with Powers to meet such Deputies as may be appointed and authorized by the other States to assemble in the said Convention at the City aforesaid, and to join with them in devising, deliberating on, and discussing, such Alterations and further Provisions as may be necessary to render the Fœderal Constitution adequate to the Exigencies of the Union; and in reporting such Act or Acts for that purpose to the United States in Congress Assembled, as when agreed to by them, and duly confirmed by the several States, may effectually provide for the same: So always and Provided, that such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation of the said States, finally ratified on the first day of March, in the Year One thousand seven hundred and eighty one, which declares that "In determining Questions in the United States in Congress Assembled each State shall have one Vote."

And be it enacted, that in Case any of the said Deputies hereby nominated, shall happen to die, or to resign his or their Appointment, the President or Commander in Chief with the Advice of the Privy Council, in the Recess of the General Assembly, is hereby authorized to supply such Vacancies

Passed at Dover,

February 34. 1787.

Signed by Order of the House of Assembly,

JOHN COOK, Speaker

Signed by Order of the Council

GEO CRAGHEAD, Speaker.

All and singular which Premises by the Tenor of these Presents, I have caused to be Exemplified. In Testimony whereof I have hereunto subscribed my Name, and caused the Great-Seal of the said State to be affixed to these Presents, at New Castle the Second day of April in the Year of our Lord One thousand seven hundred and eighty seven, and in the Eleventh Year of the Independence of the United States of America

Attest

JA BOOTH, Sec.

THOS COLLINS

(Instructions of Delaware State to its Delegates in the Philadelphia Federal Convention of 1787, Documentary History of the United States, 1786–1870, Vol. I, 1894, pp. 23–25.)

DEPARTMENT OF STATE, Washington, April 18, 1899.

Gentlemen: You have been appointed by the President to constitute a commission to represent him at an international conference called by His Imperial Majesty the Emperor of Russia to meet at The Hague, at a time to be indicated by the Government of the Netherlands, for the purpose of discussing the most efficacious means of assuring to all peoples the " benefits of a real and durable peace."

Upon your arrival at The Hague you will effect an organization of your commission, whose records will be kept by your secretary, Hon. Frederick W. Holls. All reports and communications will be made through this Department, according to its customary forms, for preservation in the archives.

The programme of topics suggested by the Russian minister of foreign affairs for discussion at the conference in his circular of December 30, 1898, is as follows: . . I am, etc.,

...

JOHN HAY.

(Instructions to the American Delegates at the First Hague Peace Conference, 1899, Papers Relating to the Foreign Relations of the United States, 1899, pp. 511, 513.)

DEPARTMENT OF STATE, Washington, May 31, 1907.

Gentlemen: You have been appointed delegates plenipotentiary to represent the United States at a Second Peace Conference which is to meet at The Hague on the 15th of June, 1907. . . .

Following the precedent established by the commission to the First Conference, all your reports and communications to this Government will be made to the Department of State for proper consideration and eventual preservation in the archives. The records of your commission will be kept by your secretary, Mr. Chandler Hale. Should you be in doubt at any time regarding the meaning or effect of these instructions, or should you consider at any time that there is occasion for special instructions, you will communicate freely with the Department of State by telegraph. It is the President's earnest wish that you may contribute materially to the effective work of the conference and that its

deliberations may result in making international justice more certain and international peace

more secure.

I am, gentlemen, your obedient servant,

ELIHU ROOT.

(Instructions to the American Delegates of the United States to the Hague Peace Conference of 1907, Foreign Relations of the United States, 1907, part 2, pp. 1128, 1139.)

Mr. King objected to one of the rules in the Report authorising any member to call for the yeas & nays and have them entered on the minutes. He urged that as the acts of the Convention were not to bind the Constituents it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions. .

The proposed rule was rejected nem. contradicente. (Madison's Notes of Debates in the Federal Convention, Session of Monday, May 28, 1787, Documentary History of the Constitution of the United States of America, 1786-1870, Vol. III, 1900, pp. 10–12.)

As is the rule in plenary sessions, each State shall have only one vote in each Commission. (Rule of the First Hague Peace Conference. Conférence internationale de la paix, La Haye 18 mai-29 juillet 1899, procès-verbaux, part 1, p. 14.)

Each delegation has a right to only one vote.

