Let us turn to the proof on which rests their t.i.tle to this distinction.

FOOTNOTES:

[64] Rhode Island was never represented in the Convention, and the delegation of New Hampshire had not yet attended.

[65] In all these statements of the relative rank of the States, I compare the census of 1790 and that of 1850.

[66] The two great exceptions of course were Hamilton and Jay.

[67] See the candid and moderate letter of Messrs. Yates and Lansing to the legislature of the State, giving their reasons for not signing the Const.i.tution. (Elliot, I. 480.)

[68] In the New Jersey plan, which the New York gentlemen (Hamilton excepted) supported, although the power to levy duties and the regulation of commerce were to be added to the existing powers of the old Congress, yet as these powers were to be exerted against the States, in the last resort, by force, it would only have been necessary for a State to place itself in an att.i.tude of resistance, by a public act, and then the grant of power might have been considered to be revoked by the very act of resisting its execution.

[69] Three of the delegates of the State, James McHenry, Daniel of St.

Thomas Jenifer, and Daniel Carroll, signed the Const.i.tution.

[70] Yates's Minutes, Elliot, I. 433.

[71] Dr. Johnson of Connecticut.

[72] Mr. Hallam has traced the present const.i.tution of Parliament to the sanction of a statute in the 15th of Edward II. (1322), which he says recognizes it as already standing upon a custom of some length of time. Const. History, I. 5.

[73] Mr. Hallam does not concur in what he says has been a prevailing opinion, that Parliament was not divided into two houses at the first admission of the commons. That they did not sit in separate chambers proves nothing; for one body may have sat at the end of Westminster Hall, and the other at the opposite end. But he thinks that they were never intermingled in voting; and, in proof of this, he adduces the fact that their early grants to the King were separate, and imply distinct grantors, who did not intermeddle with each others'

proceedings. He further shows, that in the 11th Edward I. the commons sat in one place and the lords in another; and that in the 8th Edward II. the commons presented a separate pet.i.tion or complaint to the King, and the same thing occurred in 1 Edward III. He infers from the rolls of Parliament, that the houses were divided as they are at present in the 8th, 9th and 19th Edward II. (See the very valuable Chapter VIII., on the English Const.i.tution, in Hallam's Middle Ages, III. 342.)

[74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853.

[75] Connecticut upon this question voted with the majority.

[76] Madison, Elliot, V. 240.

[77] June 28.

[78] Madison, Elliot, V. 256.

[79] Madison, Elliot, V. 258.

[80] It was made at this stage by Dr. Johnson.

[81] The States opposed to an equality of suffrage in the first branch were Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia, 6; those in favor of it were Connecticut, New York, New Jersey, and Delaware. The vote of Maryland was divided.

[82] Mr. Baldwin of Georgia suggested this model.

[83] David Brearly.

[84] New York and New Jersey.

[85] The question was put upon Ellsworth's motion to allow the States an equal representation in the Senate. The vote stood, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_. 5; Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided. The person who divided the vote of Georgia, and thus prevented a decision which must have resulted in a disruption of the Convention, was Abraham Baldwin. We have no account of the motives with which he cast this vote, except an obscure suggestion by Luther Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a very wise and a very able man. He was not in favor of Ellsworth's proposition, but he probably saw the consequences of forcing the minority States to the alternatives of receiving what they regarded as an unjust and unsafe system, or of quitting the Union. By dividing the vote of his State he prevented this issue, although he also made it probable that the Convention must be dissolved without the adoption of any plan whatever.

CHAPTER VII.

FIRST GRAND COMPROMISES OF THE CONSt.i.tUTION.--POPULATION OF THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE.

As the States were now exactly divided on the question whether there should be an equality of votes in the second branch of the legislature, some compromise seemed to be necessary, or the effort to make a const.i.tution must be abandoned. A conversation as to what was expedient to be done, resulted in the appointment of a committee of one member from each State, to devise and report some mode of adjusting the whole system of representation.[86]

According to the Virginia plan, as it then stood before the Convention, the right of suffrage in both branches was to be upon some equitable ratio, in proportion to the whole number of free inhabitants in each State, to which three fifths of all other persons, except Indians not paying taxes, were to be added. Nothing had been done, to fix the ratio of representation; and although the principle of popular representation had been affirmed by a majority of the Convention as to the first branch, it had been rejected as to the second by an equally divided vote of the States. The whole subject, therefore, was now sent to a committee of compromise, who held it under consideration for three days.[87]

The same struggle which had been carried on in the Convention was renewed in the committee; the one side contending for an inequality of suffrage in both branches, the other for an equality in both. Dr.

