of laying the proposition of his colleagues before the convention and of explaining its terms had devolved upon him. In the course of what may be considered his introduction, he observed that, in revising the federal system, inquiry should be made into the properties which such a government ought to possess, the defects of the Confederation, the danger of the situation in which they found themselves, and the remedy. On the first point he said: The character of such a government ought to secure 1. against foreign invasion: 2. against dissensions between members of the Union, or seditions, in particular States: 3. to procure to the several States various blessings, of which an isolated situation was incapable: 4. to be able to defend itself against encroachment: & 5, to be paramount to the state constitutions.1 The defects of the Confederation he attributed somewhat condescendingly to "the then infancy of the science, of constitutions, & of confederacies," and to the further fact that the framers of the Articles had not then the benefit of experience, but he graciously concluded that perhaps nothing better could be obtained from the jealousy of the States with regard to their sovereignty. Enumerating what he considered the defects of the Articles, he said: 1. that the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority... that they could not cause infractions of treaties or of the law of nations to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money. 2. that the federal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power Nor means to interpose according to the exigency. 3. that there were many advantages, . . . which were not attainable under the confederation such as a productive impost-counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c. 4. that the fœderal government could not defend itself against the encroachments from the states. 5. that it was not even paramount to the state constitutions, ratified as it was in many of the states.2 After referring to the danger of the situation and the prospect of anarchy, due to the general laxity of government, he then proceeded to point out the remedy, “the basis of which he said must be the republican principle." It has been thought advisable to state somewhat fully Mr. Randolph's views on the first and second points of his address, in order that the reader 1 Documentary History, Vol. iii, p. Mr. Randolph's may, as far as possible, be in the position of his auditors, and be better able to appreciate the remedy which, Mr. Randolph was careful to say, should be of a republican nature, and which he laid before the convention with appropriate explanations, which unfortunately have not been preserved. The Virginian or the Randolph plan, as it is indiscriminately called, consisted of fifteen resolutions. They were the basis of discussion from the day of their presentation, and are to be considered as embodying the general principles which expanded, systematized in the form of articles, form the more perfect Union of the United States and their constitution. The first proposes that the Articles of Confederation be corrected and enlarged in the interest of "common defense, security of liberty, and general welfare." The second, that suffrage in the National Legislature be proportioned "to the Quotas of Contribution, or to the number of free inhabitants.” The third, that the National Legislature consist of two branches. The fourth, that "the members of the first branch of the National Legislature" be elected by the people of the several States for a term of years, that they be of a certain age, that they receive compensation for their services, and that they do not hold any office under the State or the United States incompatible with their position. The fifth, that "the members of the second branch of the National Legislature " be elected by the first branch of the legislature from a list of nominees of the State legislatures, to hold office under approximately the same conditions as those of the first branch. The sixth, that each branch originate legislation, that the National Legislature enjoy the rights vested in Congress by the Confederation, and such other rights for which the separate States are "incompetent," or in which the harmony of the United States is interrupted by State legislatures; that it possess in addition the right " to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agt. any member of the Union failing to fulfill its duty under the articles thereof." The seventh, that a National Executive, ineligible for a second term, chosen by the National Legislature for a term of years, be instituted, to receive a salary not subject to increase or diminution for his services, to execute the national laws and to enjoy "the Executive rights vested in Congress by the Confederation." The eighth, that a Council of Revision of "the Executive and a convenient number of the National Judiciary" be created, with authority to examine the acts of the National and of each State Legislature and to reject them under certain contingencies. The ninth, that a National Judiciary, consisting or one or more supreme and of inferior tribunals, be chosen by the National Legislature, composed of judges holding office during good behavior, receiving a salary not subject to increase or diminution during their term of office; that the inferior tribunals decide in first instance and the supreme tribunal in dernier ressort national and international questions, such as piracies and felonies committed on the high seas, captures made from an enemy, cases affecting foreigners or citizens of other States, the National revenue, impeachment of National officers, and, finally, "questions which may involve the national peace and harmony." The tenth, that new States be admitted to the Union formed of territory within the limits of the United States, without requiring a unanimous vote in the National Legislature. The eleventh, that a Republican government and the territory belonging to each State be guaranteed by the United States, "except in the instance of a voluntary junction of Government & territory." The twelfth, that provision be made to continue the existing government and its obligations until "a given day after the reform of the articles of Union." The thirteenth, that provision be made for amendment of "the Articles of Union," without requiring the assent of the National Legislature. The fourteenth, that the officers of the several States be bound by oath to support "the articles of Union." The fifteenth, and last, that the amendments offered to the Confederation by the convention be, with the approbation of Congress, submitted to conventions within the several States chosen by the people "to consider & decide thereon." 