The vote is taken by roll call according to the alphabetical order of the Powers represented. (Regulations of the Second Hague Peace Conference, Deuxième conférence internationale de la paix, La Haye 15 juin-18 octobre 1907. Actes et documents, p. 56.)

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven, and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names. (The Constitution of the United States, Article VII.)

Article 52. The present Convention shall be ratified and the ratifications shall be deposited at The Hague as soon as all the Powers mentioned in Article 15 and in the table annexed are in a position to do so.

The deposit of the ratifications shall take place, in any case, on the 30th June, 1909, if the Powers which are ready to ratify furnish nine judges and nine deputy judges to the Court, qualified to validly constitute a Court. If not, the deposit shall be postponed until this condition is fulfilled.

...

Article 54. The present Convention shall come into force six months from the deposit of the ratifications contemplated in Article 52, paragraphs 1 and 2. . . . (Convention No. XII relating to the creation of an International Prize Court, October 18, 1907, adopted by the Second Hague Peace Conference.)

Two requisites seem necessary to constitute a Federal Government in this its most perfect form. On the one hand, each of the members of the Union must be wholly independent in those matters which concern each member only. On the other hand, all must be subject to a common power in those matters which concern the whole body of members collectively. Thus each member will fix for itself the laws of its criminal jurisprudence, and even the details of its political constitution. And it will do this, not as a matter of privilege or concession from any higher power, but as a matter of absolute right, by virtue of its inherent powers as an independent commonwealth. But in all matters which concern the general body, the sovereignty of the several members will cease. Each member is perfectly independent within its own sphere; but there is another sphere in which its independence, or rather its separate existence, vanishes. It is invested with every right of sovereignty on one class of subjects, but there is another class of subjects on which it is as incapable of separate political action as any province or city of a monarchy or of an indivisible republic. The making of peace and war, the sending and receiving of ambassadors, generally all that comes within the department of International Law, will be reserved wholly to the central power. Indeed, the very existence of the several members of the Union will be diplomatically unknown to foreign nations, which will never be called upon to deal with any power except the Central Government. A Federal Union, in short, will form one State in relation to other powers, but many States as regards its internal

administration. This complete division of sovereignty we may look upon as essential to the absolute perfection of the Federal ideal. (Edward A. Freeman, History of Federal Government, from the foundation of the Achaian League to the disruption of the United States, Vol. I, 1863, pp. 3–4.)

The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the national government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition. The Constitution, for instance, of the United States delegates special and closely defined powers to the executive, to the legislature, and to the judiciary of the Union, or in effect to the Union itself, whilst it provides that 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."

This is all the amount of division which is essential to a federal constitution. But the principle of definiton and limitation of powers harmonises so well with the federal spirit that it is generally carried much farther than is dictated by the mere logic of the constitution. Thus the authority assigned to the United States under the Constitution is not concentrated in any single official or body of officials. The President has definite rights, upon which neither Congress nor the judicial department can encroach. Congress has but a limited, indeed a very limited, power of legislation, for it can make laws upon eighteen topics only; yet within its own sphere it is independent both of the President and of the Federal Courts. So, lastly, the judiciary have their own powers. They stand on a level both with the President and with Congress, and their authority (being directly derived from the constitution) cannot, without a distinct violation of law, be trenched upon either by the executive or by the legislature. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, PP. 147–149.)

It is impossible to imagine liberty in its fulness, if the people as a totality, the country, the nation, whatever name may be preferred, or its government, is not independent on foreign interference. The country must have what the Greeks called autonomy. This implies, that the country must have the right, and, of course, the power, of establishing that government which it considers best, without interference from without or pressure from above. No foreigner must dictate; no extra-governmental principle, no divine right or "principle of legitimacy" must act in the choice and foundation of the government; no claim superior to that of the people's, that is, national sovereignty must be allowed. This independence or national self-government farther implies that, the civil government of free choice or free acquiescence being established, no influence from without, besides that of freely acknowledged justice, fairness, and morality, must be admitted. There must then be the requisite strength to resist when necessary. (Francis Lieber, On Civil Liberty and Self-Government, 1853, Vol. I, p. 73.)

