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atives 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 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

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.

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 sug gested 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

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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.

New Hampshire,
Massachusetts,
Rhode Island,
Connecticut,
New York,
New Jersey,
Pennsylvania,

Delaware,

Maryland,
Virginia,
North Carolina,
South Carolina,

Georgia,

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630

5,463

3,469

2,801

4,654

2,762

6,537

3,899

8,043

12,765

4,975

1,801

398

158

952

2,759

21,324

11,423

3,737

8,887

Total.

141,899

378,717

69,110

238,141

340,120

314,142

169,954

424,099

46,310

208,649

103,036

442,115

293,427

288,204

100,572

393,751

140,178

107,094

249,073

52,886

29,264

82,548

Aggregate,

2,898,172

58,197

682,633

3,639,002

Total population of the eight States in 1790, in which slavery had been or has since been abolished, 1,845,595.

Total population of the five States in 1790, in which slavery existed, and still exists, 1,793,407.

184,139

434,373

59,096

319,728

748,307

CHAPTER III.

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

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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 to be given, it was evident from the first that its necessity was well understood by the larger part of the assembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Constitution, the executive would need some check against unconstitutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was fa

VOL. II.

8

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