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The legislative, executive, and judicial powers were vested in a governor and three judges, who, with a secretary, were to be appointed by congress; the governor for three years, the judges during good behavior. The laws of the territory were to be such laws of the original states, as the governor and judges should think proper to adopt. These laws were to be in force until disapproved by congress. When the territory should contain five thousand free male inhabitants of full age, there was to be a legislature, to consist of two branches; a house of representatives, the members to be chosen from the several counties or townships, for the term of two years, and a legislative council of five persons who were to hold their offices for five years, and to be appointed by congress out of ten persons previously nominated by the house of representatives of the territory. All laws were required to be consistent with the ordinance, and to have the assent of the governor. The ordinance concludes with six articles of compact between the original states and the people of the territory, to be unalterable except by common consent. The first secures entire religious freedom; the second, trial hy jury, the writ of habeas corpus, and the other fundamental rights usually inserted in bills of rights; the third provided for the encouragement and support of schools, and enjoined good faith towards the Indians; the fourth placed the new states to be formed out of the territory upon an equal footing with the old ones, both in respect to their privileges and their burdens, and reserved to the United States the right to dispose of the soil; the fifth authorized the future division of the territory into not less than three nor more than five states, each state to be admitted into the union, when it should contain sixty thousand free inhabitants; the sixth was the anti-slavery proviso introduced by Mr. Jefferson in 1784, 80 modified, however, as to take effect immediately.

This ordinance, which left the territory south of the Ohio, (then not yet ceded,) subject to future regulation, received the unanimous vote of the eight states present: Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, and Georgia. One member only (Mr. Yates, of New York) voted in the negative; that state being determined in the affirmative by the votes of his two colleagues. This unanimous support of this measure by the southern states present, is variously accounted for. Mr. Benton, (View, vol. 1, p. 135,) says : “ The fact is, that the south only delayed its vote for the antislavery clause in the ordinance for want of the provision in favor of recovering fugitives from service.” If so, his information is derived from some other source than the journals of congress. In the absence of positive information, the more probable reason is, that Mr. Jefferson's proposition embraced the territory south of the Ohio, from which, it is presumed, the south did not wish slavery to be excluded.

CHAPTER IV.

PROCEEDINGS OF THE CONVENTION IN FORMING THE CONSTITUTION.

The day appointed for the assembling of the convention to revise the articles of confederation, was the 14th of May, 1787. Delegations from a majority of the states did not attend until the 25th ; on which day the business of the convention commenced. The delegates from New Hampshire did not arrive until the 23d of July. Rhode Island did not appoint delegates.

A political body combining greater talents, wisdom, and patriotism, or whose labors have produced results more beneficial to the cause of civil and religious liberty, has probably never assembled. The two most distinguished members were Washington and Franklin; to whom the eyes of the convention were directed for a presiding officer. Washington, having been nominated by Lewis Morris, of Pennsylvania, was elected president of the convention. William Jackson was appointed secretary.

The rules of proceeding adopted by the convention, were chiefly the same as those of congress. A quorum was to consist of the deputies of at least seven states; and all questions were to be decided by the greater number of those which were fully represented—at least two delegates being necessary to constitute a full representation. Another rule was the injunction of secrecy upon all their proceedings.

The first important question determined by the convention was, whether the confederation should be amended, or a new government formed. The delegates of some states had been instructed only to amend. And the resolution of congress sanctioning the call for a convention, recommended it “ for the sole and express purpose of revising the articles of confederation.” A majority, however, considering the plan of confederation radically defective, resolved to form “ a national government, consisting of a supreme judicial, legislative, and executive." The objections to the new system on the ground of previous instructions, was deemed of little weight, as any plan that might be agreed on, would necessarily be submitted to the people of the states for ratification.

In conformity with this decision, Edmund Randolph, of Virginia, on the 29th of May, offered fifteen resolutions, containing the outlines of a plan of government for the consideration of the convention. These resolutions proposed–That the voice of each state in the national legislature, should be in proportion to its taxes, or to its free population; that the legislature should consist of two branches, the members of the first to be elected by the people of the states, those of the second to be chosen by the members of the first, out of a proper number of persons nominated by the state legislatures; and the national legislature to be rested with all the powers of congress under the confederation, with the additional power to legislate in all cases to which the separate states were incompetent; to negative all state laws which should, in the opinion of the national legislature, be repugnant to the articles of union, or to any treaty subsisting under them; to call out the force of the union against any state refusing to fulfill its duty :

That there should be a national executive, to be chosen by the national legislature, and to be ineligible a second time. The executive, with a convenient number of the national judiciary, was to constitute a council of revision, with a qualified negative upon all laws, state and national:

A national judiciary, the judges to hold their offices during good behavior.