Franklin at length gave way, and proposed that the representation in the first branch should be according to a fixed ratio of the inhabitants of each State, computed according to the rule already agreed upon, and that in the second branch each State should have an equal vote. The members of the larger States reluctantly acquiesced in this arrangement; the members of the smaller States, with one or two exceptions, considered their point gained. When the report came to be made, it was found that the committee had not only agreed upon this as a compromise, but that they had made a distinction of some importance between the powers of the two branches, by confining to the first branch the power of originating all bills for raising or appropriating money and for fixing the salaries of officers of the government, and by providing that such bills should not be altered or amended in the second branch. This was intended for a concession by the smaller States to the larger.[88] The ratio of representation in the House was fixed by the committee at one member for every forty thousand inhabitants, in which three fifths of the slaves were to be computed; each State not possessing that number of inhabitants to be allowed one member. The number of senators was not designated.

This arrangement was, upon the whole, reasonable and equitable. It balanced the equal representation of the States in the Senate against the popular representation in the House, and it gave to the larger States an important influence over the appropriations of money and the levying of taxes. Nor can the admission of the slaves, in some proportion, into the rule of representation, be justly considered as an improper concession, in a system in which the separate organizations of the States were to be retained, and in which the States were to be represented in proportion to their respective populations.

The report of the committee had recommended that this plan should be taken as a whole; but as its several features were distasteful to different sections of the Convention, and almost all parties were disappointed in the result arrived at by the committee, the several parts of the plan became at once separate subjects of discussion. In the first place, the friends of a pure system of popular representation in both branches objected to the provision concerning money and appropriation bills, as being no concession on the part of the smaller States, and as a useless restriction.[89] It therefore, in their view, left in force all their objections against allowing each State an equal voice in the Senate. But it was voted to retain it in the report,[90] and the equal vote of the States in the second branch was also retained.[91]

The scale of apportionment of representatives, recommended in the report of the committee, was also objected to on various grounds. It was said that a mere representation of persons was not what the circ.u.mstances of the case required;--that property as well as persons ought to be taken into the account in order to obtain a just index of the relative rank of the States. It was also urged, that, if the system of representation were to be settled on a ratio confined to the population alone, the new States in the West would soon equal, and probably outnumber, the Atlantic States, and thus the latter would be in a minority for ever. For these reasons, the subject of apportioning the representatives was recommitted to five members,[92] who subsequently proposed a scheme, by which the first House of Representatives should consist of fifty-six members, distributed among the States upon an estimate of their present condition,[93] and authorizing the legislature, as future circ.u.mstances might require, to increase the number of representatives, and to distribute them among the States upon a compound ratio of their wealth and the numbers of their inhabitants.[94] The latter part of this proposition was adopted, but a new and different apportionment, of sixty-five members for the first meeting of the legislature, was sanctioned by a large vote of the States, after a second reference to a committee of one member from each State.[95]

These votes had been taken for the purpose of agreeing upon amendments to the original report of the compromise committee, which they would have so modified as to introduce into it, in place of a ratio of forty thousand inhabitants, including three fifths of the slaves, a fixed number of representatives for the first meeting of the legislature, distributed by estimate among the States, and for all subsequent meetings an apportionment by the legislature itself upon the combined principles of the wealth and numbers of inhabitants of the several States. But in order to understand the objections to the latter part of this proposition, and the modifications that were still to be made in it, it is necessary for us here to recur to that special interest which caused a new and most serious difficulty in the subject of representation, and which now began to be distinctly a.s.serted by those whose duty it was to provide for it. There is no part of the history of the Const.i.tution that more requires to be examined with a careful attention to facts, with an unprejudiced consideration of the purposes and motives of those who became the agents of its great compromises and compacts between sovereign States, and with an impartial survey of the difficulties with which they had to contend.

