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league of friendship with each other binding on those and their posterity for their common defence against their enemies, for the security of their liberties and properties, the safety of their persons and families and their mutual and general welfare.” Congress should make such general ordinances as, “though necessary to the general welfare,” the particular assemblies were incompetent to make, such as those relating “to our general commerce or general currency; the establishing of posts; and the regulation of our common forces.” Moreover, "all charges of wars and all other general expenses incurred for the common welfare” should be defrayed out of the "common treasury. The preamble of the constitution of New Jersey, of 1776, spoke of the State governments which Congress had advised as such as should best conduce to the happiness and safety of the States "and the well-being of America in general," and the preamble of the constitution of Pennsylvania of the same year, which was largely the

ork of Franklin, declared the purpose of the new government to be to "promote the general happiness of the people of this State and their posterity.”

This constitution also declared that government is "for the common benefit;" language also found in the first constitutions of Virginia and Vermont.” So too Hamilton, in 1780, boldly outlined a plan for a more perfect union whose powers should be adequate to the public exigencies, organized for “the general good” and “the common sovereignty” and having power "sufficient to unite the different parts together and direct the common forces

1 Franklin's plan, July 21, 1775, Articles II, V, VI; Carson, II, 500.

2 Pennsylvania Constitution, 1776, Article V; Virginia Constitution, 1776, Bill of Rights, Section 3; Vermont Constitution, 1777, Article VI, 1786, Article VII,

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to the interest and happiness of the whole.”1 amble of the Articles of Confederation declared their purpose to be "perpetual union;" and while the Articles were under discussion, Massachusetts adopted a constitution, whose preamble declares that “laws are for the common good,” and that the new constitution was adopted "for ourselves and our posterity.” Four years later, New Hampshire, slightly varying the phraseology, declared in its constitution that "government is instituted for the general good."

While the Virginia Plan was under discussion, and after the reports of the Committee of Detail and the Committee of Eleven had been made, Roger Sherman used the phrase "common defence and general welfare” as indicative of the purpose of the new government. Thus Morris had at hand a collection of significant phrases of well adjudicated meaning, if time and long continued use be the test. It was easy to arrange them in their order. The phrase “ordain and establish” had long been in use in the enacting clause of British statutes. The general grant of legislative powers characteristic of the State constitutions in force in 1787, and the unlimited authority of the British Parliament, were undoubtedly the precedent for the general grant of legislative powers to Congress. Vermont, New Hampshire, Massachusetts and South Carolina denominated their Lower House, the House of Representa

i Hamilton to Duane, Vol. I, p. 244.

2 See also Part 1, Article I, of the Constitution of Massachusetts of 1780; also Article VII.

3 New Hampshire Constitution, 1784, Part 1, Article I. 4 August 25; Elliot, p. 477.

5 As in the Statute of Treason (25 Edw. III, 1, 5) 1352; Elliot, V, 449; also see the note on Morris, Supra.

THE LEGISLATIVE POWER.

471

tives, and these States, together with New York, Maryland, Virginia and North Carolina, called their Upper House, the Senate.2

All the States, except Pennsylvania and Georgia, had the bi-cameral system, and these two States adopted it in 1789. The Virginia Plan called for the general investiture of legislative power, but the distinctive titles, Senate and House of Representatives, were suggested by the Committee of Detail. The separation of the powers of legislation had been discussed by Madison in his letter to Jefferson in March, before the Convention assembled, as a reform greatly needed. He had also advocated two branches of the legislature in his letter to Washington in April, a suggestion to which the Virginia Plan conformed. The custom of the country called for annual elections, South Carolina alone choosing the members of its Lower House biennially. The Virginia Plan proposed that Representatives should be chosen by the people. Rutledge suggested “every two years," as also did Randolph. But it was the Committee of Detail that suggested that the electors in each State should have the "qualifications requisite for the electors of the most numerous branch of the

1 Vermont Constitution, 1777, Article II; 1786, Article II; South Carolina, 1778, Article II; Massachusetts, 1780, Part 2, Section 1, Article I, Chapter I, Section 3; New Hampshire 1784, Part 2, Article II; Maryland, 1776, Article I.

2 Virginia, 1776, Section 4; North Carolina, 1776, Article I; New York, Article II, and South Carolina, Article II; Massachusetts, 1780, Part II, Section 1, Article I; Chapter I, Section 2; New Hampshire, 1784.

3 Pennsylvania 1776-1789; Georgia 1777-1789.

4 Article 1, Section 1: 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

5 South Carolina Constitution, 1778, Article XIII.

6 Rutledge, June 12, Elliot, V, 223; Randolph, June 21; Ib.

472

QUALIFICATIONS OF REPRESENTATIVES.

State legislature," and that they should be chosen every second year by the people of the several States."

That the Representative should be twenty-five years of age was first proposed by Mason. The age prescribed for Representatives by the State constitutions at this time, or by custom, was twenty-one years. The additional qualification of United States citizenship, which was now required for the first time, seems to have originated with the Committee of Detail. Mason“ proposed the seven years' citizenship, and Sherman that the Representative should be an inhabitant of the State in which he should be chosen. The nearest precedent for which, in the American practice, was the county residence required of representatives in Virginia.

The apportionment of public expenses according to population was prescribed in New England Articles of

1 Section 2: 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

2. No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

2 June 22, Elliot, V, 228.

8 For the qualification of representatives prescribed in State constitutions, 1776-1800, see the Constitutional History of the American People, 1776-1850, Vol. I, pp. 68-71.

4 August 8, Elliot, V, 389.
o Virginia Constitution, 1776, Section 3.

6 3. Representatives and direct Taxes shall be apportioned among the several Statės which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the

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Union of 1643," and Pennsylvania in its first constitution declared that the apportionment of Representatives according to the number of taxable inhabitants "is the only principle which can at all times secure liberty."2 This principle had been laid down by Madison in his letters of March and April to Jefferson and Washington, and had been incorporated in the Virginia Plan. Gouverneur Morris, a citizen of Pennsylvania, first proposed in the Convention that taxation should be in proportion to representation, and his suggestion was adopted and embodied in the report of the Committee of Detail. With him also originated the restriction of determining the number of Representatives according to the whole number of "free" citizens. Randolph proposed a census, for which only two States, New York and South Carolina, made any provision.

The celebrated three-fifths clause was proposed by Wilson of Pennsylvania and Pinckney, on the eleventh of

first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

1 Article IV, Carson, II, 441.
2 Pennsylvania, 1776, Section 17.
3 July 12, Elliot, V, 302.
4 August 8, Elliot, V, 392.
5 July 10, Elliot, V, 293.

6 New York, a septennial census, constitution 1777, Articles V, XII; census every fourteen years, South Carolina Constitution, 1778, XV. The Federal census, once in ten years, was a compromise.

7 Elliot, V, 181.

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