CHAPTER XVII.

PRELIMINARY CONSIDERATIONS.-ORGANIZATION OF THE CONVENTION. -POSITION OF THE STATES.-RULE OF INVESTIGATION.

HAVING sketched the struggles, the errors, and the disappointments of the earlier years of our constitutional history, I now come to consider the proceedings of that memorable assembly to which they ultimately led, in order to describe the character of an era that offered the alternatives of a more vigorous nationality and final dissolution. How the people of the United States were enabled to seize the happy choice of one of these results, and to escape the disasters of the other, is to be learned by examining the mode in which the Constitution of the United States was framed.

In approaching this interesting topic, I am naturally anxious to place myself at once on a right understanding with the readerto apprise him of the purpose of the discussions to which he is invited, and to guard against expectations which might be entertained, but which will not be fulfilled.

In a work designed for general and—as I venture to hope it may prove for popular use, it would be out of place, as it certainly would be impracticable within the limits of a single volume, to undertake the explanation and discussion of all those particular questions of construction that must constantly arise under almost every clause and feature of such an instrument as the Constitution of the United States, and which, as our whole experience has taught us, are fruitful both of extensive debate and of wide as well as honest diversities of opinion. I shall consider questions of construction only so far as may be necessary to elucidate my subject; for I propose, in writing the history of the formation of the Constitution, to describe rather those great modifications in the principles and structure of the Union that took place in the period at which we have now arrived in the course of this work; to state

the essential features of the new government; and to trace the process by which they were evolved from the elements to which the framers of that government resorted.

Happily for us, the materials for such a description are ample. The whole civil change which transformed the character of our Union, and established for it a national government, took place peacefully and quietly, within a single twelvemonth. It was attended with circumstances which enable us to ascertain its character with a high degree of certainty. The leading purposes that were entertained and carried out were not left to the conjecture of posterity, but were recorded by deliberative assemblies, whose acts of themselves expressed and ascertained the objects and intentions of the national will. First framed by an assembly in which the states participating in the change were fully represented, and subsequently debated and ratified in conventions of the people in the separate states, the general nature and design of the Constitution may be traced and understood without serious difficulty.

But to the right understanding of its nature and objects a careful examination of the proceedings of the national Convention is, in the first place, essential. Before we enter, however, upon this examination, there are certain preliminary facts that explain the circumstances in which the Convention was assembled, and which will enable us to appreciate the results at which it arrived. To these, therefore, the reader is now desired to turn.

First of all, then, it is to be remembered that the national Convention of 1787 was assembled with the great object of framing a system of government for the united interests of the thirteen states, by which the forms and spirit of republican liberty could be preserved. The warnings and teachings of the ten preceding years, which I have described in a previous part of this volume, had presented to the people of these states the serious question whether their system of conducting their common affairs then rested upon principles that could secure their permanent prosperity and happiness. That the states had national interests; that each of them stood in relations to the others, and to the rest of the world, which its separate and unaided power was unable to manage with success; and that even its own internal peace and security required some external protection, had been brought home to the convic

tions of the people by an experience that commenced with the day on which they declared themselves independent, and had now forced upon them its last stern and sorrowful lesson in the general despondency. As they turned anxiously and fearfully to the near and dear interests involved in their separate and internal concerns, they saw that self-government was a necessity of their existence. They saw that equality before the law for the whole people; the right and the power to appoint their own rulers; the right and the power to mould and form and modify every law and institution at their own sovereign will, to lay restraints upon their own power, or not to lay them, to limit themselves by public compact to a particular mode of action, or to remain free to choose other modes, were the essential conditions of American society. In a word, they beheld that republican and constitutional liberty, which, with all that it comprehends and all that it bestows, was not only altogether lovely in their eyes, but without which there could be no peace, no social order, no tranquillity, and no safety for them and their posterity.

This liberty they knew must be preserved. They loved it with passionate devotion. They had been trained for it by the whole course of their political and social history. They had fought for it through a long and exhausting war. Their habits of thought and action, their cherished principles, their hopes, their life as a people, were all bound up in it; and they knew that, if they suffered it to be lost, there would remain for them nothing but a heritage of shame, and ages of confusion, strife, and sorrow.

