National son of New Jersey, and called indifferently the Patterson or the New Jersey plan. This proposed a revision of the Articles of Confederation in accordance with the recommendation of Congress, but it did not meet with favor and was, after discussion and debate, rejected in favor of Mr. Randolph's resolutions, although, as will appear, it had a decided influence on the course of proceedings, and was referred, with the Randolph resolutions, as amended and enlarged, and with Mr. Pinckney's plan, to the Committee of Detail to prepare a draft of the Constitution. These were the only plans laid before the convention at any time, although Alexander Hamilton felt called upon, as did Mr. Pinckney, to express his personal views to the convention. They were, in the language of the day, "high toned," that is to say, they looked to a consolidated form of government, consisting of a threefold distribution of powers, in which the States were allowed to exist but reduced practically to the level of provinces, in which the executive was to hold office during good behavior, and, among other powers, was to appoint governors of the States, to hold office during his pleasure. This project fell flat, meeting, as far as known, only with the approval of George Read of Delaware, and its distinguished author did not feel encouraged to present a draft of a constitution in accordance with his views, although he did hand one to Mr. Madison at a much later period before the adjournment of the Convention. It was not laid before the Committee of Detail and, so far as known, Mr. Hamilton's views had no influence with that committee or in the convention, although his influence later brought about the ratification of the Constitution by the State of New York.1 To secure this object and to turn the tide of public opinion in favor of the Constitution, he proposed and, with the large cooperation of James Madi- son and some help from Mr. Jay, wrote and published in the press a series of some eighty-six articles which, known in their collected form as The Federalist, are universally regarded as the classic exposition of the Constitution. Before passing to a consideration of the main subdivisions of Mr. Randolph's resolutions, it is advisable to call attention to Mr. Madison's distinction between a national government, on the one hand, operating upon individuals, and a purely federal government on the other hand, operating upon States, a distinction which arose early in the course of debate. It did not appear clearly in the text of Mr. Randolph's resolutions, although it may have been in the minds of the Virginia members who stood sponsor for the plan. In any event, the national legislature was empowered by the sixth reso 1 In his Memoirs, under date of November 19, 1818, John Quincy Adams records Major William Jackson, of Philadelphia, who had called upon him, as saying, "He told me how he had been chosen Secretary to the Convention .. and said that by far the most efficient member of the Convention was Mr. Madison; that Mr. Hamilton took no active part in it. and made only one remarkable speech." The Records of the Federal Convention, Max Farrand, Editor. Vol. III (1911), p. 426. Coercion of lution "to call forth the force of the Union agt. any member of the Union failing to fulfil its duty under the articles thereof." 1 On the very next day Mr. Mason observed, as reported by Mr. Madison, "that the present confederation was not only deficient in not providing for coercion & punishment agt. delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it." 2 The day following, States when this clause of the sixth resolution came up for consideration, Mr. Madison himself observed, as stated in his Notes, " that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually.- A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look 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. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed," a motion which was "agreed to nem. con." 3 3 There was no opposition to the general plan, as the States were familiar with the threefold division of power and their delegates were apparently willing to provide the Union with a government of this kind. Indeed, the threefold division seemed to disarm opposition and to lead the delegates to invest the government with greater power than would otherwise have been the case, and Mr. Madison quotes Mr. Butler of South Carolina as saying, in the session of May 30, 1787, on the very threshold of the debates, "that he had opposed the grant of powers to Cong. heretofore, because the whole power was vested in one body. The proposed distribution of the powers into different bodies changed the case, and would induce him of General to go great lengths." 4 In a constitution meant to endure,— and the delegates of the Federal Convention hoped they were doing no vain thing,- it was impossible to foresee every contingency and to provide against it by a specific enumeration of powers. The convention therefore wisely contented itself with the enumeration of what may be called general powers which a government adequate to the exigencies of the Union should possess, powers which could be better exercised by the Union of the States than by any one State. Too long to quote, it is difficult to summarize these powers, inasmuch as the 1 Documentary History, Vol. iii, p. 18. 2 Ibid., p. 22. 3 Ibid., pp. 33-4. 4 Ibid., p. 21. Enumeration Powers language of the Constitution is so familiar as at times to defy paraphrase and so concise as to make a summary seem longer than the original. Without attempting the impossible, it may be observed that the great defect of the Articles of Confederation was met and overcome by empowering the Congress "to lay and collect taxes, duties and imposts," with the wise and indeed necessary proviso that they should be uniform throughout the United States. This would enable the more perfect Union to pay the debts already contracted and those which should be incurred in the future, and to do what the League of Friendship under the Articles of Confederation had never been able to do, namely, to "provide for the common defence and general welfare of the United States." It was foreseen that the government of the Union might need to borrow money, therefore it was specifically authorized to do this. The second great defect of the Articles was the chaotic condition of commerce and the inability of the Confederation to regulate it. All attempts to amend the Articles in this sense had failed, but they were not fruitless, inasmuch as the Annapolis Convention called for this purpose brought about the Federal Convention of 1787, which accomplished it. Hence the Congress was given power to regulate commerce with foreign nations, the several States, and the Indian tribes. cern. The Confederation was, according to its critics, largely a bankrupt conIt therefore had very special reasons to recognize the need of uniform laws on the subject and invested Congress with the power to make them. It was necessary to have money, therefore