The ninth, that a National Judiciary, consisting or one or more supreme and of inferior tribunals, be chosen by the National Legislature, composed of judges holding office during good behavior, receiving a salary not subject to increase or diminution during their term of office; that the inferior tribunals decide in first instance and the supreme tribunal in dernier ressort national and international questions, such as piracies and felonies committed on the high seas, captures made from an enemy, cases affecting foreigners or citizens of other States, the National revenue, impeachment of National officers, and, finally, "questions which may involve the national peace and harmony." The tenth, that new States be admitted to the Union formed of territory within the limits of the United States, without requiring a unanimous vote in the National Legislature. The eleventh, that a Republican government and the territory belonging to each State be guaranteed by the United States, "except in the instance of a voluntary junction of Government & territory.' The twelfth, that provision be made to continue the existing government and its obligations until "a given day after the reform of the articles of Union." The thirteenth, that provision be made for amendment of "the Articles of Union," without requiring the assent of the National Legislature. The fourteenth, that the officers of the several States be bound by oath to support" the articles of Union." The fifteenth, and last, that the amendments offered to the Confederation by the convention be, with the approbation of Congress, submitted to conventions within the several States chosen by the people "to consider & decide thereon." 1 Four It will be observed that Mr. Randolph's resolutions fall into four groups, The based upon the theory and the practice of the separation of powers to be Groups found, with more or less completeness, in every one of the constitutions of the thirteen States constituting the Confederation; that, leaving out the first resolution, to the effect that the Articles of Confederation should be corrected and enlarged in order to secure "the common defence, security of liberty, and general welfare," the second to the sixth, inclusive, deal with the legislative branch of government, the seventh and eighth with the executive department, the ninth with the judiciary (as did the ninth of the Articles of Confederation), and the remaining six with matters of a general nature, falling within the scope of the proposed government but of a general nature in the sense that no one of them belonged exclusively to any one of the three 1 Documentary History, Vol. iii, pp. 17-20. Change of branches into which the government of the more perfect Union was to be divided. With the text of the Articles of Confederation before our eyes, it would appear that, grafting these resolutions upon the Articles was very like pouring new wine into old bottles, with the result to be expected of such a process. For the strongest advocate of the Articles of Confederation would not suggest that they provided for the threefold division of government, in the sense in which each of the States had done. The Congress under the Confederation did indeed possess the power of recommending, rather than of legislating, and the right, if not the power, in all cases of executing recommendations approved by the States, or its own acts in so far as the States did not interpose. If the Congress is to be considered as an executive, it was a numerous body, not a single person. The judicial power, in so far as it was contained in the Articles, consisted of the right to create a court for the trial of piracies and felonies committed on the high seas, which was never created, of a right to create a court of appeals in cases of capture, which was indeed created, but whose decisions depended upon the mere pleasure of the States for their enforcement; and finally, a power to call into being temporary tribunals, courts or commissions for the settlement of disputes and differences between two or more States concerning boundary, jurisdiction or any other matter of a justiciable nature. It is true that the States under the Articles of Confederation renounced the exercise of certain rights, such as negotiating with foreign countries or concluding treaties of alliance with themselves, or going to war either with foreign countries or with one another, but there was apparently no power lodged in the Congress to make any of these rights effective. The Convention was called by the Congress for the sole and exclusive purpose of revising the Articles of Confederation and of rendering them more effective. A strict and literal construction of this mandate would have suggested, if it did not require, the reading of the Articles as a whole, the discussion of each one of them in detail and its adoption as amended, and a vote upon the completed instrument as a whole as thus corrected and enlarged. This was not the method proposed by the Virginian plan, and a proposition to make the Articles of Confederation the basis of discussion was rejected by the Convention, which wisely preferred, in accordance with the procedure obtaining in international conferences, to invite the presentation of projects, to make one or more of them the basis of discussion, to refer, in original or amended form, those which met with approval to a drafting committee, called by the Federal Convention the Committee of Detail, to be inserted in their proper places in the treaty or convention under amendment, or to form a separate treaty or convention if the original one. was displaced or if one did not exist. The result was also in accord with the practice of international conferences, from which, as a man well versed in their affairs has wittily said, we may expect anything except the procedure outlined in the program. It is frequently stated in works of authority that the convention should have revised the Articles as its call was limited to their revision, and that failing to do so their proceedings were revolutionary. The charge was made on more than one occasion in the convention itself, but the answer then advanced was conclusive, at least it appeared so to the members; that it was proper for the convention to submit a draft of a more perfect Union which in their opinion was calculated to effect the purposes which lay behind the call of the conference, inasmuch as the labor of their hands would only be a recommendation to the Congress, and that in any event the form of government, if approved by the Congress, would be submitted to the States for their approval or rejection and would derive all its power and effect from the approval of the States. Or, as more elegantly expressed by the illustrious Washington, in speaking of the conference, that they should "raise a standard to which the wise and the honest can repair." A Union States It will be observed that Mr. Randolph's resolutions speak of a national legislature, a national executive, a national judiciary, from which the consequence is often drawn that the framers intended to and actually did create a nation in which the States were merged and their identity lost, instead of of Free a Union of the States, the government whereof was vested with the exercise of certain sovereign powers, expressly enumerated in the Constitution or arising by necessary implication from the grant of specific powers which the States made to the Union, renouncing at the same time, in behalf of the Union, certain sovereign powers expressly enumerated or arising from necessary implication. In the course of the proceedings, to be specific on June 20th, the term "national" in its relation to the legislature was stricken upon the motion of Oliver Ellsworth, of Connecticut, substituting "government of the United States " for "national legislature." 