not only the particular case that is settled, but the rule is promulgated that is to determine all future cases of the same kind arising under the same law. Thus the judiciary, in governments whose adjudications proceed upon the course of the common law, becomes not merely the arbitrator in a particular controversy, but the department through which the government interprets the rule of action prescribed by the legislature, and by which all its citizens are to be guided. This office of the judicial department had long been known in all the States of the Union at the time of the formation of the national Const.i.tution.