COLLOQUY III.

HISTORY OF THE UNION TRACED — ANALYSIS OF THE ARTICLES OF CONFEDERATION— THE DEFECTS IN THEM TREATED OF — THE CALL OF THE FEDERAL CONVENTION TO REMODEL THEM — THE SOLE OBJECT OF THIS CONVENTION WAS TO REVISE THE ARTICLES OF CONFEDERATION AND NOT TO CHANGE THE BASIS OR CHARACTER OF THE UNION — THIS APPEARS FROM THE CALL ITSELF AS WELL AS THE RESPONSES OF THE STATES TO IT — THERE WAS NO INTENTION TO CHANGE THE FEDERAL CHARACTER OF THE UNION.

IT, then, being historically and judicially established that the thirteen States, as separate and distinct Sovereign Powers, declared their Independence, and as such entered into their first Union under the Articles of Confederation of 1777 or 1781, according as we may consider the date of the agreement to the terms of the Union by their deputies in Congress, or the time when these terms were acceded to and ratified by all the States; it being further established that citizenship and allegiance were within and under the control of each State under that Confederation as with all other nations; and that each of the States severally, at this period in our history, had full power to confiscate and do what all other Sovereign States by the laws of nations may of right do; and that the right of Eminent Domain which ever accompanies and distinguishes Sovereignty in its fullest extent, was possessed by them severally as separate, distinct States, it now devolves upon us to trace the history of this Union, so formed, from that time to this. If Sovereignty, beyond question, resided with the

States severally at that time, has it ever been changed or parted with by them since? If it has, it must be shown, and shown by evidence and authority of a conclusive character. Sovereignty cannot pass by implication. If the States were Sovereign when they entered into the Articles of Confederation, they must still remain so, unless they parted with that Sovereignty in those articles, or in the new articles — the new Constitution, as it was called — of 1787, which are the basis of the present Union. Now, in this instrument, the new Constitution of 1787, did the States surrender the Sovereignty which they undeniably and beyond all question possessed in 1783? In this instrument have they parted with their control over the citizenship and allegiance of their citizens respectively? This is the great question. In investigating it, as I have said, we must look not only into the instrument itself, but into the old Constitution, to understand correctly the evils arising under its operation and the remedies applied.

Here, again, I premise by assuming an unquestionable position, and that is, that all grants by Sovereignty are to be strictly construed. Nothing can pass by inference or implication against Sovereignty. It is a fundamental maxim of public law that in construing grants from the Sovereign power, nothing is to be taken by implication against the power granting; nothing will pass to the grantee but by clear and express words. This is true of all grants, even of private rights, from the Sovereign power, and much more stringently is the rule to be adhered to in grants, purporting to surrender Sovereign powers themselves.* It is likewise a universal principle and maxim of political law, that Sovereign States cannot be deprived of any of their rights by implication; nor in any manner whatever but by their own voluntary consent or by submission to a conqueror.**

* Broom's Legal Maxims, p. 260. Vattel, 2d Book, Chap. xvii, See. 305-308.

** Tucker's Blackstone, vol. i, Appendix, p. 143.

Now let us examine the Articles of Confederation, as they were styled, and see the nature and extent of the powers delegated by them.† The stipulations entered into by these Articles, as appear from their face, may be divided into two classes:

† See Appendix B.

First, mutual Covenants between the parties, which, at that time, we have seen, were beyond question separate, distinct, Sovereign States.

Secondly, delegations of power by the several Parties to the Compact to all the States, to be exercised by them jointly, in a general Congress of the States.

The mutual Covenants between the States, upon analysis, may be stated as follows:

1st. The style of the Confederacy was to be "The United States of America."

2d. Each State retained its Sovereignty, freedom and Independence, and every power and right which is not expressly delegated to the United States.

3d. The object of the Confederation was for their mutual defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, Sovereignty, trade, or any other pretence whatever.

4th. In determining all questions in Congress each State was to have one vote.

5th. Each State was to maintain its own Delegates.

6th. The free inhabitants of each State, Paupers, Vagabonds and Fugitives from Justice excepted. were to be entitled to all privileges and immunities of free citizens in the several States.

7th. All Fugitives from Justice from one State into another were to be delivered up on demand.

8th. Full faith and credit were to be given to the records of each State in all the others.

9th. Congress was to grant no title of nobility.

10th. No person holding any office was to receive a present from a foreign power.

11th. No State was to form any agreement or alliance with a foreign power without the consent of the States in Congress assembled.

12th. No two or more States were to form any alliance between themselves, without the like consent of the States in Congress assembled.

13th. No State, without the like consent of Congress, was to keep war ships or an army in time of peace, but each was to keep a well organized and disciplined militia with munitions of war.

14th. No State was to lay any duty upon foreign imports which would interfere with any treaty made by Congress.

15th. No State was to issue letters of marque or to engage in war without the consent of the Congress, unless actually invaded or menaced with invasion.

16th. When land forces were raised, each State was to raise the quota required by Congress, arm and equip them, at the expense of all the States, and to appoint all officers of and under the rank of colonel.

17th. Each State was to levy and raise the quota of tax required by Congress.

