stances. They had not only the difficult task to perform,* of forming a Constitution for a great country; but they had to do this by the union or merging of independent sovereign States. The members not only differed in their own views, but they had no power of final action; their province being very similar to that of a committee charged with drafting a bill upon a given subject, to be afterwards submitted to the House. The Constitution framed by the Convention, had to pass through the severe ordeal of the separate State Conventions; and by a provision of the seventh article, the ratification of nine States was necessary to give it effect; and then only between the States so ratifying the same. This provision was in violation of the Articles of Confederation, by which the assent of all the States was required to make amendments. As all the States under the Confederation were sovereign, and the people had become accustomed to this independent equality, any proposition to reduce, either the importance of all, or the relative importance of the smaller States, would be certain to meet with the most determined opposition in the separate State Conventions.

Statesmen are not always able to do what they would; and they are, therefore, forced by circumstances, to either do nothing, or to do the best they can. The times were perilous, and the necessity for action most imperative; and the best minds in the Convention were so trammelled, and so compelled to act against their better judgment, that they were not able to accomplish as much, perhaps, as those of inferior capacity, but whose views were more in harmony with State pride and local jealousy.

§ 3. The same subject further considered.

The fear that the Constitution would be rejected by the separate States, and of the great perils likely to follow such a

* In his disquisition on government, Mr. Calhoun has these just and forcible remarks: "Instead of a matter of necessity, it is one of the most difficult tasks imposed on man to form a Constitution worthy of the name; while to form a perfect one-one that would completely counteract the tendency of government to oppression and abuse, and hold it strictly to the great ends for which it is ordained-has thus far exceeded human wisdom, and possibly ever will. From this another striking difference results. Constitution is the contrivance of man, while government is of Divine ordination. Man is left to perfect what the wisdom of the Infinite ordained as necessary to preserve the race." (Works of Calhoun, vol. i., p. 8.)

misfortune, no doubt had a serious and often a controlling influence over the members of the Convention.* They knew that in each of the separate State Conventions, all the elements of opposition would have full scope for their exercise, and that a rejection by five States only would be entire defeat. In these separate State Conventions, State pride, local attachments, and an unreasonable dread of the loss of liberty, would effectually defeat any strong theory of government. The people of America had felt, more in anticipation than in practice, the unlimited powers claimed over them by the mother country. The masses had not had time to fully comprehend the true character of their changed condition. The powers which they had feared, were not only without limit, but they were exercised by a country beyond seas; in whose councils they had no representative voice, and the interests of whose people were widely different from, and even antagonistic to, their own. They had passed through revolution, and they were now placed in the new position of re-organization. During the progress of the Revolution, and for years before, they had been alone taught

* An examination of the proceedings of the Convention will show the influence which the fear of rejection exercised upon the minds of members. The plan of proceedings adopted by that body was for members to introduce their propositions in the form of resolutions. Edmund Randolph of Virginia, on the 29th May, 1787, (Journal, p. 68,) introduced a series of resolutions, and a part of the 6th resolution of this series gave Congress the power "to negative all laws passed by the several States, contravening, in the opinion of the national legislature, the articles of union, or any treaty subsisting under the authority of the Union." This proposition was agreed to, May 31, (Journal, 87.) Mr. Pinckney, of South Carolina, on the 6th of June, (Journal, 104,) gave notice of a motion for a reconsideration, which motion was not agreed to, June 8, (Journal, 107.) The resolutions of Mr. Randolph, as amended and agreed to, are given in full, (Journal 134,) and this clause is included in the words of the original. Afterwards the proposition was not agreed to by the following vote: Yeas-Massachusetts, Virginia, and North Carolina

Nays-Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, and Georgia

7

The testimony of M. Gouverneur Morris, upon whose motion the third section of the fourth article of the Constitution was introduced, is very strong. In a letter written in 1803, he said:

'In wording the third section of the fourth article, I went as far as circumstances would permit, to establish the exclusion. Candor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposition would have been made." (3 Mor. Wri., 192.)

It is not at all surprising that so many difficulties of construction have arisen, when those who framed the Constitution candidly admit, that the fear of opposition made them purposely clothe their ideas in ambiguous terms.

to resist power; but now they were called upon to bestow it upon their own Government. They did not seem to fully understand the fact, that even the same powers in their own Government would be less dangerous to their liberties, than in that of England. They had, very naturally, under the circumstances, an extreme dread of power. It was true, that the Confederation had most signally failed; but the old habits of thought and feeling were still powerful. An unreasonable confidence in human nature, and an exaggerated estimate of the capacity and fidelity of the States, was the great evil of that day, and has been ever since. The architects who framed the Constitution, were compelled to model the work according to the existing views of others.

The following extracts from the fifteenth number of the Federalist, by Hamilton, will place this subject in a clear and strong light:

"It is true, as has been before observed, that facts too stubborn to be resisted, have produced a species of general assent to the abstract proposition, that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principle that can give it a chance of success. While they admit that the Government of the United States is destitute of energy, they contend against conferring upon it those powers that are requisite to confer that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of Federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio.”

"There was a time when we were told that breaches, by the States, of the regulations of the Federal authority, were not to be expected; that a sense of common interest would preside. over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all

times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements. to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude and greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number, than when it is to fall upon a single one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed, into improprieties and excesses, for which they would blush in a private capacity."

§ 4. The radical vice of the Confederation practically continued in the Constitution.

"The great and radical vice, in the construction of the existing Confederation, is in the principle of LEGISLATION for STATES or GOVERNMENTS in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist."-Hamilton.

This was the inherent vice in the former theory. As already stated, the fundamental vice in our existing theory, is the attempt to divide, between the Federal and State Governments, that supreme element or principle, which we call sovereignty. These two vices, in their ultimate practical results, are much the same. They differ in degree, and in the period of time required to plainly develop their legitimate tendencies; but they are still the same in practical effect.

Under our Constitutional theory, the Federal Government is one' of delegated limited powers; while the powers of the separate State Governments consist of those reserved. Both the Federal and State Governments are Governments of limited powers.

The Constitution assumes to define the line of separation between the delegated and reserved powers. But this task, in the

very nature of things, is one of paramount difficulty. Conceding that the framers of the instrument had, in all cases, a clear conception of that which they intended to convey to others; still they were compelled to clothe their ideas in human language. Mr. Madison, in the thirty-seventh number of the Federalist, has very forcibly expressed himself in reference to the great difficulty of correct definition. He says:

"The use of words is to express ideas. Perspicuity therefore requires, not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas. Hence it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be conceived, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated."

And Webster, in his reply to Hayne, very justly said:

"No definition can be so clear as to avoid possibility of doubt; no limitation so precise as to exclude all uncertainty."

The Constitution is a very concise instrument, and yet within its narrow limits are contained the definitions and limitations of our complex theory of government. From its nature as a fundamental law, it could only lay down general principles in general terms. It could only deal in generals, and not in particulars.

The right to determine the extent of its own powers in the last resort, must, of necessity, reside either in the General Gov

* A distinction is often taken between the assumed right of Nullification and Secession. But it would seem that they both substantially rest upon the same basis, namely: the alleged right of each separate State to determine for itself, in the last resort, the extent of its own powers; and, by necessary consequence, the extent of the delegated powers of the Federal Government. It being true that the action of the General Government, beyond its delegated powers, is null and void; it follows, of