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States, which has already been referred to in general terms, but for which we must look still more closely into the nature of the system proposed. In that system, the legislative authority was to reside in the concurrent action of a majority of the people and a majority of the States. How could the State government of Delaware, for example, confer upon a majority of the representatives of the people of all the States, and a majority of the representatives of all the States, that might adopt the new Constitution, power to bind the people of Delaware by a legislative act, to which their own representatives might have refused their assent? The State government was appointed and established for the purpose of binding the people of the State by legislative acts of their own servants and immediate representatives; but not for the purpose of consenting that legislative power over the people of that State should be exercised by agents not delegated by themselves. Yet such a consent was involved in the new system now to be proposed, and was, in some way by some safe and competent method to be obtained. to be obtained. A legislative power was to be created by the assembling in one branch of the representatives of the people of all the States, in proportion to their numbers, and in the other branch by assembling an equal number of representatives of each State, without regard to its numbers of people. The authority of law, upon all subjects that might be committed to this legislative power, was to attend the acts of concurring majorities in both branches, even against the separate and adverse

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will of the minority. It was impossible to rest this authority upon any other basis than that of the ratification of the system by the people of each State, to be given by themselves in primary assemblies, or by delegates expressly chosen in such assemblies, and appointed to give it, if they should see fit. A system founded on the consent of the legislatures would be a treaty between sovereign States; a system founded on the consent of the people would be a constitution of government, ordained by those who hold and exercise all political power."

There were not wanting, however, strong advocates of a reference to the State legislatures; and the votes of three of the States were at first given for that mode of ratifying the Constitution; but the other plan was finally adopted with nearly unanimous consent.2

1 There seems to be a sound distinction between the two, which was pointed out by Mr. Madison. He said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league, or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a [State] law violating a treaty ratified by a pre-existing [State] law might be respected by the judges as a law, though an unwise or perfidious A [State] law violating a


constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties was, that a breach of any one article by any of the parties freed the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact had always been understood to exclude such an interpretation." Elliot, V. 355, 356.

2 Connecticut, Delaware, and Maryland voted for an amendment to the original resolution, which, if adopted, would have submitted the Constitution to the State

Still, the resolution under consideration contained a feature which wisely provided for the assent of the existing Congress to the changes that were to be made by the establishment of the new system. It proposed that the plan of the new Constitution should be first submitted to Congress for its approbation, and that the legislatures of the States should then recommend to the people to institute assemblies to consider and decide on its adoption. These steps were to be taken, in pursuance of the course marked out when the Convention was called. The resolution of Congress, which recommended the Convention, required that the alterations which it might propose should be "agreed to in Congress and confirmed by the States"; and such was the tenor of the instructions given to the delegates of most of the States. This direction would be substantially complied with, if the legislatures, on receiving and considering the system, should recommend to the people to appoint representative bodies to consider and decide on its adoption, and the people should so adopt and ratify it.'

The topics covered by the report of the committee of the whole had thus been passed upon in the Convention, and the outline of the Constitution had been framed. There remained only three subjects on which it would be necessary to act in order to

legislatures. The resolution to refer it to assemblies chosen for the purpose by the people, was subsequently adopted, with the dissent of one State only, Delaware.



1 For the history of the proceedings relating to the institution of the national Convention, see Ante, Vol. I. Book III. Chap. VI.

provide for a complete scheme of government. It was necessary to determine the number of senators to which each State should be entitled; to ascertain the qualifications of members of the government; and to determine at what place the government should be seated.

The number of senators was not agreed upon at the time when the principle of an equal representation of the States in the Senate was adopted; and it had not been determined in what method they were to vote. It was now settled that the Senate should consist of two members from each branch, and that they should vote per capita. To this ar rangement one State only dissented. The vote of Maryland was given against it, through the influence of Luther Martin, who considered this method of voting a departure from the idea of the States being represented in the Senate. But this objection was obviously unsound; for although, by this method of voting, the influence of a State may be divided, its members have the power to concur, and to make the vote of the State more effectual than it would be if it had only a single suffrage.

The subject of the qualifications to be required of the executive, the judiciary, and the members of both branches of the legislature, went to the committee of detail in a form which was subsequently modified in a very important particular It was at first proposed,' that landed property, as well as citizenship in the United States, should be embraced in 1 By Mason.

the qualifications. But there were solid objections to this requirement, founded on the circumstances of the country and the nature of a republican constitution. So far as the people of the United States could be said to be divided into classes, the principal divisions related to the three occupations of agriculture, commerce, and manufactures of all kinds, including in the latter all who exercised the mechanic As a general rule, it was supposed at that time to be true, that the commercial and manufacturing classes held very little landed property; and that although they were much less numerous than the agricultural class, yet that they were likely to increase in a far greater ratio than they had hitherto. Practically, therefore, to require a qualification of landed property, would be to give the offices of the general government to the agricultural interest. These considerations led the Convention, by a nearly unanimous vote, to reject the proposition for a landed qualification.1

Very serious doubts were also entertained, whether, in constructing a republican constitution, it was proper to pay so much deference to distinctions of wealth as would be implied by the adoption of any property qualification for office. There are two methods in which the interests of property may be secured, in the organization of a representative government. It may be required as a qualification, either of the elector or the elected, that the individual shall possess a certain amount of property. But 1 Maryland alone voted to retain it.

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