18th. The faith of all the States was pledged to pay all the bills of credit emitted, or money borrowed, on their joint account, by the Congress.

19th. It was agreed and covenanted that Canada might accede to the Union, so formed, if she chose to do so.

20th (and lastly). Each State was to abide by the determination of all the States, in Congress assembled, on all questions which, by the Confederation, were submitted to them. The Articles of Confederation were to be inviolably observed by every State, and the Union was to be perpetual. No article of the Confederation was to be altered without the consent of every State.

So much for the mutual covenants.

Secondly. The Delegations of power by each of the States to all the States, in general Congress assembled, upon a like analysis, may be stated as follows: —

1st. The sole and exclusive power to determine on war and peace, except in case a State should be invaded or menaced with invasion.

2d. To send and receive Ambassadors.

3d. To make Treaties, with a Proviso, etc.

4th. To establish rules for Captures.

5th. To grant Letters of Marque and Reprisal.

6th. To appoint Courts for Trial of Piracies and other crimes, specified.

7th. To decide Questions of Dispute, between two or more States, in a prescribed manner.

8th. The sole and exclusive power to coin Money, and regulate the value.

9th. To fix the standard of Weights and Measures.

10th. To regulate trade with the Indian Tribes.

11th. To establish Post-Offices.

12th. To appoint all officers of land forces, except Regimental.

13th. To appoint all officers of the Naval Forces.

14th. To make rules and regulations for the Government of Land and Naval Forces.

15th. To appropriate and apply public money for public expenses, the common defence and general welfare.

16th. To borrow money and emit bills of credit.

17th. To build and equip a navy.

18th. To agree upon the number of land forces, and make requisitions upon the States, for their quotas, in proportion to the number of white inhabitants in each State.

The foregoing powers were delegated, with this limitation — the war power, the treaty power, the power to coin money, the power to regulate the value thereof, the power of fixing the quotas of money to be raised by the States, the power to emit bills of credit, the power to borrow money, the power to appropriate money, the power to regulate the number of land and naval forces, the power to appoint a commander-in-chief for the army or navy, were never to be exercised, unless nine of the States were assenting to the same.

These are the general provisions of the Articles of Confederation of 1777-1781.

JUDGE BYNUM. They are much more numerous and embrace a great many more subjects than I was aware of.

MR. STEPHENS. They embrace nearly the entire ground covered by the present Constitution. That is apparent to all who will carefully compare the provisions of both instruments. But the present object, before going into an examination of a like analysis of the provisions of the new Constitution, is to trace the workings of the old one, the evils or mischiefs discovered in its practical operation, and the remedies sought to be applied in the new. What then were the striking defects in the old system, so far as the want of additional powers was concerned and the remedy which the new Constitution supplied? Without any fear of successful contradiction, it may be said that these consisted of but two. One

was the want of power on the part of the States in Congress assembled, to regulate trade with foreign nations, and between the States, as well as with the Indian Tribes; and the other was the want of a like power to lay taxes directly upon the people of the several States, or to raise revenue by levying duties upon imports, without resorting to requisitions, or quotas, upon the States, in their organized political capacity. This is abundantly clear from the history of the times, and the action of the States in Congress assembled, under the Articles of Confederation. The first movement for additional power, or a change of the Constitution, in any respect, was in Congress, on the 3d of February, 1781.* This was an adoption by the States, in Congress assembled, of the following resolution:

* Elliot's Debates, vol. i, p. 92.

"Resolved, That it be recommended to the several States, as indispensably necessary, that they vest a power in Congress to levy, for the use of the United States, a duty of five per cent. ad valorem, at the time and place of importation, upon all goods, wares, and merchandise, of foreign growth or manufacture, which may be imported into any of the said States, from any foreign port, island, or plantation, after the 1st day of May, 1781; except arms, ammunition, clothing, and other articles imported on account of the United States, or any of them; and except wool cards, and cotton cards, and wire for making them; and, also, except salt, during the war.

"Also, alike duty of five per cent. on all prizes and prize goods, condemned in the court of admiralty of any of these States, as lawful prize.

"That the moneys arising from said duties be appropriated to the discharge of the principal and interest of the debts already contracted, or which may be contracted, on the faith of the United States, for supporting the present war.

"That the said duties be continued until the said debts shall be fully and finally discharged."

This proposition was not concurred in by the' States, and it is useless to trace its history and final rejection.

The second effort at amendment was in 1783, after the war was over, and the independence of the States acknowledged. On the 18th of April, 1783, Congress adopted the following resolution:

"Resolved, by nine States, that it be recommended to the several States as indispensably necessary to the restoration of public credit, and to the punctual and honorable discharge of the public debts, to invest the United States, in Congress assembled, with the power to levy, for the use of the United States, the following duties upon goods imported into the said States from any foreign port, island, or plantation," etc.* Then follows a long list of articles on which it was asked to vest the United States, in Congress assembled, with the power to levy duties upon, and the rate of duty proposed.

* Elliot's Debates, vol. i, p. 93.

This request of Congress for additional powers, though accompanied by an able and strong letter from Congress to the States, asking them to make "the constitutional change" proposed, was never acceded to by the States, and no farther notice of it is necessary here.

