158

THE TAXING POWER.

which might one day produce a consolidation of government there would be an insuperable objection to it, but as it depended upon the State governments for a House of Representatives, for a Senate and for a President, he thought that the danger was unreal, the whole could never swallow up the members.1 As in other States so here the Anti-Federalists found nothing to which they could give their approval in that portion of the Constitution which declares the powers of Congress.2 With Spencer of Anson, they preferred quotas to taxes and imposts, though Spaight clearly showed that a government cannot exist without certain adequate funds, and that requisitions could not be depended upon.*

McDowall saw in the taxing power the prospect of an army of tax-gatherers and of a people despoiled of their property. Two governments authorized to tax could not exist together; one must submit, therefore, the State governments must suffer. Goudy asserted that because the people of the State had no gold or silver, or substantial money, with which to pay taxes, the enormous taxing powers of Congress would destroy their liberties, and most of the Anti-Federalists agreed with McDowall, that paper money had saved the country and that to deprive the people of it would trespass on their rights."

6

Equally objectional to McDowall was the clause fixing a limit to the slave trade. Spaight explained that it was a compromise between the North and the South; South Carolina and Georgia had insisted on the clause

1 Id., 59.

2 Article I, Section 8.

3 Elliot, IV, 75-77.

4 Id., 82.

5 Id., 87.

• Id., 93.

7 Id., 88.

"MIGRATION" AND "IMPORTATION" OF SLAVES. 159

expecting to fully supply themselves with slaves during the next twenty years, but this explanation did not satisfy. Iredell pronounced the slave trade inconsistent with the rights of humanity, and declared that its entire abolition would give him the greatest pleasure. By rejecting the Constitution, the evil would not be remedied, whereas, by ratifying it, the trade must cease after twenty years, if Congress should so declare, whatever particular States might wish. Georgia and South Carolina had insisted on the clause, as it would give them opportunity to make up the loss of their slaves, incurred during the war. Galloway wished an end put to the trade, but instead of laying a tax, a bounty should be offered to encourage foreigners to come to the State; yet he feared that the clause meant the manumission of slaves, and he declared that it would be impossible for the white people of the State to be happy if the blacks after enfranchisement were to stay among them.1

At this Iredell pointed out the distinction between the words "migration" and "importation" in the clause: the first meaning persons coming into the State as free persons; the last extending to slaves only,2 and he particularly denied the correctness of Galloway's interpretation that the clause would empower Congress to free the slaves already in the country.3 The Anti-Federalists hurried the proceedings along, not even offering observations on many parts of the Constitution. This ominous precip

1 Compare this opinion with the defense in North Carolina at the time of the adoption of the Fourteenth Amendment, for an account of which see post, Vol. III, pp. 308-315.

2 Compare a discussion of the same point at the time of the admission of Missouri in 1820; for an account of which see my Constitutional History of the American People, 1776-1850, Vol. I, 274275. Also post, pp. 360-377.

* Elliot, IV, 101-102.

itancy called forth a protest from Davie, who urged a freer and fuller discussion and demanded the cause of the silence and gloomy jealousy of the opposition.1 But its general and rather sullen feeling was that discussion was a waste of time. Joseph Taylor objected to giving Congress the power to determine the time of choosing the presidential electors and of fixing the same day of election throughout the United States, for the army might be employed to compel the electors to vote at the pleasure of the government. To this astonishing objection Iredell replied, that should the time of elections be different in different States, the electors chosen in one might go State to State and thus choose the President through undue influence. The method proposed would entirely prevent corrupt combination.

from

Governor Johnston was in doubt whether by the Constitution the electors were to be chosen by the people at large, or to be appointed by the State legislatures; to which Maclaine answered, that the State legislatures might direct in what manner the electors should be chosen and thus direct it to be done by the people at large,2 and Spaight added, as a specific answer to Taylor's objection, that, under the Constitution, Congress might prolong an election to seven years; that the power could be exercised properly only by one general superintending government; that different times of election and different times of choosing electors would produce hopeless confusion, to avoid which the provision had been inserted in the Constitution.3

The powers of the President, which had called forth

1 Id., 103.

2 Id., 104-105. For the manner of appointing electors from 1789 to 1868, see Vol. I, p. 570.

8 Id., 106.

so many objections in other conventions, were read without remark, which led Iredell to observe that it was too important to be passed by in silence, and he proceeded to explain and defend the executive power.1 But his argument only led an Anti-Federalist member to remark that he considered this portion of the Constitution defective, especially because it gave the President power to command the army and navy, nor did Spaight's explanation, that the power of raising and supporting armies, rested wholly with Congress, seem to remove his objections. The President's relations to the Senate, in the nomination of officers, was objected to as a clear violation of the true principles of government. He should have a standing council and not be under the necessity of forming a connection with so powerful a body as the Senate, or be content to put himself at the head of its leading members.2

Even more objectionable was the association of the Senate and the President in a treaty-making power by which, as McDowall expressed it, the lives and property of the people would be in the hands of eight or nine men. In vain did Davie explain that all civilized nations had concurred in considering treaties as paramount to ordinary acts of legislation; that the power of making them had been placed in other countries in the executive department, and that to prevent delay and party violence as well as to secure the requisite information the method proposed by the Constitution had been adopted. The President and the Senate thus being associated in the treaty-making power the danger had been obviated of entrusting it solely to the executive, of which power the people were deeply jealous; and also by denying it to the

1 Id., 107-114.

2 Id., 116.

162

SEPARATION OF POWERS.

Senate alone they had made it impossible for a few States to ratify a treaty which might be objectionable to other States. It became necessary, therefore, to give the States an absolute equality in making treaties. True, Montesquieu had laid down the separation of the powers of government as a maxim, but an absolute separation was impossible. In the government of North Carolina2 the executive and judiciary had a negative similar to that which it was proposed to give to the President and the arrangement had been attended with the most happy effects.

The maxim meant no more than that the whole legislative, executive and judiciary powers should not be exclusively blended in any one instance. Spaight did not omit to point out the inconsistency of Anti-Federal objections to vesting the treaty-making power in the Senate instead of in the House, for the Senate represented the sovereignty of the States; and it was a certain means of preventing a consolidation of the government, if whatever might affect the States in their political capacity was left entirely to them.3 But McDowall, who had objected to the clause, observed at the conclusion of Spaight's explanation, that he was of the same opinion as before. And Spencer added that he thought no more argument could be used to show that the Constitution properly vested the treaty-making power.*

Equally inflexible were the objections to the judiciary. The exclusive jurisdiction of federal courts must prove oppressive in its operation. Perhaps a Bill of Rights

1 Compare Massachusetts Constitution, 1780, Part I, Article XXX; Kentucky Constitution, 1792, Article I, Sections 1 and 2, also 1799, Id.

2 New York Constitution, 1777, Article III; Elliot, V, 426. 3 Id., 123.

4 Id., 131.