Congress was empowered to coin money, to regulate its value and that of foreign coin, and in the interest of trade and commerce to fix the standard of weights and measures. And to make these clauses effective, the Congress was authorized to punish counterfeiting of the securities and current coin of the United States. Allied with this phase of the subject, although not necessarily connected with it, was the progress of science and useful arts, therefore the Congress was given authority to make laws securing to authors and inventors copyrights and patents for "their respective writings and discoveries." As it was recognized that a vast Union could not be held together for any length of time without means of communication, the Congress was authorized to establish post offices and post roads. Vast indeed the territory was, although but a fraction of that now subject to the laws of the Union. It was sparsely settled, but it was anticipated that large numbers of persons would forsake the old to find fortune and happiness in the new world. Accordingly the Congress was given the power "to establish an uniform Rule of Naturalization" that the new might enjoy the rights of the old. 66 International Constitution The government was to be one of laws, not of men, therefore there was to be a Supreme Court which would interpret the laws and apply them to the concrete cases as they arose between States as well as their citizens, and likewise inferior tribunals. But the law was not merely to be the law of the States or of the Union; it was to be a law of the seas as well, and Law in the the Congress was given the power to punish piracies and felonies committed on the high seas beyond the jurisdiction of the States and of the United States. Wisely the Congress was vested with the power to define and punish offences against the Law of Nations," a mere clause, yet introducing the whole body of international law, making it a part of the Constitution of the United States and of each State of the Union, for every citizen and inhabitant thereof. The Law of Nations of that day recognized letters of marque and reprisal, as it still does captures on land and water. Congress could therefore have enacted laws on these subjects without a specific authorization, yet the experience of the Confederation doubtless suggested the advisability of specific mention. They were then and are now incident to war, and on this point the framers of the Constitution, intent upon a government of laws not of men, were unwilling to trust any person to declare war, even the august president of the convention, General Washington himself, already designated in the minds and hearts of his countrymen to be the first of a line of presidents of the Union. Therefore only the Congress was to declare war, a body whose lower house was composed of representatives of the people of each State chosen by the people themselves divided into districts, and whose upper house was composed of two representatives from all States, large and small, representing the States. Representatives of the people and of the States do indeed declare war upon occasion, but not as easily and readily as members of a family owing their position and prestige to war and too often anxious to perpetuate them by the same means. The Congress has so far been given the power to raise, borrow, and coin money, to regulate commerce, to establish means of communication, and to protect what may be called intellectual property, to establish inferior tribunals to administer within the States, to accept jurisdiction and punish violations of the Law of Nations, and to declare war. Consequently the Congress was vested with the powers incidental to the declaration of war, the power to raise and support land and naval forces and to make rules for their government. The war of course was to be carried on by the United States, not by any one of the States, inasmuch as each had by the Constitution renounced the right to wage war unless attacked. The president was indeed to be Commander-in-Chief of the army and navy, but Congress was to raise and support the armies, to provide and maintain a navy, and to make the rules of their government, as well as to declare war. And Government of Laws and Not of Men Seat of Government of Limited Powers to make the rights of Congress secure in the premises, no appropriation of money for these purposes was to be for "a longer Term than two Years." War was thus to be declared by civilians, armies and navies were to be raised and supported by civilians, the rules for their government were to be made by civilians, the army and navy in the war were to be commanded by a civilian, to the end that this may be a government of laws and not of men. While the States as such were not to wage war, it was clearly understood that they might have need of an armed force to protect them and their peoples, therefore each was to have a militia to be raised and officered by them, to be commanded by them in times of peace, but in time of war to be called into the service of the States as a whole instead of the individual States. Therefore the Congress was given the power to call forth "the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Because of this eventual service, the Congress was authorized to provide for “organizing, arming, and disciplining, the Militia, and for governing" the part of it taken into the service of the Union, the States reserving, however, the appointment of officers and the right of training the militia according to the discipline prescribed by Congress. Thus far we have a government without a habitat, for the Union was a Union of the States, and the territory to the west of the States belonged to the States. There was not a foot of American soil belonging to the Union as such. In this Union the States were to be equals. There was to be no primus inter pares. No State was to be vested with any prerogative, privilege or function not possessed by all. Therefore the Congress was authorized to accept and exercise exclusive jurisdiction within a district not exceeding ten miles square as particular States might cede, to become "the Seat of the Government of the United States," and the Congress was similarly authorized to exercise a like authority "over all places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.' This was indeed a government of limited powers and limited extent, the seat of government itself ten miles square, to be ceded by the States if they should choose to do so, and any property acquired within the States to be purchased by the Congress with the consent of the legislature of the State involved. The enumeration of these powers necessarily carried with it the right to make such laws as should be necessary and proper to carry them into execution, but it was well to say so in order to remove doubt or misunderstanding, as also to authorize the Congress, as was done by the final paragraph of the eighth section of the first article, to carry into execution. "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." |