On the 30th of April, 1784, Congress again "recommended to the Legislatures of the several States to vest the United States, in Congress assembled, for the term of fifteen years," etc., with certain specified powers over commerce with foreign nations. This proposition was also rejected by the States. Several States agreed to it, but it lacked the necessary number to carry it into effect.

The next movement to effect a change in the Articles of Confederation was by Mr. Monroe, in Congress, July, 1785. His proposition was for the States to vest in the United States, in Congress assembled, "the power of regulating trade." Congress never acted upon this proposition. "It was deemed, in the language of the day, that any proposition for perfecting the Articles of Confederation should originate with the State Legislatures."* Accordingly, Mr. Madison went into the Legislature of Virginia, and under his auspices a movement was made in that body, in December, 1785, with a view to vest in the United States, in Congress assembled, the powers that had been previously proposed by the Congress. This first movement in the Virginia Legislature failed; but subsequently, on the 21st of January, 1786, that body passed the following resolution: "Resolved, That Edmund Randolph, James Madison, Jr., Walter Jones, St. George Tucker, Meriwether Smith, David Ross, William Ronald, and George Mason, Esquires, be appointed Commissioners, who, or any five of whom, shall meet such Commissioners as may be appointed by the other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act relative to this great object as when unanimously ratified by them, will enable the United States, in Congress assembled, to provide for the same; That the said Commissioners shall immediately transmit to the several States copies of the preceding resolution, with a circular letter requesting their concurrence therein, and proposing a time and place for the meeting aforesaid."**

* Elliot's Debates, vol. i, p. 111.

** Elliot's Debates, vol. i, p. 115.

Four other States responded to this resolution of the Virginia Legislature, to wit: New York, New Jersey, Pennsylvania, and Delaware. They all appointed Commissioners, as suggested by Virginia. These Commissioners met in convention at Annapolis, in Maryland, 11th September, 1786. They did nothing, however, but make a report to the Legislatures appointing them and recommending the calling of a General Convention of all the States, to meet at Philadelphia on the second Monday in May, 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 afterwards confirmed by the Legislatures of every State, will effectually provide for the same."†

Elliot's Debates, vol. i, p. 118.

As a reason for this course, they say "they are the more naturally led to this conclusion, as, in the course of their reflections on the subject, they have been induced to think that the power of regulating trade is of such comprehensive extent, and will enter so far into the general system of the Federal Government, that, to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal system."

This communication was addressed to the States from whom the parties held their commissions, and copies of it were likewise sent to the United States, in Congress assembled, and to the Executives of all the States. The Congress took up the subject on the 21st of February, 1787, and came to the following resolution upon it:

"Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures, such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution, adequate to the exigencies of Government, and the preservation of the Union."

It was under this resolution of Congress that the ever memorable Federal Convention of 1787 was called and met. The initiative step to this movement was the resolution of the 21st of January, 1786, of the Virginia Legislature. Mr. Madison was the author of that resolution, though it was offered by Mr. Tyler, father of the late Ex-President Tyler. Mr. Madison's agency in first starting this movement is what has given him the title of father of the present Constitution. In none of these proceedings, either in Congress, or in the Virginia Legislature, or in the communication of the Commissioners at Annapolis, is there any intimation of a wish or desire to change the nature of the Government, then existing, in any of its essential Federative features. It does however, very clearly appear, from the letter of the Commissioners, that, in granting additional powers to the United States, in Congress assembled, it might and would be, in their opinion, proper to make "a correspondent adjustment of other parts of the Federal system." This, doubtless, referred to a division of the powers vested in the States, jointly, under the then Constitution. These were mostly, as we have seen, committed to one body — to the Congress of the States.

Already, the idea had begun to develop itself, of introducing a new feature in the Federal plan — that of dividing the powers delegated, into Legislative and Executive departments, each distinct from the Judicial; and also dividing the Legislative department into two branches, or houses; and, further still, of allowing the Federal machinery to act directly upon the citizens of the States in special cases, and not on the States in their corporate capacity, as had been in all former Confederacies. This idea, at first, was not fully developed. All new truths are slow of development. Mankind, generally, at first, see new truths indistinctly; as the man we read of in the Scriptures, who, having been born blind, when his eyes were opened, at first, "saw men, as trees, walking." This new feature, or these new features, in the Federal plan, are but dimly shadowed forth in the letter of the Commissioners, wherein they speak of some necessary correspondent adjustment of the Federal system. Mr. Jefferson, soon after, gives the idea more form and substance, in a letter to Mr. Madison, written at Paris, 16th of December, 1786. Here is his letter:—

"I find, by the public papers, that your Commercial Convention failed in point of Representation. If it should produce a full meeting in May, and a broader reformation, it will still be well. To make us one nation, as to foreign concerns,, and keep us distinct in domestic ones, gives the outline of the proper division of powers between the general and particular Governments. But, to enable the Federal head to exercise the powers, given it, to best advantage, it should be organized, as the particular ones are, into Legislative, Executive and Judiciary. The first and last are already separated. The second should be. When last with Congress, I often proposed to members to do this, by making of the Committee of the, States an Executive Committee, during the recess of Congress; and, during its session, to appoint a committee to receive and despatch all Executive business, so that Congress itself should meddle only with what should be Legislative. But I question if any Congress (much less all successively) can have self-denial enough to go through with this distribution. The distribution, then, should be imposed on them."*

* Jefferson's Complete Works, vol. ii, p. 66.

