of the five Southern States (including three fifths of an estimated number of negroes) was 1,078,000. Comparing this estimate with the results of the first census, it will be seen that the total population of the eight Northern and Middle States exceeds the federal population of the five Southern States, in the census of 1790, in about the same ratio as the former exceeds the latter in the estimate employed by the Convention. Thus in 1790 the total population of the eight Northern and Middle States, including all slaves, was 1,845,595; the federal population of the five Southern States, including three fifths of the slaves, was 1,540,048;

excess 305,547. In the estimate of 1787, the population allotted to the eight Northern and Middle States was 1,495,000; that allotted to the five Southern States, counting only three fifths of the estimated number of slaves, was 1,078,000; -excess in favor of the eight States, 417,000. This calculation shows, therefore, that, in estimating the population of the different States for the purpose of adjusting the first representation in Congress, the Convention applied the rule of three fifths of the slaves to the five Southern States only, and that as to the other eight States no discrimination was made between the different classes of their inhabitants. Other methods of comparing the estimate of 1787 with the census of 1790 will lead to the same conclusion,

CHAPTER VIII.

POWERS OF LEGISLATION.

CONSTITUTION AND CHOICE OF THE EXECUTIVE. CONSTITUTION OF THE JUDICIARY. ADMISSION OF NEW STATES. COMPLETION OF THE ENGAGEMENTS OF CONGRESS. GUARANTY OF REPUBLICAN CONSTITUTIONS. OATH TO SUPPORT THE CONSTITUTION. RATIFICATION. NUMBER OF SENATORS.

SKAT OF GOVERNMENT.

QUALIFICATIONS FOR OFFICE.

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Of the remaining subjects comprehended in the report of the committee of the whole, it will only be necessary here to make a brief statement of the action of the Convention, before we arrive at the stage at which the principles agreed upon were sent to a committee of detail to be cast into the forms of a Constitution.

Recurring to the sixth resolution in the report of the committee of the whole, an addition was made to its provisions, by inserting a power to legislate in all cases for the general interests of the Union; and for the clause giving the legislature power to negative certain laws of the States, the principle was substituted of making the legislative acts and treaties of the United States the supreme law of the land, and binding upon the judiciaries of the several States.

The constitution of the executive department had been provided for, by declaring that it should con

sist of a single person, to be chosen by the national legislature for a period of seven years, and to be ineligible a second time; to have power to carry into execution the national laws, to appoint to of fices not otherwise provided for, to be removable on impeachment, and to be paid for his services by a fixed stipend out of the national treasury. The mode of constituting this department did not, as in the case of the legislative, present the question touching the nature of the government described by the terms "federal" and "national." It was entirely consistent with either plan, with that of a union formed by the States in their political capacities, or with one formed by the people of the States, or with one partaking of both characters, that the exeсиtive should be chosen mediately or immediately by the people, or by the legislatures or executives of the States, or by the national legislature.

SO

The same contest, therefore, between the friends and opponents of a national system was not obliged to be renewed upon this department. So long as the form to be given to the institution was consistent with a system of republican government, long as it provided an elective magistrate, not appointed by an oligarchy, and holding by a responsible and defeasible tenure of office, whether he should be chosen by the people of the States, or by some of their other public servants, would not affect the principles on which the legislative power of the government was to be founded. But this very latitude of choice, as to the mode of appointment, and

the duration of office, opened the greatest diversity of opinion. In the earlier stages of the formation of a plan of government of three distinct departments, the idea of an election of the executive by the people at large was scarcely entertained at all. It was not supposed to be practicable for the people of the different States to make an intelligent and wise choice of the kind of magistrate then contemplated,

a magistrate whose chief function was to be that of an executive agent of the legislative will. Regarding the office mainly in this light, without having yet had occasion to look at it closely as the source of appointments to other offices and as the depositary of a check on the legislative power itself, the framers of the plan now under consideration had proposed to vest the appointment in the legislature, as the readiest mode of obtaining a suitable incumbent, without the tumults and risks of a popular election. But the power of appointment to other offices and the revisionary check on legislation were no sooner annexed to the executive office, than it was perceived that some provision must be made for obviating the effects of its dependence on the legislative branch. An executive chosen by the legislature must be to a great extent the creature of those from whom his appointment was derived.

This,

To counteract this manifestly great inconvenience and impropriety, the incumbent of the executive office was to be ineligible a second time. however, was to encounter one inconvenience by another, since the more faithfully and successfully

the duties of the station might be discharged, the stronger would be the reasons for continuing the individual in office. The ineligibility was accordingly stricken out. Hence it was, that a variety of propositions concerning the length of the term of office were attempted, as expedients to counteract the evils of an election by the legislature of a magistrate who was to be re-eligible; and among them was one which contemplated "good behavior" as the sole tenure of the office. This proposition was much considered; it received the votes of four States out of ten; and it is not at all improbable that it would have received a much larger support, if the supposed disadvantages of an election by the people had led a majority of the States finally to retain the mode of an election by the national legislature. But

1 Moved by Dr. M'Clurg, one of the Virginia delegates, and the person appointed in the place of Patrick Henry, who declined to attend the Convention.

2 New Jersey, Pennsylvania, Delaware, Virginia, ay, 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, no, 6.

3 I understand Mr. Madison to have voted for this proposition, and that his view of it was, that it might be a necessary expedient to prevent a dangerous union of the legislative and executive departments. He said that the propriety of the plan of an executive during good behavior would depend on the practicability of instituting a tri

bunal for impeachments, as certain and as adequate in the case of the executive as in the case of the judges. His remarks, of course, were predicated upon the idea of a final necessity for retaining the choice of the executive by the legislature. In a note to his "Debates," appended to the vote on this question, it is said: "This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, and thereby to facilitate some final arrangement of a contrary tendency. The avowed friends of an executive 'during good behavior' were