But they apply in principle to any constitution-making body. As regards the Convention of 1787, two observations may be made before I quit the subject.

It included nearly all the best intellect and the ripest political experience that the United States then contained. John Adams was absent as Minister to England, Thomas Jefferson as Minister to France. But of the other shining lights of the time, Jay (afterwards first Chief-Justice of the Supreme Court) and John Marshall (afterwards third Chief-Justice, but not yet famous), were almost the only two who did not join in this national work. These men, great by their talents and the memory of their services, could not have been brought together for any smaller occasion, nor would any lower authority than theirs have sufficed to procure the acceptance of a plan which had so much prejudice arrayed against it.1

The Convention met at the most fortunate moment in American history. Between two storms there is often a perfectly still and bright day. It was in such an interval of calm that this work was carried through. Had it been attempted four years earlier or four years later, at both which times the waves of democracy were running high, it must have failed. In 1783 the people, flushed with their victory over England, were full of confidence in themselves and in liberty, persuaded that the world was at their feet, disposed to think all authority tyranny. In 1791 their fervid sympathy with the Revolution in France had not yet been damped by the excesses of the Terror nor alienated by the insolence of the French government and its diplomatic agents in America. But in 1787 the first reaction from the War of Independence had set in. Wise men had come to discern the weak side of popular government; and the people themselves were in a comparatively humble and teachable mind. Before the next wave of democratic enthusiasm swept over the country the organization of a national government under the Constitution was in all its main features complete. It was seen that liberty was still safe, and men began ere long to appreciate the larger and fuller national life which the Federal Government opened before them. History sees so many golden opportunities lost that she gladly notes those which the patriotic foresight of such men as Washington and Franklin, Hamilton and Madison and Roger Sherman seized and used.

1 It is remarkable that two of the strongest men in the Convention were, as not being native Americans, far less influenced than most of their colleagues by local and State feeling, and therefore threw the whole weight of their intellect and influence into the national scale. These were Alexander Hamilton, born a West Indian, the son of a Scotch father and French mother, and James Wilson, an immigrant from Scotland. The speeches of the latter (a lawyer in Philadelphia, and afterwards a justice of the Supreme Federal Court) in the Pennsylvania ratifying Convention, as well as in the great Convention of 1787, display an amplitude and profundity of view in matters of constitutional theory which place him in the front rank of the political thinkers of his age. Wilson, who was born about 1742 and died in 1792, is one of the luminaries of the time to whom, as to the still greater and far more brilliant Hamilton, subsequent generations of Americans have failed to do full justice.

NOTE TO CHAPTER IV

WHAT THE FEDERAL CONSTITUTION OWES TO THE CONSTITUTIONS OF THE SEVERAL STATES

THE following statement of the provisions of the Federal Constitution which have been taken from or modelled upon State constitutions, is extracted from a valuable article by Mr. Alexander Johnston in the New Princeton Review for September 1887 :

"That part of the Constitution, which has attracted most notice abroad, is probably its division of Congress into a Senate and a House of Representatives, with the resulting scheme of the Senate as based on the equal representation of the States. It is probably inevitable that the upper or hereditary House in foreign legislative bodies shall disappear in time. And it is not easy to hit on any available substitute; and English writers for example, judging from the difficulty of finding a substitute for the House of Lords, have rated too high the political skill of the Convention in hitting upon so brilliant a success as the Senate. But the success of the Convention was due to the antecedent experience of the States. Excepting Pennsylvania and Vermont, which then gave all legislative powers to one House, and executive powers to a governor and council, all the States had bicameral systems in 1787.1

"The name 'Senate' was used for the Upper House in Maryland, Massachusetts, New York, North Carolina, New Hampshire, and South Carolina and Virginia; and the name 'House of Representatives,' for the Lower House, was in use in Massachusetts, New Hampshire, and South Carolina, as well as in Pennsylvania and Vermont.