This, as far as I have been able to discover, after no inconsiderable research, is the first embodied conception of the general outline of those proper changes of the old Constitution or Articles of Confederation, which were subsequently, as we shall see, actually and in fact, ingrafted on the old system of Confederations; and which makes the most marked difference between ours, and all other like systems. Of all the Statesmen in this country, none ever excelled Mr. Jefferson in grasp of political ideas, and a thorough understanding of the principles of human Government.

This is a brief, but unquestionable, history of the complaints under the old system. The great leading object, at the time, with Congress, was to get additional power to regulate trade, and to raise revenue directly by law, operating on the individual citizens of the States, and not on the States in their corporate character. Under the Articles of Union, as they then were, Congress could regulate trade, as we have seen, with the Indian tribes, but not between the States respectively, or with foreign nations; nor could they raise revenue, as we have seen, except by requisitions upon the States. The main and leading objects were to get the Federal Constitution amended in these particulars. Could these new ideas and new principles be incorporated in a system strictly Federal? This was the great problem of that day. Congress gave consent to the calling of a Convention of the States, as desired, for the sole and express purpose of revising the Articles of Confederation, to the attainment, if possible, of these ends and objects. No intimation was given, in any of the proceedings that led to the call of this Convention, of any wish, much less a desire, to change the character of the Federal system, or to transform it from a Confederate Republic, as it was then acknowledged to be, into a consolidated nation. It is important to pay strict attention to the proceedings at this time. The Convention was called, not to change the nature of the General Government, but to delegate to it some few additional powers, and to adjust its machinery, in accordance with these additional powers. It was with this view, and for this purpose, with this "sole and express purpose," that the States, in Congress, gave the movement their sanction. Now, then, how did this matter proceed? How did the States, in their Sovereign,capacities, respond to this call for a Convention, to change the Articles of their Confederation, so as to remedy the evils complained of? Each of the States, be it remembered, at that time, was a perfect State, clothed with all the attributes of Sovereignty. In our inquiries into the nature and extent of the changes in the fundamental law, especially so far as they trenched upon the Sovereign powers of the States, proposed by that Convention, it is of the utmost importance to know what the States did, both anterior to the call of the Convention, and subsequently.

Let us, then, direct our special attention to the responses of each of the States to the call itself. Here are the responses of all of them.* We will take them up singly and separately.

* Eliot's Debates, vol. i, pp. 126-138.

FIRST, GEORGIA.

The response of my own State is seen in the following ordinance:

"An ordinance for the appointment of deputies from this State for the purpose of revising the Federal Constitution.

"Be it ordained, by the Representatives of the State of Georgia, in General Assembly met, and by authority of the same, that William Few, Abraham Baldwin, William Pierce, George Walton, William Houston, and Nathaniel Pendleton, Esqrs., be, and they are hereby, appointed Commissioners, who, or any two or more of them, are hereby authorized, as deputies from this State, to meet such deputies as may be appointed and authorized by other States, to assemble in Convention at Philadelphia, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an Act for that purpose to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same. In case of the death of any of the said Deputies, or of their declining their appointments, the Executive is hereby authorized to supply such vacancies."

By virtue of this ordinance, the Governor of the State issued commissions, or credentials, to the several Delegates thus appointed. I read one of these. The others are exactly similar to it.

"The State of Georgia, by the grace of God, free, Sovereign, and Independent:

"To the HON. WILLIAM FEW, ESQR.:

"Whereas, you, the said William Few, are, in and by an Ordinance of the General Assembly of our said State, nominated and appointed a Deputy to represent the same in a Convention of the United States, to be assembled at Philadelphia, for the purposes of devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union —

"You are, therefore, hereby commissioned to proceed on the duties required of you in virtue of the said ordinance.

"Witness our trusty and well-beloved George Matthews, Esq., our Captain- General, Governor, Commander-in-chief, under his hand and our great seal, this 17th day of April. in the year of our Lord 1787, and of our Sovereignty and Independence the eleventh."

Signed by the Governor and countersigned by his Secretary.

From this it clearly appears that Georgia responded to the call for a Convention of her Co-Sovereign States, with the sole view of discussing and making such alterations in their then Federal Constitution as might be deemed proper and necessary for the better providing for the exigencies of "the Union." That is, the continued Union of Sovereign Confederated States. Nothing could have been further from the intention of Georgia, or the Congress, than a dissolution of that Union by a general merger of all the people of the United States in one Nation. The object was to preserve the Union as it existed, and not to destroy it.