Twice had the Convention affirmed the propriety of counting the slaves, if the States were to be represented according to the numbers of their inhabitants; and on the part of the slaveholding States there had hitherto been no dissatisfaction manifested with the old proportion of three fifths, originally proposed under the Confederation as a rule for including them in the basis of taxable property. But the idea was now advanced, that numbers of inhabitants were not a sufficient measure of the wealth of a State, and that, in adjusting a system of representation between such States as those of the American Union, regard should be had to their relative wealth, since those which were to be the most heavily taxed ought to have a proportionate influence in the government. Hence the plan of combining numbers and wealth in the rule. This was mainly an expedient to prevent the balance of power from pa.s.sing to the Western from the Atlantic States.[96] It was supposed that the former might in progress of time have the larger amount of population; but that, as the latter would at the commencement of the government have the power in their own hands, they might deal out the right of representation to new States in such proportions as would be most for their own interests. Still there were grave objections to this combined rule of numbers and wealth as applied to the slaveholding States. In the first place, it was extremely vague; it left the question wholly undetermined whether the slaves were to be regarded as persons or as property, and therefore left that question to be settled by the legislature at every revision of the system. Moreover, although this rule might enable the Atlantic States to retain the predominating influence in the government as against the Western interests, it might also enable the Northern to retain the control as against the Southern States, after the former had lost and the latter had gained a majority of population. The proposed conjectural apportionment of members for the first Congress would give thirty-six members to the States that held few or no slaves, and twenty-nine to the States that held many.

Mason and Randolph, who represented in a candid manner the objections which Virginia must entertain to such a scheme, did not deny, that, according to the present population of the States, the Northern part had a right to preponderate; but they said that this might not always be the case; and yet that the power might be retained unjustly, if the proportion on which future apportionments were to be made by the legislature were not ascertained by a definite rule, and peremptorily fixed by the Const.i.tution. Gouverneur Morris, who strenuously maintained the necessity for guarding the interests of the Atlantic against those of the Western States, insisted that the combined principles of numbers and wealth gave a sufficient rule for the legislature; that it was a rule which they could execute; and that it would avoid the necessity of a distinct and special admission of the slaves into the census,--an idea which he was sure the people of Pennsylvania would reject. Mr. Madison argued, forcibly, that unfavorable distinctions against the new States that might be formed in the West would be both unjust and impolitic. He thought that their future contributions to the treasury had been much underrated; that the extent and fertility of the Western soil would create a vast agricultural interest; and that, whether the imposts on the foreign supplies which they would require were levied at the mouth of the Mississippi or in the Atlantic ports, their trade would certainly advance with their population, and would ent.i.tle them to a rule which should a.s.sume numbers to be a fair index of wealth.

The arguments against the combined principles of numbers and wealth, as a mere general direction to the legislature, and against their joint operation upon the contrasted interests of the Western and the Atlantic States, appear to have prevailed with some of the more prominent of the Northern members.[97] Accordingly, when a counter proposition was brought forward by Williamson,[98]--which contemplated a return to the principle of numbers alone, and was intended to provide for a periodical census of the free white inhabitants and of three fifths of all other persons, and that the representation should be regulated accordingly,--six States on a division of the question voted for a census of the free inhabitants, and four States recorded their votes against it.[99] This result brought the Convention to a direct vote upon the naked question whether the slaves should be included as persons, and in the proportion of three fifths, in the census for the future apportionment of representatives among the States.

Ma.s.sachusetts and Pennsylvania now, for the first time, separated themselves from Virginia. It was perceived that a system of representation by numbers would draw after it the necessity for an admission of the slaves into the enumeration, unless it were confined to the free inhabitants. On the one hand, the delegates of these two States had to look to the probable encouragement of the slave-trade, that would follow an admission of the blacks into the representation, and to the probable refusal of their const.i.tuents to sanction such an admission. On the other hand, they had to encounter the difficulty of arranging a just rule of popular representation between States which would have no slaves, or very few, and States which would have great numbers of persons in that condition, without giving to the latter cla.s.s of States some weight in the government proportioned to the magnitude of their populations. But they would not directly admit the naked principle that a slave is to be placed in the same category with a freeman for the purpose of representation, when he has no voice in the appointment of the representative; and the proposition was rejected by their votes and those of four other States.[100] Thereupon the whole subst.i.tute of Mr. Williamson, which contemplated numerical representation in the place of the combined rule of numbers and wealth, was unanimously rejected.