The tendency plainly is towards a more centralized government by a freer interpretation of the United States Constitution. The dangers which menace us from this tendency, and from what may be called democratic abstraction, are met by such a book as this, which teaches that there is no safe liberty but one under checks and guarantees, one which is articulated, one which by institutions of local self-government educates the whole people and moderates the force of administrations, one which sets up the check of state power within certain well-defined limits against United States power, one which draws a broad line between the unorganized masses of men calling themselves the people and the people formed into bodies, "joined together and compacted" by constitutions and institutions. (Theodore D. Woolsey, Introduction to Third Edition of Francis Lieber, On Civil Liberty and Self-Government, 1874, p. 10.)

We know no reason in the nature of things why a state should be any the better for being large, and because throughout the greater part of history very large states have usually been states of a low type. (Sir John Robert Seeley, Expansion of England, 1883, American edition, p. 294.)

CHAPTER VII

THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE

It was foreseen, as has already been pointed out, that amendments to the Articles of Confederation would need to be made, inasmuch as the Union, of which the Articles formed the instrument of government, was to be perpetual, and no instrument could, even in the opinion of its framers, be looked upon as so perfect as not to be susceptible of modifications under changing conditions. The Articles were, as a matter of fact, defective, or were thought to be so by large bodies of people in all the States. At any rate, their provisions were not observed, and it was apparent that modifications would have to be made in the framework of government even if it were possible to preserve the Articles as thus amended. 'Every state" was, to quote the language of Article 13, to “abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them." 1 This unfortunately was not done. It was next provided that the Articles of Confederation should "be inviolably observed by every state," that the union should be perpetual, and that no alteration should "at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state."

Demands

of Commerce

The requirement of unanimity, natural enough and indeed proper in a diplomatic document, and to be understood unless there be a stipulation to and Navigation the contrary, rendered an amendment of the Articles very difficult, as the experience of well nigh ten years had amply shown, and yet the consent of all must be had to a change affecting all, if that change were to take place and become effective. Without recounting the steps taken to invigorate the government, whose outward weakness was more apparent than its inner strength, it is sufficient to recall that Virginia, under the wise direction of Madison, took advantage of the meeting of delegates of that State and of Maryland concerning the freedom of navigation of the Potomac and of the Chesapeake to call a conference of all the States for this purpose, to meet at Annapolis the first Monday in September, 1786.

An agreement about commerce and navigation would have been a mere patch upon the Articles, which would otherwise remain as they were. The crying need of the Confederation was such a modification of the Articles as

1 The Constitutions of the Several Independent States, 1781, pp. 201-2.

would vest the general government with power to regulate commerce and navigation, and by means thereof or by other means to acquire a revenue for the purposes of government. A revision limited to a part of the field might have enabled the Confederation to continue as thus modified until a more favorable occasion should present itself for a revision of the scheme of government as a whole.

Of the thirteen States invited, nine accepted the invitation and appointed delegates, but of the nine only the delegates of five arrived, and the representatives of Virginia, Maryland, New Jersey, Delaware and New York properly concluded that it would serve no useful purpose to draft a plan to be accepted by all when only five of the States were sufficiently interested to have their delegates take part in the convention. Therefore they wisely limited their report presented to the States and likewise to the Congress, to a statement of the needs of revision, and they recommended a conference of delegates of all the States, to meet in Philadelphia the second Monday of May in 1787, "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterward confirmed by the Legislatures of every State, will effectually provide for the same." 1

As the initiative came from the States, it was natural that those States. most interested in the revision of the Articles should take action, even before the Congress should recommend the States so to do. It was perhaps necessary to do this in order that the Congress should see the advisability of action on its part, lest it might seem to be forced to move, and thus to lose the credit of directing what its members could not seemingly prevent. Therefore, after the State of Virginia (October 16, 1786), the State of New Jersey (November 23, 1786), the State of Pennsylvania (December 30, 1786), the State of North Carolina (January 6, 1787), the State of New Hampshire (January 17, 1787), the State of Delaware (February 3, 1787), and the State of Georgia (February 10, 1787) had complied with the recommendation of the Annapolis Convention and had appointed their delegates to the meeting in Philadelphia, the Congress, on February 21, 1787, passed the following resolution:

Whereas there is provision in the Articles of Confederation & perpetual Union for making alterations therein by the Assent of a Congress of the United States and of the legislatures of the several States; And whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and particularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and 1 Elliot's Debates, Vol. i, p. 118.