How utterly demolishing this record is to the reported statement of Mr. Pinckney, quoted by Judge Story, "that no one of the distinguished band of patriots of that day ever thought of the separate independence of the several States." The commission of Governor Mathews shows beyond cavil that at least one of those distinguished patriots, and at least one of those States, not only thought of such an idea, but acted upon it, as a known, fixed, and acknowledged fact. This fact was set forth in the credentials by which the Delegates from Georgia were received by their associates from all the other States. They were received into the Federal Convention, as Delegates from a State claiming at least to be Free, Sovereign, and Independent; and, being so received, all the other parties which so received them should be held to be forever estopped from denying the character of the powers or authority under which they were received and acted. This commission shows, too, that this claim of Sovereignty and Independence was from the date that her Delegates in Congress, in her name, and by her Paramount authority, had joined the Delegates from all the other States in proclaiming the great fact in their general Declaration on the ever memorable 4th of July, 1776.

"The 17th of April," says Governor Mathews, "in the year of our Lord, 1787, and of our Sovereignty and Independence the eleventh."

The responses of all the States which did respond (and all did respond except Rhode Island), are no less significant than that of Georgia. It is quite a labor to go through with them all, but the important bearing they have upon the great questions we are now considering, requires not only that we should look into them, but examine them thoroughly, and scan them closely. These establish very essential facts, to which we should look in our inquiry. They are the deep footprints of truth, impressed upon our earlier history, which assertion can never obliterate, argument cannot remove, sophistry cannot obscure, time cannot erase, and which even wars can never destroy! However upheaved the foundations of society may be by political convulsions, these will stick to the very fragments of the rocks of our primitive formation, bearing their unerring testimony to the ages to come!

The responses of all the States show conclusively the great indisputable fact that they all, at that time, claimed to be Sovereign and Independent, and that their sole object in going into Convention at that time was barely to provide for such changes as could be made in their then Constitution, as experience had shown to be proper, and not to change its Federal character. Let us examine each of them closely.

SECOND, MASSACHUSETTS.

* For all these responses, see Elliot's Debates, vol. i, pp. 126-138.

The response of your State, Judge, appears from the following commission to her Delegates:

"By his excellency, James Bowdoin, Esq., Governor of the Commonwealth of Massachusetts.

"To the Hon. Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus King, and Caleb Strong, Esqs., greeting:

"Whereas, Congress did, on the 21st day of February, A. D., 1787, Resolve,'That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union:'

"And whereas, the General Court have constituted and appointed you their Delegates, to attend and represent this Commonwealth in the said proposed Convention, and have, by a resolution of theirs of the 10th of March last, requested me to commission you for that purpose:

"Now, therefore, know ye, That, in pursuance of the resolutions aforesaid, I do, by these presents, commission you, the said Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus King, and Caleb Strong, Esqrs., or any three of you, to meet such Delegates as may be appointed by the other, or any of the other States in the Union, to meet in Convention at Philadelphia, at the time and for the purposes aforesaid.

"In testimony whereof I have caused the public seal of the Commonwealth aforesaid to be hereunto affixed.

"Given at the Council Chamber, in Boston, the ninth day of April, A. D., 1787, and in the eleventh year of the Independence of the United States of America."

THIRD, CONNECTICUT.

The response of your State, Professor, is seen in the following act of its General Assembly of the second Thursday of May, 1787:

"An Act for appointing Delegates to meet in Convention of the States to be held at Philadelphia, on the second Monday of May instant.

"Whereas, the Congress of the United States, by their Act of the 21st February, 1787, have recommended that, on the second Monday of May instant, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation:

"Be it enacted by the Governor, Council, and Representatives, in General Court assembled, and by the authority of the same, That the Hon. William Samuel Johnson, Roger Sherman, and Oliver Ellsworth, Esqrs., be, and they hereby are, appointed Delegates to attend the said Convention, and are requested to proceed to the City of Philadelphia, for that purpose, without delay; and the said Delegates, and, in case of sickness or accident, such one or more of them as shall attend the said Convention, is, and are hereby authorized and empowered to represent this State therein, and to confer with such Delegates appointed by the several States, for the purposes mentioned in the said Act of Congress, that may be present and duly empowered to sit in said Convention, and to discuss upon such alterations and provisions, agreeably to the general principles of Republican Government, as they shall think proper to render the Federal Constitution adequate to the exigencies of government and the preservation of the Union; and they are further directed, pursuant to the said Act of Congress, to report such alterations and provisions as may be agreed to by a majority of the United States represented in Convention, to the Congress of the United States, and to the General Assembly of this State."

FOURTH, NEW YORK.

The State of New York, by a joint resolution of her Legislature, passed the 6th of March, 1787, responded as follows:

"Resolved, That the Hon. Robert Yates, John Lansing, Jr., and Alexander Hamilton, Esqs., be, and they are hereby declared duly nominated and appointed Delegates, on the part of this State, to meet such Delegates as may be appointed on the part of the other States, respectively, on the second Monday in May next, at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress, and to the several Legislatures, such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the several States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union."

To these proceedings Governor Clinton, Governor of the State, officially certified in the following words:

"In testimony whereof I have caused the privy seal of the said State to be hereunto affixed this ninth day of May, in the eleventh year of the Independence of the said State."

FIFTH, NEW JERSEY.