In discussing this plan, called the “ Virginia plan," the lines of party were distinctly drawn. We have already had occasion to allude to the jealousy, on the part of states, of the power of the general government. A majority of the peculiar friends of state rights in the convention, were from the small states. These states, apprehending danger from the overwhelming power of a strong national government, as well as from the combined power of the large states represented in proportion to their wealth and population, were unwilling to be deprived of their equal vote in Congress

. Not less strenuously did the friends of the national plan insist on a proportional representation. This opposition of sentiment, which divided the convention into parties, did not terminate with the proceedings of that body, but has at times marked the politics of the

, nation, down to the present day. It is worthy of remark, however, that the most jealous regard for state rights now prevails in states in which the plan of a national government then found its ablest and most zealous advocates.

The plan suggested by Mr. Randolph's resolutions, was the subject of deliberation for about two weeks, when, having been in several respects modified in committee, and reduced to form, it was reported to the house. It contained the following provisions :

A national legislature to consist of two branches, the first to be elected by the people for three years; the second to be chosen by the state legislatures for seven years, the members of both branches to be apportioned on the basis finally adopted; the legislature to possess powers

nearly the same as those originally proposed by Mr. Randolph. The executive was to consist of a single person to be chosen by the national legislature for seven years, and limited to a single term, and to have a qualified veto; all bills not approved by him, to be passed by a vote of three-fourths of both houses in order to become laws. A national judiciary to consist of a supreme court, the judges to be appointed by the second branch of the legislature for the term of good behavior, and of such inferior courts as congress might think proper to establish.

This plan being highly objectionable to the state rights party, a scheme agreeable to their views was submitted by Mr. Patterson, of New Jersey. This scheme, called the "New Jersey plan," proposed no alteration in the constitution of the legislature, but simply to give it the additional power, to raise a revenue by duties on foreign goods imported, and by stamp and postage taxes; to regulate trade with foreign nations and among the states; and, when requisitions made upon the states were not complied with, to collect them by its own authority. The plan proposed a federal executive, to consist of a number of person selected by congress; and a federal judiciary, the judges to be appointed by the executive, and to hold their offices during good behavior.

The Virginia and New Jersey plans were now (June 19th) referred to a new committee of the whole. Another debate arose, in which the powers of the convention was the principal subject of discussion. It was again urged that their power had been, by express instruction, limited to an amendment of the existing confederation, and that the new system would not be adopted by the states. The vote was taken on the 19th, and the propositions of Mr. Patterson were rejected; only New York, New Jersey, and Delaware, voting in the affirmative; seven states in the negative; and the members from Maryland equally divided.

Mr. Randolph's propositions, as modified and reported by the committee of the whole, were now taken up and considered separately. The division of the legislature into two branches, a house of representatives and a senate, was agreed to almost unanimously, one state only, Pennsylvania, dissenting; but the proposition to apportion the members to the states, according to population, was violently opposed. The small states insisted strenuously on retaining an equal vote in the legislature; but at length consented to a proportional representation in the house, on condition that they should have an equal vote in the senate.

Accordingly, on the 29th of June, Mr. Ellsworth, of Connecticut, offered a motion, "that in the second branch, each state shall have an equal vote." This motion gave rise to a protracted and vehement debate. It was supported by Messrs, Ellsworth, Baldwin, of Georgia, Bradford, of Delaware, and others. It was urged on the ground of the

necessity of a compromise between the friends of the confederation and those of a national government, and as a measure which would secure tranquillity, and meet the objections of the larger states. Equal representation in one branch would make the government partly federal, and a proportional representation in the other, would make it partly national. Equality in the second branch would enable the small states to protect themselves against the combined power of the large states. Fears were expressed, that without this advantage to the small states, it would be in the power of a few large states to control the rest. The small states, it was said, must possess this power of self-defense, or be ruined.

The motion was opposed by Messrs. Madison, Wilson, of Pennsylvania, King, of Massachusetts, and Dr. Franklin, Mr. Madison thought there was no danger from the quarter from which it was apprehended. The great source of danger to the general government was the opposing interests of the north and the south, as would appear from the votes of congress, which had been divided by geographical lines, not according to the size of the states. Mr. Wilson objected to state equality, that it would enable one-fourth of the union to control three-fourths. Respecting the danger of the three larger states combining together to give rise to a monarchy or an aristocracy, he thought it more probable that a rivalship would exist between them, than that they would unite in a confederacy. Mr. King said the rights of Scotland were secure from all danger, though in the parliament she had a small representation. Dr. Franklin, (now in his eighty-second year) said as it was not easy to see what the greater states could gain by swallowing up the smaller; he did not apprehend they would attempt it. In voting by states—the mode then existing—it was cqually in the power of the smaller states to swallow up the greater. He thought the number of representatives ought to bear some proportion to the number of the represented.

On the 2d of July, the question was taken on Mr. Ellsworth's motion, and lost-Connecticut, New York, New Jersey, Delaware, and Mary. land, voting in the affirmative; Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina, in the negative; Georgia divided. It will be remembered, that the delegates from New Hampshire were not yet present, and that Rhode Island had appointed none. This has been regarded by some as a fortunate circumstance; as the votes of these two small states would probably have given an equal vote to the states in both houses, if not have defeated the plan of a national governo ment.

The excitement now became intense, and the convention seemed to be on the point of dissolution. Luther Martin, of Maryland, who had taken a leading part in advocating the views of the state rights party,

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