the advantages of the different systems, in which that recommended by the Committee of the Whole was called "national," and the propositions of New Jersey, "federal." The distinction between a federal and national government, which most of the members of the Convention seemed to entertain, was thus stated by Governor Randolph: "The true question is, whether we shall adhere to the federal plan or introduce the national plan. The insufficiency of the former has been fully displayed by the trial already made. There are but two modes by which the end of a general government can be attained: the first, by coercion, as proposed by Mr. Patterson's plan; the second, by real legislation, as proposed by the other plan. Coercion he pronounced to be impracticable, expensive, cruel to individuals. It tended, also, to habituate the instruments of it to shed the blood, and riot in the spoils of their fellow-citizens, and consequently train them up for the service of ambition. We must resort, therefore, to a national legislation over individuals; for which Congress are unfit. To vest such power in them would be blending the legislative with the executive, contrary to the received maxim on this subject. If the union of these powers, heretofore, in Congress has been safe, it has been owing to the general impotency of that body. Congress are, moreover, not elected by the people, but by the legislatures, who retain even a power of recall. They have, therefore, no will of their own; they are a mere diplomatic body, and are always obsequious to the views of the States, who are always encroaching on the authority of the United States. A provision for harmony among the States, as in trade, naturalization, etc.; for crushing rebellion, whenever it may rear its crest; and for certain other general benefits, must be made." "The powers for these purposes can never be given to a body inadequate as Congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for, notwithstanding what has been said to the contrary, his own experience satisfied him that a rooted distrust of Congress pretty generally prevailed. A national government alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establishing one. After this select experiment, the people will yield to despair." 14 Madison said, however: "Much stress has been laid by some gentlemen on the want of 14 Madison Papers. Elliot's Debates, 2d ed., vol. v, p. 198. power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objection. One characteristic was, that, in a federal government, the power was exercised not on the people individually, but on the people collectively, on the states. Yet in some instances, as in piracies, captures, etc., the existing Confederacy and in many instances the amendments to it proposed by Mr. Patterson, must operate immediately on individuals. The other characteristic was, that a federal government derived its appointments not immediately from the people, but from the States which they respectively composed. Here, too, were facts on the other side. In two of the states, Connecticut and Rhode Island, the delegates to Congress were chosen, not by the legislatures, but by the people at large; and the plan of Mr. Patterson intended no change in this particular.” 15 Dickinson from New Jersey moved to postpone the first resolution of Mr. Patterson's plan in order to take up the following: "That the Articles of Confederation ought to be revised and amended, so as to render the government of the United States adequate to the exigencies, the preservation, and the prosperity of the Union." 16 The postponement was agreed to by ten States, Pennsylvania being divided; but the resolution after debate was defeated by six States to four. Connecticut, New York, New Jersey, Delaware, ay, 4; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 6; Maryland, divided. The Committee of the Whole at which the question had been discussed, finally agreed to rise and report the propositions as previously adopted without alteration. Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3; Maryland divided.18 The first resolution "that a national government ought to be established, consisting of a supreme legislative, executive and judiciary," was then taken up in the Convention. "Mr. Ellsworth, seconded by Mr. Gorham, moves to alter it, so as to run that the government of the United States ought to consist of a supreme legislative, executive and judiciary.' This alteration, he said, 15 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 206. 17 Ibid., p. 206. 16 Ibid., p. 198. would drop the word national, and retain the proper title the United States.' He could not admit the doctrine that a breach of any of the Federal Articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished, also, the plan of the Convention to go forth as an amendment of the Articles of the Confederation, since, under this idea, the authority of the legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification, several succeeding conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up constitutions. "Mr. Randolph did not object to the change of expression, but apprised the gentleman who wished for it, that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. 19 "The motion of Mr. Ellsworth was acquiesced in, nem. con. Subsequently, when the clause defining treason was considered, Luther Martin moved an amendment. "Provided, that no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States, under the authority of one or more of the said States, shall be deemed treason, or punished as such; but in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and of nations." The proposition seems to have had no other supporter.20 The fact that in the Federal and State conventions speakers repudiated the idea of the application of coercion against the States does not support the view that the Federal Government cannot suppress a rebellion supported by the officers and people of a State. It appears from these debates as well as elsewhere in these proceedings, that, forewarned by the experience of the Confederation, when States refused obedience to the laws of Congress, and suggestions were made of their coercion by armed force, the 19 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 214. 20 It is only mentioned in Martin's Letter to the Maryland Legislature. Elliot's Debates, 2d ed., vol. i, p. 383. delegates intended to frame a new form of government which would enforce the Federal laws by treating the attempted hostile State legislation as a nullity and applying force, not to the State government, but to the individual citizens of the State who resisted, even though they might be State officials. It was said by Ellsworth, in the Connecticut Convention: "We see how necessary for the Union is a coercive principle. No man pretends the contrary; we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the States, one against the other. I am for coercion by law that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity." "21 So Madison said in the Virginia Convention, when defending the clause which gives to Congress power concurrent with the States to call forth the militia to suppress insurrections and repel invasions: 22 "A concurrence in the former case is necessary, because a whole State may be in insurrection against the Union." 28 Luther Martin wrote to the Maryland Convention : "The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to have recourse to the sword; in which case, the proposed form of government declares that the State, and every one of its citizens who acts under its authority are guilty of a direct act of treason." 24 It seems plain, therefore, that the Convention determined, after full discussion, to adopt a plan national in form; but, to conciliate prejudice, avoided the use of the name. Since then until late years, writers judicial, political, and academical have usually eschewed the word, national, and substituted for it "federal." Although since the Civil War the term, National Government, has come into common use, we still ordinarily speak of Federal 21 Elliot's Debates, 2d ed., vol. ii, p. 197. See the remarks of Roger Sherman in the Federal Convention. Ibid., vol. v, p. 450. 22 Constitution, Article I, Section 8. 23 Elliot's Debates, 2d ed., vol. iii, p. 424. 24 Ibid., vol. i, p. 382. practice in the Federal courts. But as appears by the Congres sional resolution quoted at the beginning of this section, as well as in the debates in the Convention, the phrase, federal, is not inconsistent with, national. § 18. History of the Preamble. The change in the nature of the government of the United States from the league embraced in the Articles of Confederation to a Constitution indissoluble by law appears not only in the manner in which the Constitution operates, but also in its preamble. "WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." The preamble to the instrument which the Constitution abrogated is as follows: "Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. The third of the Articles of Confederation is: "The said States hereby severally enter into a firm league of friendship with each other, for their common 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." The second Article of the New England Confederation of 1643 provided that: "The said United Colonies, for themselves and their posterities, do joyntly and severally, hereby enter into a firme and perpetuall league of friendship and amytie, for offence and defence, mutuall advise and succour, upon all just occations both for preserveing and propagateing the truth and liberties of the Gospel, and for their owne mutuall safety and wellfare." 1 § 18. 1 Preston's Documents Illustrative of American History, p. 88. |