The State of New Jersey responded as follows:

"To the Hon. David Brearly, William Churchill Houston, William Patterson, and John Neilson, Esqs., greeting:

"The Council and Assembly, reposing especial trust and confidence in your integrity, prudence, and ability, have, at a joint meeting, appointed you, the said David Brearly, William Churchill Houston, William Patterson, and John Neilson, Esqs., or any three of you, Commissioners, to meet such Commissioners as have been, or may be, appointed by the other States in the Union, at the City of Philadelphia, in the Commonwealth of Pennsylvania, on the second Monday in May next, for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof.

"In testimony whereof, the great seal of the State is hereunto affixed. Witness, William Livingston, Esq., Governor, Captain-General, and Commander-in-chief, in and over the State of New Jersey, and territories thereunto belonging, Chancellor and Ordinary in the same, at Trenton, the 23d day of November, in the year of our Lord, 1786, and of our Sovereignty and Independence the eleventh."

SIXTH, PENNSYLVANIA.

The State of Pennsylvania responded as follows:

"An Act appointing Deputies to the Convention, intended to be held in the City of Philadelphia, for the Purpose of revising the Federal Constitution.

"Sec. 1. Whereas, the General Assembly of this Commonwealth, taking into their serious consideration, the representations heretofore made to the Legislatures of the several States in the Union, by the United States in Congress assembled, and also weighing the difficulties under which the Confederated States now labor, are fully convinced of the necessity of revising the Federal Constitution, for the purpose of making such alterations and amendments as the exigencies of our public affairs require: And, whereas, the Legislature of the State of Virginia have already passed an Act of that Commonwealth, empowering certain Commissioners to meet at the City of Philadelphia, in May next, a Convention of Commissioners or Deputies from the different States; and the Legislature of this State are fully sensible of the important advantages which may be derived to the United States, and every of them, from co-operating with the Commonwealth of Virginia, and the other States to the Confederation, in the said design.

"Sec. 2. Be it enacted, and it is hereby enacted, by the Representatives of the freemen of the Commonwealth of Pennsylvania, in General Assembly met, and by the authority of the same, That Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimmons, James Wilson, and Gouverneur Morris, Esqrs., are hereby appointed Deputies from this State, to meet in the Convention of the Deputies of the respective States of North America, to be held at the City of Philadelphia, on the 2d day in the month of May next; and the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimmnons, James Wilson, and Gouverneur Morris, Esqrs., or any four of them, are hereby constituted and appointed Deputies from this State, 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 join with them in devising, deliberating on, and discussing, all such alterations and further provisions as may be necessary to render the Federal Constitution fully 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, will effectually provide for the same.

"Sec. 3. And be it further enacted by the authority aforesaid, That, in case any of the said Deputies hereby nominated shall happen to die, or to resign his or their said appointment or appointments, the supreme executive council shall be, and hereby are, empowered and required to nominate and appoint other person or persons, in lieu of him or them so deceased, or who has or have so resigned, which person or persons, from and after such nomination and appointment, shall be, and hereby are, declared to be vested with the same powers respectively as any of the Deputies nominated and appointed by this Act is vested with by the same; provided always, that the council are not hereby authorized, nor shall they make any such nomination or appointment, except in vacation and during the recess of the General Assembly of the State."

This Act passed December 30th,.1786. By a supplemental Act passed the 28th day of March, 1787, Dr. Franklin was appointed as an additional Delegate.

SEVENTH, DELAWARE.

The State of Delaware responded as follows:

"His Excellency, Thomas Collins, Esqr., President, Captain-General, and Commander-in-chief, of the Delaware State.

"To all to whom these presents shall come, Greeting: Know ye, that, among the laws of the said State, passed by the General Assembly of the same, on the 3d day of February, in the year of our Lord, 1787, it is thus enrolled: — In the eleventh year of the Independence of the Delaware State.

"An Act appointing Deputies from this State to the Convention proposed to be held in the City of Philadelphia, for the Purpose of revising the Federal Constitution.

"Whereas, the General Assembly of this State are fully convinced of the necessity of revising the Federal Constitution, and adding thereto such further provisions as may render the same more adequate to the exigencies of the Union; and, whereas, the Legislature of Virginia have already passed an Act of that Commonwealth, appointing and authorizing certain Commissioners to meet, at the City of Philadelphia, in May next, a Convention of Commissioners or Deputies from the different States; and this State being willing and desirious of cooperating with the Commonwealth of Virginia, and the other States in the Confederation, in so useful a design: —

"Be it, therefore, enacted by the General Assembly of Delaware, that George Read, Gunning Bedford, John Dickinson, Richard Basset, and Jacob Broom, Esqrs., are hereby appointed Deputies from this State, to meet in the Convention of the Deputies of other States, to be held at the City of Philadelphia, on the 2d day of May next; and the said George Read, Gunning Bedford, John Dickinson, Richard Basset, and Jacob Broom, Esqrs., or any three of them, are hereby constituted and appointed Deputies from this State, 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 Federal 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 5th Article of the Confederation of the said State, finally ratified on the 1st day of March, in the year 1781, 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 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.

"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 2d day of April, in the year of our Lord, 1787, and in the 11th year of the Independence of the United States of America."

EIGHTH, MARYLAND.

