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THIS NUMBER CONTAINS SEVEN SHEETS, ONE HUNDRED AND TWELVE PAGES.

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THE CONSTITUTION-THE FRAMERS AND THE FRAMING.*

SECOND ARTICLE.

In a preceding article (D. R., August, 1842, Article II.) we made some remarks upon the proceedings that led to the Federal Convention, and upon the characters of some of the most prominent members. On the present occasion we propose to notice very briefly the principal plans that were presented, and the progress of the debate, by which they were gradually moulded into the existing Constitution.

The evil complained of under the preceding system-commonly called the old Confederation-was the inefficiency of the Congress, and its want of any regular power to enforce its requisitions on the States. The nature of the remedy indicated by this political disease, was, of course, in general terms, an extension of the authority delegated to the Union, and a partial sacrifice of State independence. Thus far all were agreed-at least all whose opinions were represented in the convention. But it was, of course, impossible that a revolution like the one in contemplation should take place with

out great differences of opinion; and these naturally turned upon the extent to which the proposed increase of the power of the Union should be carried, and the form in which it should be effected. The debates that grew out of these differences revealed the existence of the National and State-Rights parties, which divided the Convention, and which seem to constitute the permanent party division most naturally resulting from the political circumstances of this country. The precise point on which the parties took issue in the Convention was, whether the Union should be continued as a confederacy of independent States, with such extension of the powers of Congress, as might be deemed expedient, or whether the States, for the purposes contemplated in the Union, should surrender their independence, and form themselves into one body politic, under a common government.

The friends of the latter system proposed the establishment of a general government, with a legislature in

The Papers of James Madison, purchased by Order of Congress, being his Correspondence, and Reports of Debates during the Congress of the Confederation, and his Reports of Debates in the Federal Convention, now published from the Original MSS., deposited in the Department of State, by Direction of the Joint Literary Committee of Congress, under the Superintendence of Henry D. Gilpin. 3 vols 8vo. New York: J. and H. G. Langley. 1841.

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which the States should exercise influence in proportion to their population. They also proposed to give to the General Government a negative on the acts of the State Governments. The State-Rights party, on the other hand, proposed the continuance of the existing confederacy, with some extension of the powers of Congress, and the addition of a national executive and judiciary. After much discussion the point was compromised, by the establishment of a general government, acting directly upon individuals, and not upon States; with a legislature consisting of two branches, in one of which the States were to have an equal vote, and in the other a vote proportional to their population. The other question was compromised in a still more skilful way, by maintaining, in the first instance, the formal validity of all the acts of the State Governments; but, at the same time, giving to the Constitutional laws of the Union a paramount authority in the courts of just ice, anything in the constitution and laws of the several States to the contrary notwithstanding. By this mas terly device the ascendency of the Union, which was indispensable to the harmonious and successful conduct of the public affairs, was fully secured, without any offensive interference with the formal legislation of the States, or any danger of the collisions to which an attempt at such interference would have necessarily led. The adoption of these principles fixed the basis of the new system: the subsequent proceedings of the Convention were a mere arrangement of details, not always unattended with difficulty, but, in most cases, of no essential importance to the general result.

Such is the naked outline of the proceedings of the Convention. At the present time we believe it to be the prevalent opinion that the compromise adopted on both these points was, on the whole, favorable to the views of the National party. In the Convention itself the feeling appears to have been different. The proportional vote of the States in both branches of the national legislature, and a formal negative by the General Government on the laws of the States, were considered by the National party as indispensable to the success of the new scheme. They feared, and fully believed, that an equal

representation of the States in one branch of the Legislature, having a complete negative on the acts of the other, would be just as fatal to the efficiency of the Government as an equal representation in both, and would perpetuate all the vices of the old Confederation. This apprehension, which appears, in fact, very plausible, and of which nothing but experience could have shown the futility, was entertained, not only by those who would have preferred a permanent executive and senate-in short, a constitution substantially on the British model—but by those who contemplated merely an efficient republican government. We had occasion to advert, in our preceding article, to the great influence exercised by Virginia on the establishment of the Constitution, and to the extraordinary prominence of Mr. Madison as a member of the Convention. It is, therefore, worthy of remark in this connection, and the fact is highly honorable to the character of the Convention, that this influence, far from being dictatorial, was not even on the most important points regarded as decisive; and that every member of the Convention seems to have acted with perfect independence upon every question that came before the body. On both the points alluded to above-the proportional vote and the formal negative on the laws of the States-Virginia was decided. They are the leading points in Governor Randolph's plan, which formed the basis of the proceedings. Mr. Madison insisted on both, with immovable tenacity, to the very last moment that they were under discussion; but, notwithstanding their respect for the commanding position of Virginia in the Union, and for the personal character and talents of Mr. Madison, the representatives of the smaller States acted without hesitation upon what they considered as the interest of their constituents, and succeeded in defeating the efforts of Mr. Madison and the other statesmen of the Virginia school. The result has shown that in practical politics the force of circumstances is a safer guide than any theoretical reasoning, however plausible, or, considered as theory, apparently incontestable. The equal vote of the States in the Senate has not been found in practice to impair, in the slightest degree, the efficiency of the General Government.

The assignment of the duty of maintaining the ascendency of the legislation of the Union over that of the States to the judiciary department, instead of the legislative or executive, was an improvement, of which no language can describe the importance, and is the feature in the Government which is now justly regarded as the pride and beauty of the system.