1 But it is believed that this amendment is immaterial, inasmuch as the term "national" was used as opposed to the federal form of government then existing, and that, in the language of the period, the term "consolidated" was employed where we of today would properly use national. The framers of the Constitution were more intent upon things than words. We do not, however, need to resort to speculation, inasmuch as Mr. Madison has himself explained the sense in which the term "national" was to be understood in the Virginian resolutions. Thus, in a letter dated March 25, 1826, to Mr. Andrew Stevenson, a fellow Virginian, member of Con1 Robert Yates, Secret Proceedings and Debates of the Convention, 1821, p. 142. gress, later Speaker of that body and Minister to England, Mr. Madison said: Will you pardon me for pointing out an error of fact into which you have fallen, as others have done, by supposing that the term, national applied to the contemplated Government, in the early stage of the Convention, particularly in the propositions of Mr. Randolph, was equivalent to unlimited or consolidated. This was not the case. The term was used, not in contradistinction to a limited, but to a federal Government. As the latter operated within the extent of its authority thro' requisitions on the Confederated States, and rested on the sanction of State Legislatures, the Government to take its place, was to operate within the extent of its powers directly & coercively on individuals, and to receive the higher sanction of the people of the States. And there being no technical or appropriate denomination applicable to the new and unique System, the term national was used, with a confidence that it would not be taken in a wrong sense, especially as a right one could be readily suggested if not sufficiently implied by some of the propositions themselves. Certain it is that not more than two or three members of the Body and they rather theoretically than practically, were in favor of an unlimited Govt. founded on a consolidation of the States; and that neither Mr. Randolph, nor any one of his colleagues was of the number. His propositions. were the result of a meeting of the whole Deputation, and concurred or acquiesced in unanimously, merely as a general introduction of the business; such as might be expected from the part Virginia had in bringing about the Convention, and as might be detailed, and defined in the progress of the work. The Journal shews that this was done.1 Again he wrote, in a letter dated December 26, 1826, addressed to Thomas Cooper: With respect to the term "National" as contradistinguished from the term "federal," it was not meant to express the extent of power, but the mode of its operation, which was to be not like the power of the old Confederation operating on States; but like that of ordinary Governments operating on individuals; & the substitution of "United States" for "National" noted in the journal, was not designed to change the meaning of the latter, but to guard ag a mistake or misrepresentation of what was intended. The term National" was used in the original propositions offered on the part of the Virg. Deputies, not one of whom attached to it any other meaning than that here explained. Mr. Randolph himself the organ of the Deputation, on the occasion, was a strenuous advocate for the federal quality of limited & specified powers; & finally refused to sign the constitution because its powers were not sufficiently limited & defined.2 66 And in a letter written in December, 1831, to Mr. N. P. Trist, Mr. Madison recurred to this question and thus elaborated his views: The whole course of proceedings on those Resolutions ought to have satisfied him [one Col. Taylor, whose views Madison was combating] that the term. National as contradistinguished from Federal, was not meant to express 1 Documentary History, Vol. v, pp. 332–3. 2 Ibid., p. 339. more than that the powers to be vested in the new Govt. were to operate as in a Nat'. Govt. directly on the people, & not as in the Old Confedey, on the States only. The extent of the powers to be vested, also tho' expressed in loose terms, evidently had reference to limitations & definitions, to be made in the progress of the work, distinguishing it from a plenary & Consolidated Govt. It ought to have occurred that the Govt. of the U. S being a novelty & a compound, had no technical terms or phrases appropriate to it; and that old terms were to be used in new senses, explained by the context or by the facts of the case. Some exulting inferences have been drawn from the change noted in the Journal of the Convention, of the word National into “United States." The change may be accounted for by a desire to avoid a misconception of the former, the latter being preferred as a familiar caption. That the change could have no effect on the real character of the Govt. was & is obvious; this being necessarily deduced from the actual structure of the Govt. and the quantum of its powers.1 "Plans " The convention, it appears, met for the second time on May 29th at ten o'clock,- at least it had adjourned to that hour. Some time was taken up by the discussion of amendments to the standing rules. Mr. Randolph's address, opening "the main business," must have been an elaborate one, and his comments upon his fifteen resolutions "which he explained one by one," must have consumed much time; and the House must have been ready to adjourn at the conclusion of his remarks, for immediately thereafter it was resolved, to quote Mr. Madison's Notes, "That the House will tomorrow resolve itself into a Committee of the whole House to consider of the state of the American Union — and that the propositions moved by Mr. Randolph be referred to the said Committee." 2 It appears, however, from the entry immediately following in Mr. Madison's Notes, that "Mr. Charles Pinkney Other laid before the House the draft of a federal Government which he had prepared, to be agreed upon between the free and independent States of America." Probably due to the lateness of the hour, Mr. Pinckney contented himself with laying his plan before the convention, accompanying it with some few remarks instead of by an elaborate speech, as Mr. Madison does not give a summary of an address. It is said in The Secret Proceedings of the Federal Convention, consisting of notes made by Robert Yates, a delegate from New York, while he remained in attendance after an account of the Randolph resolutions, that "Mr. C. Pinckney, a member from South Carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed it was grounded on the same principle as of the above resolutions." 3 Mr. Pinckney's plan, of which the text is not contained in any contemporary account, was likewise referred to the Committee of the Whole, and the Convention adjourned for the day. At a later period a plan was laid before the convention by Mr. Patter- 3 Yates, Secret Proceedings, p. 97. |