which the free people of the states were to be represented, and to be represented according to the numbers of the inhabitants which their respective states contained, counting those held in servitude in a certain ratio only.

The general principles on which the powers of the national legislature were to be regulated were declared with a great degree of unanimity. That it ought to be invested with all the legislative powers belonging to the Congress of the Confederation was conceded by all. This was followed by the nearly unanimous declaration of a principle, which was intended as a general description of a class of powers that would require subsequent enumeration, namely, that the legislative power ought to embrace all cases to which the state legislatures were incompetent, or in which the harmony of the United States would be interrupted by the exercise of state legislation. But the committee also went much further, and without discussion or dissent declared that there ought also to be a power to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union, or any treaties made under the authority of the Union.'

The somewhat crude idea of making a negative on state legislation a legislative power of the national government shows that the admirable discovery had not yet been made of exercising such a control through the judicial department. Without such a control lodged somewhere, the national prerogatives could not be defended, however extensive they might be in theory. There had been, as Mr. Madison well remarked, a constant tendency in the states to encroach on the federal authority, to violate national treaties, to infringe the rights and interests of each other, and to oppress the weaker party within their respective jurisdictions. The expedient that seemed at first to be the proper remedy, and, as was then supposed, the only one that could be employed as a substitute for force, was to give the general government a power similar to that which had been exercised over the legislation of the colonies by the crown of England, before the Revolution; and there were some important members of the Convention who at this time thought that this power ought to be universal.' They

1 Madison, Elliot, V. 139.

'Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the other

considered it impracticable to draw a line between the cases proper and improper for the exercise of such a negative, and they argued from the correctness of the principle of such a power that it ought to embrace all cases.

But here the complex nature of the government which they were obliged to establish made it necessary to depart from the theoretical correctness of a general principle. The sovereignty of the states would be entirely inconsistent with a power in the general government to control their whole legislation. As the direct authority of the national legislature was to extend only to certain objects of national concern, or to such as the states were incompetent to provide for, all the political powers of the states, the surrender of which was not involved in the grant of powers to the national head, must remain; and if a general superintendence of state legislation were added to the specific powers to be conferred on the central authority, there would be in reality but one supreme power in all cases in which the general government might see fit to exercise its prerogative. The just and proper sphere of the national government must be the limit of its power over the legislation of the states. In that sphere it must be supreme, as the power of each state within its own sphere must also be supreme. Neither of them should encroach upon the prerogatives of the other; and while it was undoubtedly necessary to arm the national government with some power to defend itself against such encroachments on the part of the states, there could be no real necessity for making this power extend beyond the exigencies of the case. Those exigencies would be determined by the objects that might be committed to the legislation of the central authority; and if a mode could be devised, by which the states could be restrained from interfering with or interrupting the just exercise of that authority, all that was required would be accomplished.'

But to do this by means of a negative that was to be classed

hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler strenuously opposed this plan.

1 Accordingly, a proposition to extend the negative on state legislation to all cases received the votes of three states only, viz., Massachusetts, Pennsylvania, and Virginia.

among the legislative powers of the new government, was to commit the subject of a supposed conflict between the rights and powers of the state and the national governments to an unfit arbitration. Such a question is of a judicial nature, and belongs properly to a department that has no direct interest in maintaining or enlarging the prerogatives of the government whose powers are involved in it.

But the framers of the Constitution had come fresh from the inconveniences and injustice that had resulted from the unrestrained legislative powers of the states. Some of them believed it, therefore, to be necessary to make the authority of the United States paramount over the authority of each separate state; and a negative upon state legislation, to be exercised by the legislative branch of the national government seemed to be the readiest way of accomplishing the object. Some of the suggestions of the mode in which this power was to operate strike us, at the present day, as singularly strange. No less a person than Mr. Madison, in answer to the objections arising from the practical difficulties in subjecting all the legislation of all the states to the revision of a central power, thought at this time that something in the nature of a commission might be issued into each state, in order to give a temporary assent to laws of urgent necessity. He suggested also that the negative might be lodged in the Senate, in order to dispense with constant sessions of the more numerous branch.

But the radical objection to any plan of a negative on state legislation, as a legislative power of the general government, was, that it would not in fact dispense with the use of force against a state in the last resort. If, after the exercise of the power, the state whose obnoxious law had been prohibited should see fit to persist in its course, force must be resorted to as the only ultimate remedy. How different, how wise, was the expedient subsequently devised, when the appropriate office of the judicial power was discerned a power that waits calmly until the clashing authorities of the state and the nation have led to a conflict of right or duty in some individual case, and then peacefully adjudicates, in a case of private interest, the great question, with which of the two governments resides the power of prescribing the paramount rule of conduct for the citizen! Disobedience on the part of the

state may, it is true, still follow after such an adjudication, and against an open array of force on the one side nothing but force remains to be employed on the other. But the great preventive of this dread necessity is found in the fact that there has been an adjudication by a tribunal that commands the confidence of all, and in the moral influence of judicial determinations over a people accustomed to submit not only their interests, but their feelings even, to the arbitrament of juridical discussion and decision.

TABLE

EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE CENSUS OF 1790.

N.B. In this abstract Maine is not included in Massachusetts, nor Kentucky and Tennessee in the states from which they were severed.

Total population of the eight states in 1790, in which slavery had been or was afterwards abolished, 1,845,595.

Total population of the five states in 1790, in which slavery existed and continued to exist, 1,793,407.

CHAPTER XIX.

CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.

THE Construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion.

The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department-vigor, despatch, and responsibility-could be found in three persons as well as in one. Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny.

But this point connected itself with the question whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought