XVI

GOVERNMENT SET UP: AMENDMENTS

Whilst the last members were signing it [the Constitution] Doct! Franklin looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun. (Madison's Notes of Debates in the Federal Convention of 1787, Session of September 17, 1787, Documentary History of the Constitution of the United States of America, 1786-1870, Vol. III, 1900, p. 770.)

It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible, and was in fact divided, according to the Constitution of the U. States, between the States in their united and the States in their individual capacities that as the States, in their highest sov. char., were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part & retain, as they have done, the other part, forming a mixed Govt with a division of its attributes as marked out in the Constitution.

Certain it is that the constitutional compact of the U. S. has allotted the supreme power of Govt partly to the United States by special grants, partly to the individual States by general reservations; and if sovereignty be in its nature divisible, the true question to be decided is, whether the allotment has been made by the competent authority, and this question is answered by the fact that it was an act of the majority of the people in each State in their highest sovereign capacity, equipollent to a unanimous act of the people composing the State in that capacity. (James Madison on Sovereignty," 1835, Gaillard Hunt, Editor, The Writings of James Madison, Vol. IX, 1910, pp. 568-9, 572.)

"These states are constitutent parts of the United States. They are members of one great empire," ("members of the American confederacy;" 2 Pet. 312,) "for some purposes sovereign, for some purposes subordinate." 6 Wh. 414. The political character of the several states of this Union, in relation to each other, is this: For all national purposes, the states and the citizens thereof, are one; united under the same sovereign authority, and governed by the same laws. In all other respects the states are necessarily foreign to and independent of each other. "They form a confederated government; yet the several states retain their individual sovereignties, and with respect to their municipal regulations, are to each other sovereign." 2 Pet. 590, 1; 10 Pet. 579. S. P.; 12 Wh. 334. "The national and state systems are to be regarded as one whole." 6 Wh. 419. "In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign with respect to the objects committed to it; and neither sovereign with respect to the objects committed to the other." 4 Wh. 410. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 14.)

The great and incurable defect of the confederation was, the dependence of congress on state laws to execute and to carry into effect their resolutions and requisitions generally speaking, the jurisdiction of the old and new congress was the same, except as to the regulation of commerce and a judicial system. The states would not delegate the power of execution to operate directly on the subjects of its jurisdiction; the people of the states granted this power, by the constitution, by which alone the federal government became efficient and competent to the objects of its creation. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 105-106.)

In this outline of our old constitution of government, we see the pattern of our new one, though with a different distribution of powers; the most important of those which are in the king, by prerogative, in England, are granted to congress; the judicial power is vested in the courts of the United States, exclusively; and the executive power is as much defined by enumeration, as the legislative and judicial powers of the constitution are. Herein consists one great difference between the two governments; and from this there arises another, which is all important. The powers not delegated, or prohibited, being reserved to the states respectively, or the people; none can exist by prerogative, or inherent power, in any branch of the government. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 54-55.)

This change was effected by the constitution, which, in the language of this Court, is a grant. "The grant does not convey power, which might be beneficial to the grantor, if retained by himself, or which can move solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents, selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant," 9. Wh. 189. The language of the constitution is the same. All legislative powers herein granted, shall be vested in a congress of the United States," &c. The executive power shall be vested in a president of the United States of America." The judicial power of the United States shall be vested in one

Supreme Court."

66

46

Here then, there is something visible to the judicial eye, tangible by judicial minds, reasoning, illustration, and analogy; intelligible by judicial rules and maxims, which, through all time, have prescribed its nature, effect, and meaning. It is a grant, by a grantor, to a grantee, of the things granted; which are, legislative, executive, and judicial power, vested by a constituent, in agents, for the enumerated purposes and objects of the grant. It declares the grantor and constituent, to be "the people of the United States," who, for the purposes set forth, ordained and established" it as a constitution for the United States of America; the supreme law of the land;" creating what its framers unanimously named, "the federal government of these states." Its frame was 'done in convention, by the unanimous consent of the states present." The 7th article whereof declared that, "the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution, between the states so ratifying the same." And, to leave no doubt of their intention, as to what should be deemed a convention of a state, the members thereof, by the unanimous order of the convention, laid it before congress, with their opinions, that it should be submitted to a convention of delegates chosen in each state, by the people thereof, under the recommendation of its legislatures, for their assent and ratification. 1 Vol. Laws U. S. 70, 71. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 11-12.)

These colonies were not declared to be free and independent states, by substituting congress in the place of king and parliament; nor by the people of the states, transferring to the United States, that allegiance they had owed to the crown; or making with the state, or nation, of the United States, a political connection, similar to that which had existed with the state of Great Britain.

