tee went on to declare that the basis of representation ought to include the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years; and they then added to the population thus described three fifths of all other persons not comprehended in that description, except Indians not paying taxes. The proportion of three fifths was borrowed from a rule which had obtained the sanction of nine States in Congress, in the year 1783, when it was proposed to change the basis of contribution by the States to the expenses of the Union from property to population.' At that time, the slaveholding States had consented that three fifths of their slaves should be counted in the census which was to fix the amount of their contributions; and they now asked that, in the apportionment of representatives, these persons might still be regarded as inhabitants of the State, in the same ratio. The rule was adopted in the committee, with the dissent of only two States, New Jersey and Delaware; but on the original question of substituting an equitable ratio of representation for the equality of suffrage that prevailed under the Confederation, New York united with New Jersey and Delaware in the opposition, and the vote of Maryland was divided.

The next step was to settle the rule of suffrage in the Senate; and although it was earnestly contended

1 Ante, Vol. I. Book II. ch. III. p. 213, notę 2, where the origin

of the proportion of three fifths is explained.

that the smaller States would never agree to any other principle than an equality of votes in that body,' it was determined in the committee, by a vote of six States against five, that the ratio of representation should be the same as in the first branch.2

Thus it appears that originally a majority of the States were in favor of a numerical representation in both branches. The three States of Virginia, Pennsylvania, and Massachusetts, the leading States in population, and with them North Carolina, South Carolina, and Georgia, found it at present for their interest to adopt this basis for both houses of the national legislature. It was a consequence of the principle of numerical representation, that the slaves should be included; and it does not appear that at this time any delegate from a Northern State interposed any objection, except Mr. Gerry of Massachusetts, who regarded the slaves as "property," and said that the cattle and horses of the North might as well be included. But the State which he represented was at this time pressing for the rights of population, and for a system in which population should have its due influence; and her vote, as well as that of Pennsylvania, was accordingly given for the principle which involved an admission of the slaves into the basis of representation, and for the proportion which the slave States were willing to take.

1 By Mr. Sherman and Mr. Ellsworth.

2 Massachusetts, Pennsylvania, Virginia, North Carolina, South

VOL. II.

7

Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, Delaware, Maryland, no, 5. Elliot, V.

182.

These transactions in the committee of the whole are quite important, because they show that the original line of division between the States, on the subject of representation, was drawn between the States having the preponderance of population and the States that were the smallest in point of numbers. When, and under what circumstances, this line of division changed, what combinations a nearer view of all the consequences of numerical representation may have brought about, and how the conflicting interests were finally reconciled, will be seen hereafter. What we are here to record is the declaration of the important principle, that the legislative branch of the government was to be one in 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 farther, 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.1

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

1 Madison, Elliot, V. 139.

power ought to be universal. They 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 prerog

1 Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the other hand, Mr. Williamson,

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