The State of Maryland responded as follows:

"An Act for the Appointment of, and conferring Powers on, Deputies from this State to the Federal Convention.

"Be it enacted by the General Assembly of Maryland, That the Hon. James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll, John Francis Mercer, and Luther Martin; Esqrs., be appointed and authorized, on behalf of this State, to meet such Deputies as may be appointed and authorized, by any other of the United States, to assemble in Convention at Philadelphia, for the purpose of revising the Federal system, and to join with them in considering such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an Act for that purpose, to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same; and the said Deputies, or such of them as shall attend the said Convention, shall have full power to represent this State for the purposes aforesaid; and the said Deputies are hereby directed to report the proceedings of the said Convention, and any Act agreed to therein, to the next Session of the General Assembly of this State."

NINTH, VIRGINIA.

The State of Virginia responded as follows:

"An Act for appointing Deputies from this Commonwealth to a Convention proposed to be held in the City of Philadelphia, in May next, for the purpose of revising the Federal Constitution.

"Whereas, the Commissioners who assembled at Annapolis, on the 14th day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectively for the Commercial interests of the United States, have represented the necessity of extending the revision of the Federal system to all its defects, and have recommended that Deputies, for that purpose, be appointed by the several Legislatures, to meet in Convention, in the City of Philadelphia, on the 2d day of May next, — a provision which was preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would, besides, be deprived of the valuable counsels of sundry individuals who are disqualified by the Constitution or laws of particular States, or restrained by peculiar circumstances from a seat in that Assembly: and whereas the General Assembly of this Commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made, from time to time, by the United States in Congress, particularly in their Act of the 15th day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question — whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that Union which they have cemented with so much of their common blood — or whether, by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish to its enemies an eventful triumph over those by whose virtues and valor it has been accomplished: And whereas the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the Citizens of this Commonwealth to unite with their brethren of the other States in establishing a Federal Government, cannot but be felt with equal force now as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions as may be necessary to secure the great objects for which that Government was instituted, and to render the United States as happy in peace as they have been glorious in war:

"Be it, therefore, enacted by the General Assembly of the Commonwealth of Virginia, That Seven Commissioners be appointed, by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized, as Deputies from this Commonwealth, to meet such Deputies as may be appointed and authorized by other States, to assemble in Convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an Act, for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.

"And be it further enacted, That, in case of the death of any of the said Deputies, or of their declining their appointments, the Executive is hereby authorized to supply such vacancies; and the Governor is requested to transmit forthwith a copy of this Act to the United States in Congress, and to the Executives of each of the States in the Union."

Under this Act, Deputies were appointed, as provided; at the head of the list of whom was placed George Washington.

TENTH, NORTH CAROLINA.

The State of North Carolina responded, as appears from the following Commission to her Deputies given by the Governor:

"To the Hon. Alexander Martin, Esq., greeting:

"Whereas, our General Assembly, in their late session, holden at Fayetteville, by adjournment, in the month of January last, did, by joint ballot of the Senate and House of Commons, elect Richard Caswell, Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, and Willie Jones, Esqrs., Deputies to attend a Convention of Delegates from the several United States of America, proposed to be held at the City of Philadelphia, in May next, for the purpose of revising the Federal Constitution:

"We do, therefore, by these presents, nominate, commissionate, and appoint you, the said Alexander Martin, one of the Deputies for and in behalf, to meet with our other Deputies at Philadelphia on the 1st of May next, and with them, or any two of them, to confer with such Deputies as may have been, or shall be appointed by the other States, for the purpose aforesaid: To hold, exercise, and enjoy the appointment aforesaid, with all powers, authorities, and emoluments, to the same belonging, or in any wise appertaining, you conforming in every instance to the Act of our said Assembly, under which you are appointed.

"Witness, Richard Caswell, Esq., our Governor, Captain-General, and Commander-in-Chief, under his hand and our seal, at Kinston, the 24th day of February, in the eleventh year of our independence, A. D. 1787."

Similar Commissions were given to each of the other Delegates appointed.

ELEVENTH, SOUTH CAROLINA.

The State of South Carolina responded as follows:

"By his Excellency, Thomas Pinckney, Esq., Govern.or and Commander-in- Chief, in and over the State aforesaid:

"To the HON. JOHN RUTLEDGE, Esq., greeting:

"By virtue of the power and authority invested by the Legislature of this State, in their Act passed the 8th day of March last, I do hereby commission you, the said John Rutledge, as one of the Deputies appointed from this State, to meet such Deputies or Commissioners as may be appointed and authorized by other of the United States to assemble in Convention, at the City of Philadelphia, in the month of May next, or as soon thereafter as may be, and to join with such Deputies or Commissioners (they being duly authorized and empowered) in devising and discussing all such alterations, clauses, articles, and provisions, as may be thought necessary to render the Federal Constitution entirely adequate to the actual situation and future good government of the Con. federated States; and that you, together with the said Deputies or Commissioners, or a majority of them, who shall be present (provided the State be not represented by less than two), do join in reporting such an act to the United States, in Congress assembled, as, when approved and agreed to by them, and duly ratified and confirmed by the several States, will effectually provide for the exigencies of the Union.