1 Four It will be observed that Mr. Randolph's resolutions fall into four groups, The based upon the theory and the practice of the separation of powers to be Groups found, with more or less completeness, in every one of the constitutions of the thirteen States constituting the Confederation; that, leaving out the first resolution, to the effect that the Articles of Confederation should be corrected and enlarged in order to secure "the common defence, security of liberty, and general welfare," the second to the sixth, inclusive, deal with the legislative branch of government, the seventh and eighth with the executive department, the ninth with the judiciary (as did the ninth of the Articles of Confederation), and the remaining six with matters of a general nature, falling within the scope of the proposed government but of a general nature in the sense that no one of them belonged exclusively to any one of the three 1 Documentary History, Vol. iii, pp. 17-20. Change of branches into which the government of the more perfect Union was to be divided. With the text of the Articles of Confederation before our eyes, it would appear that, grafting these resolutions upon the Articles was very like pouring new wine into old bottles, with the result to be expected of such a process. For the strongest advocate of the Articles of Confederation would not suggest that they provided for the threefold division of government, in the sense in which each of the States had done. The Congress under the Confederation did indeed possess the power of recommending, rather than of legislating, and the right, if not the power, in all cases of executing recommendations approved by the States, or its own acts in so far as the States did not interpose. If the Congress is to be considered as an executive, it was a numerous body, not a single person. The judicial power, in so far as it was contained in the Articles, consisted of the right to create a court for the trial of piracies and felonies committed on the high seas, which was never created, of a right to create a court of appeals in cases of capture, which was indeed created, but whose decisions depended upon the mere pleasure of the States for their enforcement; and finally, a power to call into being temporary tribunals, courts or commissions for the settlement of disputes and differences between two or more States concerning boundary, jurisdiction or any other matter of a justiciable nature. It is true that the States under the Articles of Confederation renounced the exercise of certain rights, such as negotiating with foreign countries or concluding treaties of alliance with themselves, or going to war either with foreign countries or with one another, but there was apparently no power lodged in the Congress to make any of these rights effective. The Convention was called by the Congress for the sole and exclusive purpose of revising the Articles of Confederation and of rendering them more effective. A strict and literal construction of this mandate would have suggested, if it did not require, the reading of the Articles as a whole, the discussion of each one of them in detail and its adoption as amended, and a vote upon the completed instrument as a whole as thus corrected and enlarged. This was not the method proposed by the Virginian plan, and a proposition to make the Articles of Confederation the basis of discussion was rejected by the Convention, which wisely preferred, in accordance with the procedure obtaining in international conferences, to invite the presentation of projects, to make one or more of them the basis of discussion, to refer, in original or amended form, those which met with approval to a drafting committee, called by the Federal Convention the Committee of Detail, to be inserted in their proper places in the treaty or convention under amendment, or to form a separate treaty or convention if the original one was displaced or if one did not exist. The result was also in accord with the practice of international conferences, from which, as a man well versed in their affairs has wittily said, we may expect anything except the procedure outlined in the program. It is frequently stated in works of authority that the convention should have revised the Articles as its call was limited to their revision, and that failing to do so their proceedings were revolutionary. The charge was made on more than one occasion in the convention itself, but the answer then advanced was conclusive, at least it appeared so to the members; that it was proper for the convention to submit a draft of a more perfect Union which in their opinion was calculated to effect the purposes which lay behind the call of the conference, inasmuch as the labor of their hands would only be a recommendation to the Congress, and that in any event the form of government, if approved by the Congress, would be submitted to the States for their approval or rejection and would derive all its power and effect from the approval of the States. Or, as more elegantly expressed by the illustrious Washington, in speaking of the conference, that they should "raise a standard to which the wise and the honest can repair." A Union States It will be observed that Mr. Randolph's resolutions speak of a national legislature, a national executive, a national judiciary, from which the consequence is often drawn that the framers intended to and actually did create a nation in which the States were merged and their identity lost, instead of of Free a Union of the States, the government whereof was vested with the exercise of certain sovereign powers, expressly enumerated in the Constitution or arising by necessary implication from the grant of specific powers which the States made to the Union, renouncing at the same time, in behalf of the Union, certain sovereign powers expressly enumerated or arising from necessary implication. In the course of the proceedings, to be specific on June 20th, the term "national" in its relation to the legislature was stricken upon the motion of Oliver Ellsworth, of Connecticut, substituting "government of the United States" for "national legislature." 1 But it is believed that this amendment is immaterial, inasmuch as the term "national" was used as opposed to the federal form of government then existing, and that, in the language of the period, the term "consolidated" was employed where we of today would properly use national. The framers of the Constitution were more intent upon things than words. We do not, however, need to resort to speculation, inasmuch as Mr. Madison has himself explained the sense in which the term "national” was to be understood in the Virginian resolutions. Thus, in a letter dated March 25, 1826, to Mr. Andrew Stevenson, a fellow Virginian, member of Con1 Robert Yates, Secret Proceedings and Debates of the Convention, 1821, p. 142. |