and to demand that votes in that body should be counted in accordance with the number of constituents represented. Only the moderation of Virginia prevented such a course, which would have broken up the proceedings at the start. The smallest States were equally determined to make no sacrifice of their present rights, and pointed to the oppressions of Athens and Sparta upon their weaker confederates as a warning against the danger of an hegemony. The settlement of this question by the adoption of the suggestion of Roger Sherman not only saved the Union, but established the only upper chamber in the world which at the end of the nineteenth century enjoys either power or respect.

The difference between the occupations and domestic institutions of the North and South presented the same questions which divided the Union after it was formed, and they nearly prevented at the first that consolidation which seventy years later they almost tore apart. Commerce and shipping were the industries for which the climate and harbors of New England had fitted its inhabitants. For these objects its delegates demanded that a majority in Congress should have the power to pass a navigation law and negotiate commercial treaties. Satisfied and enriched by agriculture, the planters of the South were willing to have their rice, indigo and tobacco shipped on foreign as well as domestic bottoms. They feared, however, lest the general government might discriminate against them by a tax upon their exports. Those of the interior had good cause for fear lest a majority might through a short-sighted policy barter to Spain the right of

3. Previous to the arrival of a majority of the states, the rule by which they ought to vote in the Convention had been made a subject of conversation among the members present. It was passed by Gouverneur Morris, and favored by Robert Morris and others from Pennsylvania, that the large states should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small states to negative every good system of government, which must, in the nature of things, be founded on a violation of that equality.

The members from Virginia, conceiving that such an attempt might beget fatal altercations between the large and small States, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective government, than, on taking the field of discussion, to disarm themselves of the right, and thereby throw themselves on the mercy of the larger states, discountenanced and stifled the project." Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 125.

free navigation of the Mississippi in return for commercial privileges in that country and its colonies. They were unwilling to give up the right of importing slaves from Africa; and wished when slaves escaped to have them returned by the Northern States. Representation by population, they insisted, should be proportioned to slave population as well as free, if for no other reason, to prevent the destruction of slavery by a capitation tax. The conscientious scruples of the descendants of the Puritans of the North made their delegates refuse to recognize any right of property by man in man. This matter, too, was adjusted by the adoption of the rule, that representatives and direct taxation should both be proportioned to the number of free inhabitants plus three-fifths of the rest, and that a capitation should be considered a direct tax. The taxation of exports by the States severally or united was forbidden absolutely. The power to regulate commerce was vested in a majority of Congress, but it was provided that treaties could not be negotiated without the consent of two-thirds of the States present in the Senate. The slave-trade was preserved for a period of twenty years; and fugitive slaves, like fugitives from justice, were to be returned by the free States to their masters. The conscience of the North was salved by the omission of the name of slave from the Constitution. Circumlocutions," said John Quincy Adams, "were the fig-leaves under which these parts of our body politic are decently concealed."7

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Jay, who had been sent to Spain to negotiate a treaty, had requested Congress for permission to concede to Spain the exclusive right to navigate the Mississippi for a limited period of time. Congress by a vote of seven to five had authorized him so to do, and he had negotiated a treaty for that purpose, which had not been ratified. Washington also was in favor of this course, in return for favorable commercial advantages. See Curtis' Con

6

§ 10. Result of the Federal Convention.

As the result of their labors they established a federal republic with a presidential form of government. They created a strong and stable nation with local self-government secured to the different States, who were restrained from creating domestic discord by unjust discrimination in favor of their own citizens. The instrument that they framed has withstood the shock of the invasion of a foreign army, which captured and burned the capital, and of a civil war which divided the whole country for five years into two hostile camps, and left the conquered section so disordered that for ten years more its local governments were upheld by the national sword. During all this time private property has remained secure, and civil liberty undisturbed except for a brief interval amidst the embers of rebellion.1 Despite the strain caused by the immigration of a vast foreign population of servile races, debased by generations of tyranny, by custom as well as inheritance unfitted to exercise the rights of citizenship, the sovereignty of the people has remained undiscredited and unimpaired, as a beacon light for the friends of popular government throughout the world. In the struggle between the supporters of civilization against the hordes of barbarians within their ranks, which is now in progress throughout Europe as well as America, property has more safety here than in any other country. The spectacle of a people submitting public controversies to the same mode of settlement as private law-suits and acquiescing in the decisions, has set an example which foreign nations are about to imitate, not only in internal discords, but in those which are international.