This question, upon which the divisions in the Convention, and subsequently in the country, were destined chiefly to turn, presented itself for discussion at the very threshold of the proceedings. Mr. Madison tells us, that "before the arrival of a majority of the States, the rule by which they ought to vote in the Convention had been a subject of conversation among those members present. It was pressed by Gouverneur Morris, and favored of Robert Morris and others from Pennsylvania, that the large States should unite in firmly refusing to the small ones an equal vote in the Convention, as unreasonable, and as enabling the small States to negative every good system of government, which must, in the nature of things, be founded on a violation of that equality. The members from Virginia, conceiving that such an attempt might beget fatal altercations between the large and small States, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective government, than, on taking the field of discussion, to disarm themselves of the right, and thereby throw them selves on the mercy of the larger States, discountenanced and stifled the project."

The want of punctuality in attending to their duties, which prevailed to so great an extent among the members of Congress under the old Confederation, was also observed at the opening of the Convention. The day fixed for the meeting was the fourteenth of May, 1787, but it was not until the twenty-fifth that seven States, forming at that time a majority of the whole number, were represented, and that it was possible to proceed to business. After the formal arrangements, which occupied three or four days, had been completed, Governor Randolph, of Virginia, on the twenty-ninth of May, presented a series of fifteen Resolutions,

embracing the principles which were to form the basis of the proposed Constitution. He introduced them by a speech of some length, explaining the nature of the mischiefs which had been felt under the old Confederation,-the dangerous condition of the country, and the character of the remedy proposed in the Resolves, which were offered in the name of the Virginia delegation. These Resolutions contain the germ of the Constitution, as finally adopted, and formed the text of the debates throughout the whole proceedings. They are as follow:

"MR. RANDOLPH'S RESOLUTIONS.

"Resolved, That the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution : namely, 'common defence, security of liberty, and general welfare.'

"2. Resolved, That the rights of suffrage in the national Legislature ought to be proportioned to the quotas of the contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.

"3. Resolved, That the national Legislature ought to consist of two branches.

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"4. Resolved, That the members of the first branch of the national Legislature ought to be elected by the people of the several States every of ; to be of the age of years at least; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office, established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the first branch, during their term of service, and for the space of

after its expiration; to be incapable of re-election for the space ofafter the expiration of their term of service, and to be subject to recall.

"5. Resolved, That the members of the second branch of the national Legislature ought to be elected by those of the first out of a proper number of persons, nominated by the individual Legislatures; to hold their offices for a term sufficient to be of the age of years at least; to ensure their independence; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office, established by a particular State, or under the authority of the United States, except those peculiarly

belonging to the functions of the second branch during the time of service, and for the space of after the expiration thereof.

"6. Resolved, That each branch ought to possess the right of originating acts; that the national Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confederation, and, moreover, to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislatures; to negative all laws passed by the several States, contravening, in the opinion of the national Legislature, the Articles of Union, or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof.

"7. Resolved, That a national Executive be instituted, to be chosen by the national Legislature for the term of

-; to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase nor diminution shall be made, so as to affect the magistracy existing at the time of increase or diminution, and to be ineligible a second time; and that, besides a general authority to execute the laws, it ought to enjoy the executive rights vested in Congress by the confederation.

"8. Resolved, That the executive and a convenient number of the national judiciary ought to compose a council of revision, with authority to examine every act of the national Legislature, before it shall operate, and every act of a particular Legislature, before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.

"9. Resolved, That a national judiciary be established, to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the national Legislature; to hold their office during good

behavior, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution. That the jurisdiction of the inferior tribunals shall be to hear and determine, in the first instance, and of the supreme tribunal to hear and determine in the dernier ressort, all piracies and felonies on the high seas; captures from an enemy; cases in which

foreigners, or citizens of other States, applying to such jurisdictions, may be interested; or which respect the collection of the national revenue; impeachments of any national officers, and questions, which may involve the national peace and harmony.

"10. Resolved, That provision ought to be made for the admission of States, lawfully arising within the limits of the United States; whether from a voluntary junction of Government and territory, or otherwise, with the consent of a number of voices in the national Legislature, less than the whole.

"11. Resolved, That a republican government and the territory of each state, except in the instance of a voluntary junction of Government and territory, ought to be guarantied by the United States to each State.

"12. Resolved, 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, and for the completion of all their engagements.

"13. Resolved, That provision ought to be made for the amendment of the articles of union, whenever it shall seem necessary; and that the assent of the national Legislature ought not to be required thereto.

"14. Resolved, That the legislative, executive and judiciary powers within the several States ought to be bound by oath to support the articles of union.

"15. Resolved, That the amendments, which shall be offered to the confederation by the convention, ought, at a proper time, or times, after the approbation of Congress, to be submitted to an assembly of representatives, recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon."

The Resolutions, as well as the abstract of the speech introducing them, which is given in the Report, were furnished to Mr. Madison by Mr. Randolph himself, and are in his handwriting in the original papers. It is but just, however, to both the parties, to add that the substance of the plan is contained in a letter addressed to Mr. Randolph by Mr. Madison from New York, where he was in attendance as a member of Congress, under date of the eighth of April, 1787. Mr. Madison himself remarks in the Introduction to the Reports, that "the earliest sketch on paper of a constitutional Government for the Union (or

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