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CHAPTER XXIII

THE IMPERIAL POWER, 1787

HE first resolution adopted by the Convention for framing the Constitution of the United States, which was the basis of all its subsequent action, read, according to the report of Madison, in his Journal of the Federal Convention, as follows:

Resolved: That a National Government ought to be established, consisting of a Supreme Legislative, Executive, and Judiciary.

If the American Confederation was to be reorganized so as to be a true "Nation "-that is, a State-with a Chief Executive, it was plainly necessary, if traditions were to be observed, that the Executive should administer the dependencies of the State under the superintendence of the Legislature. The power of disposition was a power neither strictly executive nor legislative, but which more closely resembled the executive than the legislative power, since it was essentially judicative in its character. Still, though the American Colonies, during their contest with Great Britain, had uniformly insisted that the political connection between them and the State of Great Britain was through the Executive of Great Britain, who was ex officio the Disposer of the Empire, the antiImperialists had never succeeded in committing the Colonies to the proposition that the Legislature of Great Britain had no power in the Empire. Dickinson had prevented the adoption of the statement to this effect in

Jefferson's draft of the Declaration on Taking up Arms, and the Federal-Imperialists had prevented the adoption of a similar statement in his draft of the Declaration of Independence. The American Union was, therefore, in a position, thanks to the Federal-Imperialists, where it could place the responsibility for the habitual performance of its Imperial obligations either on the Executive, as the expert branch of the Government, subject to the superintendence of the Legislature, or on the Legislature, as the popular branch of the Government, subject to the superintendence of the Executive. It could not, however, without national self-stultification, after having insisted that the Chief Executive of the State of Great Britain had power to nullify Acts of Parliament relating to the American Colonies as "pretended" and "unwarrantable" legislation, confer upon its own Legislature the exclusive power to administer the dependencies of the Union, or even require the Chief Executive to execute the will of the Legislature relating to the dependencies in all cases.

In examining the proceedings of the Convention, relating to administration of the dependencies, therefore, the prime interest naturally attaches to its action concerning the powers of the Chief Executive of the Union.

Randolph's resolutions, which were taken as the basis of the action of the Convention, contained the following three provisions bearing on the subject of the administration of the dependences:

6. That the National Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

7. That a National Executive be instituted;

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that besides a general authority to execute the National laws, it ought to enjoy the executive rights vested in Congress by the Confederation.

10. That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the National Legislature less than the whole.

The expression "rights vested in the Confederation " was wide enough to include both those vested in Congress by the Articles of Confederation and those vested in it by the resolution of October 10, 1780 and the cessions of the States made in pursuance of that resolution.

Considering the character of the power exercised by the Confederation in administering its dependencies, it was doubtful whether this power was intended to have been granted to the National Legislature by the sixth resolution as a "legislative right," or to the National Executive, under the seventh resolution, as an "executive right." As all the rights exercised by the Congress of the Confederation had been recognized as being essentially executive rights, and as it had claimed that it was the successor of the King of Great Britain for the purpose of administering the Western region, the natural inference would seem to be that it was intended to make the Chief Executive the acting representative of the Union in the administration of the dependencies, subject to the superintendence of the Legislature.

The word "arising" in the tenth resolution was a word of sufficiently broad meaning to cover the case of the creation of a State by the action of the squatters or settlers on the public lands in joining themselves, their families, their possessions and lands, and uniting under a common authority (which was the case of the State of Franklin and the State of Vermont), or of the creation

of a State by the authority and direction of a State (which was the case of the District of Kentucky); yet it rather implied that such communities were essentially distinct personalities, growing like individuals by their own exertions, and not things moulded into shape by a force from without.

These words" lawfully arising," in connection with the general powers of legislation given to Congress, were, it seems, considered sufficient for a considerable time to designate the theory of the administration of dependencies. The word "arising" was doubtless used to satisfy the anti-Imperialist faction in the Convention, and the word lawfully" to satisfy the Federal-Imperialist faction.

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The Congress, in Committee of the Whole, unanimously agreed that all the legislative powers of the existing Congress ought to be transferred to the National Legislature, and the Committee of the Whole reported Randolph's sixth resolution with the single change of the word "possess for the expression "empowered to enjoy." The provision with regard to the National Executive was, however, changed so as to read as follows:

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Resolved: That a National Executive be instituted, to consist of a single person; to be chosen by the National Legislature, for the term of seven years; with power to carry into execution the National laws; to appoint to offices in cases not otherwise provided for; to be ineligible a second time; and to be removable on impeachment and conviction of malpractices or neglect of duty; to receive a fixed stipend by which he may be compensated for the devotion of his time to the public service, to be paid out of the National Treasury.

Madison, on June 1, attempted to have a clause added which should provide that the Executive should be empowered "to execute such other powers not legisla

tive or judiciary in their nature, as may from time to time be delegated by the National Legislature," but the clause was stricken out on Pinckney's objection that this power was included in the power to carry into effect the National laws; Massachusetts, Virginia, and South Carolina voting in favor of the retention of the clause.

In the Committee of the Whole, the tenth resolution relating to "new States lawfully arising" was left unchanged.

The Committee of the Whole reported on June 13. The debate on this report continued until July 26, when the resolutions of the Committee of the Whole, as amended, were referred to a Committee on Detail, composed of Rutledge, Randolph, Gorham, Ellsworth, and Wilson. During this debate, on July 17, the provision relating to the National Legislature was amended so as to read:

That the National Legislature ought to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

The provision relating to the Executive was amended by striking out the clause making him ineligible for re-election. That relating to the admission of new States into the Union was not changed at all.

As the resolutions went to the Committee on Detail, therefore, they either gave the Congress the exclusive power of legislating for the dependencies, as a part of "the general interests of the Union," or they left the whole subject of the respective powers of the Legislature and the Executive in the administration of the dependencies to be implied from the words "lawfully arising.'

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