Great as was their devotion to this republican liberty, and ardent as was their love of it, they did not value it too highly. The doctrine that all power resides originally in the people; that they are the source of all law; that their will is to be pronounced by a majority of their numbers, and can know no interruption, was not first discovered in America. But to this principle of a democracy the people of the American states had added two real and important discoveries of their own. They had ascertained that their own power might be limited by compacts which would regulate and define the modes in which it shall be exercised. Their written constitutions had taken the place of the royal charters which formerly embraced the fundamental conditions of their political existence, but with this essential difference-that

whereas the charter emanated from a foreign sovereign to those who claimed no original authority for themselves, the Constitution proceeded from the people, who claimed all authority to be resident in themselves alone. While the charter embraced a compact between the foreign sovereign and his subjects who lived under it, the Constitution, framed by the people for their own guidance in exercising their sovereign power, became a compact between themselves and every one of their number. In this substitution of one supreme authority for another, some limitation of the mode in which the sovereign power was to act became the necessary consequence of the change; for as soon as the people had declared and established their own sovereignty, some declaration of the nature of that sovereignty, and some prescribed rules for its exercise, became immediately necessary, and that declaration and those rules became at once a limitation of power, extending to every citizen the protection of every principle involved in them, until the same authority which had established should change them.

Against the evils, too, that might arise from the unrestricted control of a majority of the people over the fundamental lawagainst the abuse of their power by frequent and passionate changes of the rules which limit its exercise for the time being -they had discovered the possibility of limiting the mode in which the organic law itself was to be changed. By prescribing certain forms in which the change was to be made, and especially by requiring the fact that a change had been decreed by those having a right to make it to be clearly and carefully ascertained by a particular evidence, they guarded the fundamental law itself against usurpation and fraud, and greatly diminished the influences of haste, prejudice, and passion.

Such was the nature of American republican liberty; not then fully understood, not then fully developed in all the states, but yet discovered a liberty more difficult of attainment, more elaborate in its structure, and therefore more needful of defence, than any of the other forms of constitutional freedom under which civilized man had hitherto been found.

Now, the fate of republican liberty in America, at that day, depended directly upon the preservation of some union of the states, and not simply upon the existing state institutions, or upon

the desires of the people of each separate state. It is true that their previous training and history, and their own intelligent choice, had made the states, in all their forms and principles, republican governments; and almost all of them had, at this period, written constitutions, in which the American ideal of such governments was aimed at, and more or less nearly reached. But how long were these constitutions, these republican forms, to exist? What was to secure them? Who was to stand as their guarantor and protector, and to vindicate the right of the majority to govern and alter and modify? Who was to enforce the rules which the people of a state had prescribed for their own action, when threatened by an insurgent and powerful minority? Who was to protect them against foreign invasion or domestic violence? There was no common sovereign, or supreme arbiter, to whom they could all alike appeal. There was no power upon this broad continent to whom the states could intrust the duty of preserving their institutions inviolate, except the people of the United States in some united and sovereign capacity. No single state, however great its territory or its population, could have discharged these duties for itself by its unaided power; for no one of them could have repelled a foreign invasion alone, and the government of one of the most respectable and oldest of them, whose people had exhibited as much energy as any other community in America, had almost succumbed to the first internal disorder which it had been forced to encounter.

The preservation of the union of the states was, therefore, essential to the continuance of their independence, and to the continuance of republican constitutional liberty--of that liberty which resides in law duly ascertained to be the authentic will of a majority. With this vastly important object before them, the people of the states could give to the Union no form that would not reflect the same spirit, and harmonize with the nature of their existing institutions. To have left their state governments resting upon the broad basis of popular freedom acting through republican forms, and to have framed, or to have attempted to frame, national institutions on any other model, would have been an act of political suicide. To enable the Union to preserve and uphold the authority of the people within the respective states, it must itself be founded on the same authority, must embody the