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WEAKNESS OF THE CONFEDERATION.

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volution." When suffering becomes intolerable, an oppressed majority or minority may justly take up arms if there are no other means of redress. The question then is like that which presents itself to the surgeon: "Is there such a reasonable hope of success as will outweigh the risk and pain incident to the operation?" But a man who in mature life and at a critical period can write thus childishly of the evils incident to civil war, is hardly a safe counsellor either for a king or people.

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LECTURE II.

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The Constitutional Convention; Its Object,—the Creation of a Strong but Free Government. The Methods discussed.-Federation. - Centralization. — Concurrent and Co-ordinate Government by the States and the United States. - A System without Historical Precedent. - Analogies in the Feudal System and in the Jurisdictions of the Courts at Westminster. -The Relations of State to National Legislation. The Supreme Court of the United States the Final Arbiter of Constitutional Questions. The underlying Rule of Adjustment between the State and the United States the Common-Law Principle that the Validity of a Command or Act depends on the Legal Powers of the Source whence it proceeds. - Nullification. The Method provided for amending the Constitution an Indication of the Subordination of State Sovereignty. The System of Representation in Congress partly Federal, and partly National. Recapitulation.

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AFTER various efforts for the reformation of the existing system, and among others an assemblage of delegates from five States at Annapolis, had proved abortive, Congress, on the 21st of February, 1787, adopted the following resolution: "It is expedient that on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to by Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." Delegations from all the States, with the exception of Rhode Island, met at the time. and place appointed; and having chosen George Washington as their President, entered on deliberations which, next to those which resulted in Magna Charta, have had the greatest and most beneficial influence on the political development of the United States.

THE CONSTITUTIONAL CONVENTION.

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What has been said will perhaps render it evident that the task which the Convention had before it was one that practical and sagacious minds might reasonably hope to accomplish. It was not to ascertain the principles on which a free government ought to be based. These had been evolved during the struggles of the English nation for freedom, were vindicated in the great Rebellion and the trial, judgment, and execution of Charles I., had triumphed in the Revolution of 1688, and were accepted with unquestioning faith by the people of the United States. It was not even to inquire by what methods these principles could best be applied on this side of the Atlantic. That problem had been solved in the various Colonial and State governments.

It was to ascertain how the void made by the overthrow of the supremacy of England could be filled, and a government created that should worthily represent the nation, without infringing the local liberties that were hardly less dear to the people than their national existence.

Two methods were obvious on a superficial view, although to a sagacious mind neither promised a favorable result. One was that of so amending the Articles of Confederation as to enlarge the circle of its powers, while leaving the States in possession of the means by which those powers were to be carried into effect. In this way the Union would remain. merely federative, and be a league of States rather than a nation. If, for instance, Congress were empowered to regulate commerce, the rules which they prescribed would be inefficacious until they were enforced by the States, and might be violated with impunity in any State which did not see fit to render them binding on its citizens. The manifold evils of such a plan had become so obvious to all men through bitter experience that it had comparatively few advocates in the Convention, and was finally abandoned by some of those who had originally been its friends. Another plan was to consolidate the States, — effacing the State lines, or retaining them only as the boundaries of provinces or departments. This plan would have had the merit of simplicity and clearness. All that was needed was to take the Constitution of any one

of the States and apply it to the nation. In following this course, the Convention would proceed in a beaten track, and be guided throughout by precedents that were universally respected. But the country was not then, any more than it is now, prepared to surrender its local franchises, or forego the guaranties which these might derive from State sovereignty constituted within proper limits.

If the States were to exist as distinct political communities, retaining to a great extent their autonomy (and no one who knew the temper of the times could anticipate any other result); if the people were not willing to trust their local rights and franchises to a remote and central power; and if, on the other hand, a merely federal government would not, in the judgment of the wiser and controlling minds of the Convention, give the nation security and order, what course remained; how should these imperative and yet seemingly irreconcilable demands be satisfied? It was one of those momentous problems which Providence sometimes propounds to nations, and hangs their fate on the response; and from its very magnitude and the anxiety which it aroused, divided the Convention into nearly equal camps. The task was the more difficult because it was not merely to give the American people good laws, or the laws best suited to their peculiar circumstances, but such laws as they could be induced to ratify. Such were the differences of opinion on these important topics that agreement would have been hopeless, but for the obvious truth that the only escape from the dilemma lay in the mutual concession that would leave either party in possession of some portion of what it most desired.1

It was at length, after much anxious deliberation, per

1 Madison, writing to Jefferson in March, 1787, shortly before the meeting of the Convention, described the difficulties of the situation in the following expressive terms: "The differences which present themselves are on one side sufficient to dismay the most sanguine, while on the other side the most timid are compelled to encounter them by the defects of the existing Constitution;" and he soon after wrote to Washington that the right of coercion should be expressly declared. History, etc., by John C. Hamilton, iii. 249-255; 1 Madison's Writings, 284, 290.

CONCURRENT STATE AND NATIONAL GOVERNMENT. 23

ceived that a national government might be established which acting not upon or through the States, but directly on the citizen, would be supreme through the whole range of its powers, but yet being confined within fixed limits, would not divest the jurisdiction of the States over the matters committed to their care. State sovereignty would remain, although curtailed in its proportions; and out of what the States surrendered, a new government would be formed, not only sovereign, but for all the purposes of its existence, paramount. The power of regulation and adjustment would devolve on the judiciary of the United States, which would act as the balance-wheel of the Constitution keeping the National Government and the States to their respective orbits; and as it would belong to the Supreme Court to declare the law, so it would be the duty of the President to enforce it with the whole power of the Government. But the States would retain a legislative power, embracing the ordinary concerns of life and trade, and absolute within its peculiar sphere. Their sovereignty, like that of the United States, would be derived immediately from the people, and they would be responsible to their constituents and not to the General Government, for the manner in which it was exercised. Each man, each rood of ground, every navigable stream, would, agreeably to this scheme, have two masters both entitled to command and to enforce their orders by appropriate penalties, but with powers so nicely harmonized and adjusted that neither could in the ordinary course of events be brought into conflict with the other.

I have stated that the Constitution was modelled on existing institutions, and did not display great originality of thought or novelty of conception; but the feature to which I have just alluded has, so far as my knowledge extends, no precedent in political history. The feudal system had indeed shown that there might be king, lord, and vassal, and that the duty which the vassal owed to his immediate superior need not necessarily conflict with the higher allegiance due to the king; but the spectacle of two co-ordinate governments over the same territory, supreme within their respec

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