The report of the committee of compromise still stood, therefore, but modified into the proposition of a fixed number for the first House of Representatives, and a rule to be compounded of the numbers and wealth of the States, to be applied by the legislature in adjusting the representation in future houses. A difficulty, apparently insuperable, had defeated the application of the simple and--as it might otherwise appropriately be called--the natural rule of numerical representation.

The social and political condition of the slave, so totally unlike that of the freeman, presented a problem hitherto unknown in the voluntary construction of representative government. It was certainly true, that, by the law of the community in which he was found, and by his normal condition, he could have no voice in legislation. It was equally true, that he was no party to the establishment of any State const.i.tution; that n.o.body proposed to make him a party to the Const.i.tution of the United States, to confer upon him any rights or privileges under it, or to give to the Union any power to affect or influence his _status_ in a single particular. It was true also, that the condition in which he was held was looked upon with strong disapprobation and dislike by the people of several of the States, and it was not denied by some of the wisest and best of the Southern statesmen that it was a political and social evil.

Still, there were more than half a million of these people of the African race, distributed among five of the States, performing their labor, const.i.tuting their peasantry, and--if the numbers of laborers in a community form any just index of its wealth and importance--forming in each of those States a most important element in its relative magnitude and weight. It should be recollected, that the problem before the framers of the Const.i.tution was, not how to create a system of representation for a single community possessing in all its parts the same social inst.i.tutions, but how to create a system in which different communities of mere freemen and other different communities of freemen and slaves could be represented, in a limited government inst.i.tuted for certain special objects, with a proper regard to the respective rights and interests of those communities, and to the magnitude of the stake which they would respectively have in the legislation by which all were to be affected.[101]

It does not appear, from any records of the discussions that have come down to us, in what way it was supposed the combined rule of numbers and wealth could be applied. If its application were left to Congress, in adjusting the system with reference to slaveholding States, the slaves must be counted as persons or as property; and as the proposed rule did not determine which, they might be treated as persons in one census, and as property in the next, and so on interchangeably. The suggestion of the principle, however, which seemed to be a just one, and which grew out of the conflicting opinions entertained upon the question whether numbers of inhabitants are alone a just index of the wealth of a community, brought into view a very important doctrine, that had long been familiar to the American people; namely, that the right of representation ought to be conceded to every community on which a tax is to be imposed; or, as one of the maxims of the Revolutionary period expressed it, that "taxation and representation ought to go together." This doctrine was really applicable to the case, and capable of furnishing a principle that would alleviate the difficulty; for if it could be agreed that, in levying taxes upon a slaveholding State, the wealth that consisted in slaves should be included, the maxim itself demonstrated the propriety of giving as large a proportion of representation as the proportion of tax imposed; and if, in order to ascertain the representative right of the State, the slaves were to be counted as persons, and, in ascertaining the tax to be paid, they were to be counted as property, they would not require to be considered in both capacities under either branch of the rule. But in order to give the maxim this application, it would be necessary to concede that the numbers of the slaves and the free persons furnished a fair index of the wealth of one State, as it was necessary to admit that the numbers of its free inhabitants furnished a fair index of the wealth of another State. If the latter were to be a.s.sumed, and the taxation imposed upon a State were regulated by its numbers of people, upon the idea that such numbers fairly represented the wealth of the community, it was proper to apply the same principle to the slaves. If this principle were applied to the slaves when ascertaining the amount of taxes to be paid, it ought equally to be applied to them in ascertaining the numbers of representatives to be allowed to the State; otherwise, the value of the slaves must be ascertained in some other way, for the purposes of taxation; the value or wealth residing in other kinds of property must be ascertained in the same mode, or under the different rule of a.s.suming numbers of inhabitants as its index; and the slaves must be excluded as persons from the representation, which they could only enhance by being treated as taxable property.

These further difficulties will appear, as we follow out the various steps taken for the purpose of applying the maxim which connects taxation with representation. The rule now under consideration, as the means of guiding the legislature in future distributions of the right of representation, was that they were to regulate it upon a ratio compounded of the wealth and numbers of inhabitants of the States.