"Given under my hand and the Great Seal of the State, in the City of Charleston, this 10th day of April, in the year of our Lord 1787, and of the Sovereignty and Independence of the United States of America, the eleventh."

Signed by the Governor, and. countersigned by the Secretary.

TWELFTH, NEW HAMPSHIRE.

The State of New Hampshire responded, in the language of the following Act of her Legislature:

"An Act for appointing Deputies from this State to the Convention proposed to be holden in the City of Philadelphia in May, 1787, for the purpose of revising the Federal Constitution.

"Whereas, in the formation of the Federal Compact, which frames the bond of union of the American States, it was not possible, in the infant state of our Republic, to devise a system which, in the course of time and experience, would not manifest imperfections that it would be necessary to reform:

"And whereas, the limited powers, which, by the Articles of Confederation, are vested in the Congress of the United States, have been found far inadequate to the enlarged purposes which they were intended to produce; and whereas, Congress hath, by repeated and most urgent representations, endeavored to awaken this, and other States of the Union, to a sense of the truly critical and Alarming situation in which they may inevitably be involved, unless timely measures be taken to enlarge the powers of Congress, that they may thereby be enabled to avert the dangers which threaten our existence as a free and independent people; and whereas, this State hath been ever desirous to act upon the liberal system of the general good of the United States, without circumscribing its views to the narrow and selfish objects of partial convenience; and has been at all times ready to make every concession, to the safety and happiness of the whole, which justice and sound policy could vindicate:

"Be it therefore enacted, by the Senate and House of Representatives in General Court convened, that John Langdon, John Pickering, Nicholas Gilman, and Benjamin West, Esqs., be, and hereby are, appointed Commissioners; they, or any two of them, are hereby authorized and empowered, as Deputies from this State, to meet at Philadelphia said Convention, or any other place to which the Convention may be adjourned, for the purposes aforesaid, there to confer with such Deputies as are, or may be, appointed by the other States for similar purposes, and with them to discuss and to procure and decide upon the most effectual means to remedy the defects of our Federal Union, and to procure and secure the enlarged purposes which it was intended to effect, and to report such an Act to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."

From all these responses of the States, to the call for a Convention of the States, it clearly appears that the sole object of all was to change and modify the Articles of Confederation, so as better to provide for the wants and exigencies of "the Union," which must have meant the Union then existing, and which we have seen was a Union of Sovereign States. The object was not to change the Federative character of that Union. This is an important point to be kept constantly in view, and never lost sight of. The Convention was called with this sole view, and the call was responded to by every State with this sole view.

Under the call and appointment of Delegates, as we have seen, the Convention did meet in Philadelphia, on the second Monday in May (14th of that month), 1787. Washington, a Deputy or Delegate from the State of Virginia, was chosen the President of the Convention. The Convention remained in session until the 17th of September thereafter — four months and three days. It was assembled as a Convention of the States. The Delegates represented distinct, separate, and acknowledged Sovereign powers. The vote upon all questions was taken by States, without respect to the number of Delegates from the several States respectively. Here is the Journal of their proceedings from the day of their meeting to their adjournment.* The result of their deliberations and actions was such changes in the Federal Constitution as were set forth in the paper which they presented to the States. This paper is what has ever since been. known as the present Constitution of the United States. Now the great question that we have to consider is the nature and character of the alterations in the old fundamental law, or Constitution, the Articles of Confederation, which the new Constitution made. Is the Federative feature of "the Union" changed in it? This is the great question. If the Union, as it existed before, was a Compact between Sovereign States, as has been most conclusively shown, is there any thing upon the face of the proceedings of the Convention, or upon the face of the new Constitution, which shows, either expressly or by implication, that any chance of the character of the Union in this respect was either intended, contemplated, or, in fact, effected? Was there any change as to where ultimate Sovereignty and Paramount authority under our Institutions then rested or resided? Before the meeting of this Convention these were un. questionably acknowledged to dwell with the people of the States severally. Was any change in this particular effected by the new Constitution?

* Elliot's Debates, vol. i, pp. 139-318.

PROF. NORTON. Do you wish an answer to your question now?

MR. STEPHENS. Yes. It is best to have all points settled as we go.

PROF. NORTON. Then. for myself, I will say, that, as I understand it, there was a thorough and radical change effected in the new Constitution in the very particular you refer to, and such change as utterly overthrows the: whole theory which I clearly perceive it is your object to endeavor to establish, by the conclusions you are successively reaching. But what say you to adjourning for the present and resuming the subject hereafter?

MR. STEPHENS. Certainly A little relaxation will be quite agreeable to me. This, recollect, is Liberty Hall. The rules of the establishment are that all its inmates do just as they please. It is now about the usual time for me to take my accustomed evening walk. You, gentlemen, can all remain here and entertain yourselves with books, or in any other way you prefer, or join me in a stroll, just as your several inclinations lead.

JUDGE BYNUM. We have had enough of books for the I resent. I am for the walk.

PROF. NORTON. So am I.

MAJOR HEISTER. Well, I certainly have no disposition either to secede or to be seceded from. It is against my principles. So we will all join you in the walk.


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