"The rotation, by which one-third of the Senate goes out every two years, was taken from Delaware, where one-third went out each year, New York (onefourth each year), Pennsylvania (one-third of the council each year), and Virginia (one-fourth each year). The provisions of the whole fifth section of Art. i., the administration of the two Houses, their power to decide the election of their members, make rules and punish their violation, keep a journal, and adjourn from day to day, are in so many State constitutions that no specification is needed for them.

"The provision that money-bills shall originate in the House of Representatives is taken almost word for word from the Constitutions of Massachusetts and New Hampshire, as is the provision, which has never been needed, that the President may adjourn the two Houses when they cannot agree on a time of adjournment. The provision for a message is from the

1 Georgia, however, had not till 1789 a true second chamber, her constitution of 1777 having merely created an executive council elected by the Assembly from among its own members.

Vermont was not one of the thirteen original States, but was a semi-independent commonwealth, not a member of the Confederation of 1781, not represented in the Convention of 1787, and not admitted to the Union till 1791.

Constitution of New York. All the details of the process of impeachment as adopted by the Convention may be found in the Constitutions of Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, Vermont, Virginia, even to the provision in the South Carolina system that conviction should follow the vote of two-thirds of the members present. (It should be said, however, that the limitation of sentence in case of conviction to removal from office and disqualification for further office-holding is a new feature.) Even the much-praised process of the veto is taken en bloc from the Massachusetts Constitution of 1780, and the slight changes are so evidently introduced as improvements on the language alone as to show that the substance was copied.

"The adoption of different bases for the two Houses-the House of Representatives representing the States according to population, while the Senate represented them equally-was one of the most important pieces of work which the Convention accomplished as well as the one which it reached most unwillingly. All the States had been experimenting to find different bases for their two Houses. Virginia had come nearest to the appearance of the final result in having her Senate chosen by districts and her representatives by counties; and, as the Union already had its 'districts' formed (in the States), one might think that the Convention merely followed Virginia's experience. But the real process was far different and more circuitous. There were eleven States represented in the Convention, New Hampshire taking New York's place when the latter withdrew, and Rhode Island sending no delegates. Roughly speaking, five States wanted the 'Virginia plan' above stated; five wanted one House as in the Confederation with State equality in it; and one (Connecticut) had a plan of its own to which the other ten States finally acceded. The Connecticut system since 1699, when its legislature was divided into two Houses, had maintained the equality of the towns in the Lower House, while choosing the members of the Upper House from the whole people. In like manner its delegates now proposed that the States should be equally represented in the Senate, while the House of Representatives, chosen from the States in proportion to population, should represent the people numerically. The proposition was renewed again and again for nearly a month until the two main divisions of the Convention, unable to agree, accepted the 'Connecticut compromise,' as Bancroft calls it, and the peculiar constitution of the Senate was adopted.

"The President's office was simply a development of that of the governors of the States. The name itself had been familiar; Delaware, New Hampshire, Pennsylvania, and South Carolina, had used the title of President instead of that of Governor. In all the States the governor was commander-in-chief, except that in Rhode Island he was to have the advice of six assistants, and the major part of the freemen, before entering upon his duties. The President's pardoning power was drawn from the example of the States; they had granted it to the governors (in some cases with the advice of a council) in all the States except Connecticut, Rhode Island, and Georgia, where it was retained to the legislature, and in South Carolina, where it seems to have been

forgotten in the Constitution of 1778, but was given to the governor in 1790. The governor was elected directly by the people in Connecticut, Massachusetts, New York, and Rhode Island, and indirectly by the two Houses in the other eight States; and in this nearly equal division we may, perhaps, find a reason for the Convention's hesitation to adopt either system, and for its futile attempt to introduce an electoral system, as a compromise. The power given to the Senate of ratifying or rejecting the President's appointments seems to have been an echo of New York's council of appointment; the most strenuous and persistent efforts were made to provide a council to share in appointments with the President; the admission of the Senate as a substitute was the furthest concession which the majority would make; and hardly any failure of details caused more heart-burnings than the rejection of this proposed council for appointments.

