stamped with the approval of time as well as of philosophers, the imitation was not servile. They knew by experience as well as history the mischief in the colonies and the mother country that had been caused by the lack of sufficient checks upon the powers of Parliament as well as the prerogative. They not only adopted the main checks which were a part of the British Constitution, but they took others which had been incorporated in the new State constitutions as well as some invented by themselves. The first Constitution of Massachusetts has a closer resemblance than any other to that of the United States.

§ 9. Compromises of the Constitution.

Compromises are the foundation of the Federal Constitution. The members of the Convention were too experienced in public life to sacrifice the public welfare for a syllogism. They cared nothing for a name when the thing wished could be gained in substance under another term. They were too wise to reject a part when they could not obtain the whole. Their sagacity was excelled only by their patriotism.

This, which with some amendments is still in force, was the most carefully constructed State Constitution then in existence. The rejection by the town meetings of the proposed Constitution of 1778, drafted by the State legislature or General Court, because, amongst other things, it did not provide sufficiently for a separation of the three departments, had caused a thorough consideration of the whole subject by the people of the State before the meeting of the Constitutional Convention in 1779, which was chosen for that sole purpose. From this seem to have been taken the clauses in the Federal Constitution concerning the veto power; impeachments; habeas corpus; and the tenure of office of judges. In that also, the upper house of the Legislature was called the Senate and had the power to amend but not to originate money bills; and the lower was the House

Provisions which to the

of Representatives. The same name with different powers over money bills and the power to try impeachments was given to the upper houses in six other States. Supra, § 7, note 22. The name House of Representatives was also then applied to the lower house in the State Constitutions of New Hampshire, South Carolina, Pennsylvania and Vermont. The Journal of the Convention which framed the Constitution of 1780, was published by the order of the State Legislature in 1832. A pamphlet containing a report of the reasons for the rejection of the Constitution of 1778 by a convention of delegates of the towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newburyport, Salisbury, Boxford, Methuen and Topsfield, held by adjournment, Ipswich, April 29, 1778, was published by John Michael, at Newburyport, in 1778.

majority seemed beneficial were rejected because it was thought that their express inclusion might endanger the ratification of the plan, while they could under the general language be subsequently established by Congress.1

After the struggle between those who wished a new national constitution and those who were willing only to accept an amendment of the Articles of Confederation had ended in the defeat of the latter, the word "national" was stricken from the paper. Provided that the form was national, they were satisfied that it might be termed federal, even though that name was susceptible of two inconsistent interpretations.2 The names of President and Congress were continued, because used under the Confederation, although the House of Representatives, at least, had no resemblance to a congress of ambassadors, and the new executive did not preside. These, however, were in the nature of concessions to popular prejudices, made voluntarily. Between the members of the Convention were constant differences which more than once threatened a disruption, and were only harmonized by reluctant compromise. The larger States were resolved to cancel the injustice of the Confederation, which placed each of them upon an equal footing with Connecticut and Rhode Island. Some of their delegates wished to insist upon this at the opening of the Convention,

§ 9. 1 Hamilton's Opinion on the Bank (Hamilton's Works, 1st ed., vol. i, p. 127; Story on the Constitution, § 1268). When the grant of an express power to incorporate a bank was proposed, Gouverneur Morris opposed it, observing that it was extremely doubtful whether the Constitution they were framing could ever be passed at all by the people of America; that to give it its best chance, however, they should "make it as palatable as possible, and put nothing into it not very essential, which might raise up enemies" (Jefferson's Ana, Works, 1st ed., vol. ix, p. 191). So Gouverneur Morris opposed the inclusion of an express grant of power to establish a university, saying: “It is not necessary. The exclusive power

at the seat of government will reach the object" (Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 544). His own proposition of the creation of six cabinet offices was not adopted, undoubtedly for the same reason (ibid., p. 446). Morris admitted in his letter to Pickering, Dec. 22, 1814, that when he drafted the article on the judicial power, "conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases which, expressing my own notions, would not shame others, nor shock their self love; and to the best of my recollection, this was the only part which passed without cavil" (ibid., vol. i, p. 507).