Gouverneur Morris now proposed to add to this, as a proviso, the correlative proposition, "that direct taxation shall be in proportion to representation." This was adopted; and it made the proposed rule of numbers and wealth combined applicable both to taxation and representation.

But in truth it was as difficult to apply the combined rule of wealth and numbers to the subject of taxation, as between the States, as it was to apply it to the right of representation. This was not the first time in the history of the Union that these two subjects had been considered, and had been found to be surrounded with embarra.s.sments.

In 1776, when the Articles of Confederation were framed, it became necessary to determine the proportion in which the quotas of contribution to the general treasury should be a.s.sessed upon the States. Two obvious rules presented themselves as alternatives; either to apportion the quotas upon an estimate of the wealth of the States, or to a.s.sume that numbers of inhabitants of every condition presented a fair index of the pecuniary ability of a State to sustain public burdens. Here again, however, under either of these plans, the question would arise as to the kind of property to be regarded in the basis of the a.s.sessment. Should the slaves be treated as part of the property of a slaveholding State, either by a direct computation, or by counting them as part of the population, which was to be considered as the measure of its wealth? Mr. John Adams forcibly maintained that they ought not to be regarded as subjects of federal taxation, any more than the free laborers of the Northern States; but that numbers of inhabitants ought to be taken, indiscriminately, as the true index of the wealth of each State; and that thus the slave would stand upon the same footing with the free laborer, both being regarded as the producers of wealth, and therefore that both should add to the quota of tax or contribution to be levied upon the State.[102] Mr.

Chase,[103] on the other hand, contended that practically this rule would tax the Northern States on numbers only, while it would tax the Southern States on numbers and wealth conjointly, since the slaves were property as well as persons.

It is probable, however, that the slaveholding States would at that time have agreed to the adoption of numbers as the basis of a.s.sessment, if the Northern and Eastern States could have consented to receive the slaves into the enumeration in a smaller ratio than their whole number. But it was insisted that they should be counted equally with the free laborers of the other States; and the result of this attempt to solve a complicated and abstruse question of political economy by a theoretical rule, determining that a slave, as a producer of wealth, stands upon a precise equality with a freeman performing the same species of labor, was, that the Congress of 1776 were driven to the adoption of land as a measure of wealth, instead of the more convenient and practicable rule of numbers.[104]

But the Articles of Confederation had not been in operation for two years, when it was found that the system of obtaining supplies for the general treasury by a.s.sessing quotas upon the States according to an estimate of their relative wealth, represented by the value of their lands, was entirely impracticable; that the value of land must constantly be a source of contention and dissatisfaction between the States; and that, if the mode of defraying the expenses of the Union by requisitions were adhered to, some simpler rule must be adopted.

Accordingly, in 1783 the Congress were compelled to return to the rule of numbers; and it was in the effort to agree upon the ratio in which the slaves should enter into that rule, that the proportion of three fifths was fixed upon, as a compromise of different views, in the amendment then proposed to the Articles of Confederation.[105]

Such had been the previous experience of the Union on the subject of taxation; and now, in 1787, when an effort was to be made to establish a government upon a popular representation of the States which had found it so difficult to agree upon a just and practicable rule for determining their proportions of the public burdens, the whole subject became still further complicated with the difficulties attending the adjustment of this new right of proportional representation. The maxim which would regulate it by the same ratio that is applied to the distribution of taxes, contained within itself a just principle; but it went no farther than to a.s.sert a principle of justice, and it left the subject of the rule itself surrounded by the same difficulties as before. The Southern States complained that their slaves, if counted as property for the purposes of taxation, were to be so counted upon a ratio left wholly to the discretion of Congress; and if counted as numbers, for the same purpose, that they ought not to be reckoned in their entire number. They professed their readiness to have representation and taxation regulated by the same rule, but they insisted on the security of a definite rule, to be established in the Const.i.tution itself; and this security, they said, must embrace an admission of the slaves into the basis of representation, if they were to be included in the basis of direct taxation.[106] Accordingly, before the rule as to taxation had been determined, Randolph submitted a distinct proposition, which contemplated a census of the white inhabitants and of three fifths of all other persons, with a peremptory direction to Congress to arrange the representation accordingly.