"The President's power of filling vacancies, by commissions to expire at the end of the next session of the Senate, is taken in terms from the Constitution of North Carolina.

"Almost every State prescribed a form of oath for its officers; the simple and impressive oath of the President seems to have been taken from that of Pennsylvania, with a suggestion, much improved in language, from the oath of allegiance of the same State. The office of vice-president was evidently suggested by that of the deputy, or lieutenant-governor (in four States the vice-president) of the States. The exact prototype of the office of vice-president is to be found in that of the lieutenant-governor of New York. was to preside in the Senate, without a vote, except in case of a tie, was to succeed the governor, when succession was necessary, and was to be succeeded by the President pro tempore of the Senate.

He

"The provisions for the recognition of inter-State citizenship, and for the rendition of fugitive slaves and criminals, were a necessity in any such form of government as was contemplated, but were not at all new. They had formed a part of the eighth article of the New England Confederation of 1643. Finally the first ten amendments, which were tacitly taken as a part of the original instrument, are merely a selection from the substance or the spirit of the Bills of Rights which preceded so many of the State constitutions.

"The most solid and excellent work done by the Convention was its statement of the powers of Congress (in § 8 of Art. i.) and its definition of the sphere of the Federal judiciary (in Art. iii.) The results in both of these cases were due, like the powers denied to the States and to the United States (in §§ 9 and 10 of Art. i.), to the previous experience of government by the States alone. For eleven years or more (to say nothing of the antecedent colonial experience) the people had been engaged in their State governments in an exhaustive analysis of the powers of government. The failures in regard to some, the successes in regard to others, were all before the Convention for its consideration and guidance.

"Not creative genius, but wise and discreet selection was the proper work of the Convention; and its success was due to the clear perception of the antecedent failures and successes, and to the self-restraint of its members.

"The (presidential) electoral system was almost the only feature of the Constitution not suggested by State experience, almost the only feature which was purely artificial, not a natural growth; it was the one which met with least criticism from contemporary opponents of the Constitution and most unreserved praise from the Federalist; and democracy has ridden right over it."

NOTE TO CHAPTER X

EXTRACTS FROM THE RULES OF THE SENATE

A QUORUM shall consist of a majority of the senators, duly chosen and sworn. The legislative, the executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.

When the yeas and nays are ordered, the names of senators shall be called alphabetically; and each senator shall, without debate, declare his assent or dissent to the question, unless excused by the Senate; and no senator shall be permitted to vote after the decision shall have been announced by the presiding officer, but may for sufficient reasons, with unanimous consent, change or withdraw his vote.

When a senator declines to vote on call of his name, he shall be required to assign his reasons therefor, and on his having assigned them, the presiding officer shall submit the question to the Senate, "Shall the senator for the reasons assigned by him, be excused from voting?" which shall be decided without debate.

Every bill and joint resolution shall receive three readings previous to its passage; which readings shall be on three different days, unless the Senate unanimously direct otherwise; and the presiding officer shall give notice at each reading whether it be the first, second, or third.

When a senator desires to speak he shall rise and address the presiding officer, and shall not proceed until he is recognized, and the presiding officer shall recognize the senator who shall first address him. No senator shall interrupt another senator in debate without his consent, and to obtain such consent he shall first address the presiding officer; and no senator shall speak more than twice upon any one question in debate on the same day, without leave of the Senate, which shall be determined without debate.

Any motion or resolution may be withdrawn or modified by the mover at any time before a decision, amendment, or ordering of the yeas and nays, except a motion to re-consider, which shall not be withdrawn without leave.

In the appointment of the standing committees, the Senate, unless otherwise ordered, shall proceed by ballot to appoint severally the chairman of each committee, and then, by one ballot, the other members necessary to complete the same. A majority of the whole number of votes given shall be necessary to the choice of a chairman of a standing committee, but a plurality of votes