The invention of representative government in England removed the obstacle which had made it impossible in Greece and Italy to combine freedom with an extension of territory. But democratic government could not be accompanied by stability of public credit and security of private property until the United States first established a written constitution guarded from infringement by the courts.

1 Infra, § 38.

APPENDIX TO CHAPTER I.

JOHN LILBURNE AND THE AGREEMENT OF THE PEOPLE.

8

MORE than a passing word is due to freeborn John Lilburne, of whom Hume, a sympathizer with neither his religion nor his politics, said that he was "the most turbulent, but the most upright and courageous of human kind; " and who by his experiments, as well as his teachings, did more than any other to found that present system of public law which gives the courts power to disregard an act of the legislature as unconstitutional. He was born about 1618, the son of Richard Lilburne, a gentleman of Thickley-Punchardon in the County of Durham.2 His name appears in the pamphlets written by himself both as Lilburn and Lilburne, the later publications having the final e. He had little early education; admitting that he never acquired the knowledge of any tongue but his own, except the mastery of ordinary Latin law-terms; but he acquired by study during his imprisonments a wide knowledge of English history and a good smattering of law. When about fourteen years of age he was apprenticed to a cloth-dealer in London, where he probably acquired those Puritan doctrines to which he adhered through life. Thence he went to Holland for a short time and engaged in trade there as a factor." On his return in 1639, when about twenty years old, he was arrested and brought before the Star Chamber on the false charge of importing factious and scandalous books, amongst others Bastwick's "Answer to certain Objections," Litany for the especiall Use of our English Prelates," and "The Vanity and Impiety of the old Litany." Lilburne refused to pay the fees for entering his appearance before the Star Chamber, and to answer the charges under oath, amongst other grounds because the requirement was a violation of the Petition of Right. For this he was sentenced to a fine of five hundred

1 Hume's History of England, ch. lx. 2 Howell's State Trials, vol. iii, p. 1320; vol. iv, p. 1291; vol. v, p. 416.

8 Ibid., vol. iv, pp. 1282, 1283, 1297. Ibid., vol. iii, p. 1317.

5 Ibid.

pounds, to exposure in the pillory, to be whipped from the Fleet to the pillory, and then to imprisonment till he should furnish sureties for his good behavior."

He withstood his punishment bravely, receiving between the Fleet and the pillory at Westminster more than two hundred stripes from a whip with a threefold knotted cord; while he repeated texts and prophesied to the people. On his arrival he was offered relief from the pillory if he would confess his fault, which he refused. When in the pillory, stooping with his neck in the yoke and his bare head exposed to the sun, he held forth to the crowd, denying the charges against him, justifying himself for his refusal to take the illegal oath, denouncing the bishops, and exhorting his hearers to be faithful, valiant soldiers in Christ' 8 army. In the midst of his discourse he threw amongst the mob three of the books which were the subject of his accusation. His mouth was at last stopped by a gag; but when it was removed, as he took his head out of the pillory, he cried: "I am more of a conqueror through him that hath loved me. Vivat rex; "and on his return to prison published an account of his sufferings, with a copy of his speech signed in his blood. The Star Chamber thereupon voted that all persons sentenced to be whipped should be searched and their hands bound before their punishment, and

"That the said John Lilburn should be laid alone, with irons on his hands and legs, in the Wards of the Fleet, where the basest and meanest sort of prisoners are used to be put; and that the Warden of the Fleet take especial care to hinder the resort of any persons whatsoever unto him. And particularly, that he be not supplied with money from any friend, and that he take special notice of all letters, writings, and books brought unto him, and seize and deliver the same unto their lordships; and take notice from time to time, who they are that resort unto the said prison to visit the said Lilburn, or to speak with him, and inform the Board thereof."

He lay thus in prison for nearly three years, kept in fetters till his life was endangered by illness, nearly starved till his friends provided him with food through stratagem, having it passed to him by his fellow prisoners through holes in the wall or floor of his cell; and at times so brutally treated by his gaolers that he lost the use of two fingers for life. In 1640, at the opening of the Long Parliament, he petitioned for his liberty, and was the first prisoner released by them.10