A state, to be free, must be exempt from all external control; on a separate and equal station with the other powers of the earth;" within whose territorial limits, no state or nation can have any jurisdiction: this is of the essence of freedom, and being free, in the grant and exercise of legislative power at their pleasure, a state, and the people thereof, must have the absolute sovereignty, illimitable, save by the people themselves. Such was the situation of the states and people, from 1776 till 1781, when the several state legislatures made an act of federation, as allied sovereigns, which was only a league or alliance; and being utterly defective, was substituted by a new act of federation; a constitution, ordained by the people of the several states, in their primary inherent right and power, existing in themselves; before any portion of its sovereignty had been impaired by any act of federation, or any severance from its territorial boundary. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 29.)

That a new government was necessary was the universal opinion; but the difficulty was, in agreeing what additional powers should be given to congress by the surrender of the states; no statesman or jurist pretended that this could be done in any

other way than by the voluntary act of the separate states; in their sovereign capacity, by the people in conventions.

The powers of the general government are made up of concessions from the several states; whatever is not expressly given to the former, the latter expressly reserves;" 7 Cr. 33; United States v. Hudson and Goodwin. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 66-67.)

On the other hand, if the government is admitted to be the work of the separate people of each state, there can be no pretext for nullification: the sovereign power of the state has made the grant; has declared it the law of the land, supreme in obligation over its own laws and constitution; has commanded its judges to obey it; has appointed a tribunal to expound it; and bound itself to abide by changes to be made by alterations or amendments. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 101.)

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? . . . This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. (Alexander Hamilton in The Federalist, No. 84, 1788, Paul Leicester Ford, Editor, 1898, pp. 573-575.)

ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS (1789), AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES (1789-1791) PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CON

STITUTION.

ARTICLE I.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

ARTICLE II..

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

ARTICLE III.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE IV.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE V.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

ARTICLE VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

ARTICLE VII.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

ARTICLE VIII.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE X.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It has been said that the liberty which the Anglo-Saxon race everywhere enjoys is derived from the British Constitution as settled by the Revolution of 1688. All subsequent revolutions in Europe are not more plainly the offspring of the French Revolution than was ours of the Revolution of 1688. It was founded, like that, upon a breach of the fundamental law by the rulers. The language of the State Conventions at the time of the separation from England shows that the people universally regarded the liberties for which they were contending as an inheritance from their forefathers. When their independence was achieved, the object of the people was still to preserve under the new conditions these ancient liberties. "Upon that body and stock of inheritance," to adopt the language of Burke in reference to the Whig leaders of 1688, "they took care not to inoculate any scion alien to the nature of the original plant." Although the framers of our Constitution were without any grasp of the modern conception of the historical continuity of the race, they revered the ancient constitutional traditions of England. And thus it comes to pass that Magna Charta, the Acts of the Long Parliament, the Declaration of Right, the Declaration of Independence, and the Constitution of 1787 constitute the record of an evolution. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, the Southern Law Review, New Series, Vol. VI, 1881, pp. 351-352.)

The first ten amendments were adopted immediately after the Constitution. Several States had ratified it upon the faith of the pledge given by the Federalists that such amend ments would be made. They are in the nature of a Bill of Rights, the unwise omission of which from the Constitution was made the subject of loud complaint. These amendments recite the immemorial privileges of British subjects, and employ in some instances the very words of Magna Charta and the Declaration of Right. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, The Southern Law Review, New Series, Vol. VI, 1881, p. 366.)

The several agreements in England for better securing the rights and liberties of the subjects, were the models for the "Bill of Rights," as distinguished in some state constitutions from the "Frame of Government." The more farsighted saw this distinction to be illusory, and justly observed that the constitution was itself a Bill of Rights." (James Harvey Robinson, The Original and Derived Features of the Constitution, 1890, Annals of the American Academy of Political and Social Science, 1890-1891, Vol. I, þ. 209.)

In its chief features, then, we find our Constitution to be a skillful synthesis of elements carefully selected from those entering into the composition of the then existing state governments. The Convention "was led astray by no theories of what might be good, but clave closely to what experience had demonstrated to be good." (James Harvey Robinson, The Original and Derived Features of the Constitution, 1890, Annals of the American Academy of Political and Social Science, 1890-1891, Vol. I, p. 242.)

CHAPTER XVI

GOVERNMENT SET UP: AMENDMENTS

Interim

It was foreseen by the members of the Convention that if a constitution Per were to be formed which would meet the approval of the States, a period would necessarily elapse between its adoption and the organization of the government under its provisions. In the meantime the Congress of the Confederation would need to continue, and it would be required to take measures to institute the new government. The twelfth of Mr. Randolph's resolutions dealt in general terms with this question, to the effect that "provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted." The first draft of the Constitution prepared by the Committee of Detail and reported by it on August 6th went more into particulars, but not wholly to the satisfaction of the Convention, which slightly amended and adopted the twenty-third Article in the session of August 31st. It was, however, thought best that the Article, being of a temporary nature, be stricken from the Constitution, and be included in the formal letter of the President of the Convention transmitting the Constitution to the Congress, in which document it is thus worded:

That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution.1

Upon the ratification of the Constitution by the ninth of the States, the Congress, to which the Constitution had been transmitted, was in a position

'Documentary History of the Constitution, Vol. II, pp. 20–1.