2 See the discussion of the meaning of the term quoted, infra, § 17.

and to demand that votes in that body should be counted in accordance with the number of constituents represented.3 Only the moderation of Virginia prevented such a course, which would have broken up the proceedings at the start. The smallest States were equally determined to make no sacrifice of their present rights, and pointed to the oppressions of Athens and Sparta upon their weaker confederates as a warning against the danger of an hegemony. The settlement of this question by the adoption of the suggestion of Roger Sherman not only saved the Union, but established the only upper chamber in the world which at the end of the nineteenth century enjoys either power or respect.

The difference between the occupations and domestic institutions of the North and South presented the same questions which divided the Union after it was formed, and they nearly prevented at the first that consolidation which seventy years later they almost tore apart. Commerce and shipping were the industries for which the climate and harbors of New England had fitted its inhabitants. For these objects its delegates demanded that a majority in Congress should have the power to pass a navigation law and negotiate commercial treaties. Satisfied and enriched by agriculture, the planters of the South were willing to have their rice, indigo and tobacco shipped on foreign as well as domestic bottoms. They feared, however, lest the general government might discriminate against them by a tax upon their exports. Those of the interior had good cause for fear lest a majority might through a short-sighted policy barter to Spain the right of

"Previous to the arrival of a majority of the states, the rule by which they ought to vote in the Convention had been made a subject of conversation among the members present. It was passed by Gouverneur Morris, and favored by Robert Morris and others from Pennsylvania, that the large states should unite in firmly refusing to the small states an equal vote, 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 themselves on the mercy of the larger states, discountenanced and stifled the project." Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 125.

free navigation of the Mississippi in return for commercial privileges in that country and its colonies. They were unwilling to give up the right of importing slaves from Africa; and wished when slaves escaped to have them returned by the Northern States. Representation by population, they insisted, should be proportioned to slave population as well as free, if for no other reason, to prevent the destruction of slavery by a capitation tax. The conscientious scruples of the descendants of the Puritans of the North made their delegates refuse to recognize any right of property by man in man. This matter, too, was adjusted by the adoption of the rule, that representatives and direct taxation should both be proportioned to the number of free inhabitants plus three-fifths of the rest, and that a capitation should be considered a direct tax. The taxation of exports by the States severally or united was forbidden absolutely. The power to regulate commerce was vested in a majority of Congress, but it was provided that treaties could not be negotiated without the consent of two-thirds of the States present in the Senate. The slave-trade was preserved for a period of twenty years; and fugitive slaves, like fugitives from justice, were to be returned by the free States to their masters. The conscience of the North was salved by the omission of the name of slave from the Constitution. "Circumlocutions," said John Quincy Adams, "were the fig-leaves under which these parts of our body politic are decently concealed.”7

Jay, who had been sent to Spain to negotiate a treaty, had requested Congress for permission to concede to Spain the exclusive right to navigate the Mississippi for a limited period of time. Congress by a vote of seven to five had authorized him so to do, and he had negotiated a treaty for that purpose, which had not been ratified. Washington also was in favor of this course, in return for favorable commercial advantages. See Curtis' Con

6

§ 10. Result of the Federal Convention.

As the result of their labors they established a federal republic with a presidential form of government. They created a strong and stable nation with local self-government secured to the different States, who were restrained from creating domestic discord by unjust discrimination in favor of their own citizens. The instrument that they framed has withstood the shock of the invasion of a foreign army, which captured and burned the capital, and of a civil war which divided the whole country for five years into two hostile camps, and left the conquered section so disordered that for ten years more its local governments were upheld by the national sword. During all this time private prop erty has remained secure, and civil liberty undisturbed except for a brief interval amidst the embers of rebellion. Despite the strain caused by the immigration of a vast foreign population of servile races, debased by generations of tyranny, by custom as well as inheritance unfitted to exercise the rights of citizenship, the sovereignty of the people has remained undiscredited and unimpaired, as a beacon light for the friends of popular government throughout the world. In the struggle between the supporters of civilization against the hordes of barbarians within their ranks, which is now in progress throughout Europe as well as America, property has more safety here than in any other country. The spectacle of a people submitting public controversies to the same mode of settlement as private law-suits and acquiescing in the decisions, has set an example which foreign nations are about to imitate, not only in internal discords, but in those which are international.

The invention of representative government in England removed the obstacle which had made it impossible in Greece and Italy to combine freedom with an extension of territory. But democratic government could not be accompanied by stability of public credit and security of private property until the United States first established a written constitution guarded from infringement by the courts.

1 Infra, § 38.