CHAPTER VIII.

THE DETAILS OF THE DRAFT.

The Committee's draft of a Constitution was now considered article by article.1 As the powers of each branch were delineated with more or less accuracy by a subsequent article, the provision for the mutual negative at the suggestion of Madison and Pinckney was struck out.2 Madison thought it inexpedient to tie the legislature down to a particular time of meeting, but Ellsworth urged that the Convention was as competent as Congress to judge of the proper time. King doubted the wisdom of requiring a meeting every year, as the great vice in the American system already was over-legislation. The objects of congressional legislation, he said, would be few, chiefly those of commerce and revenue, and the greater part of the public interests would be cared for by the assemblies. But annual meetings of the legislature were so fixed an element in the American system that Mason went so far as to declare them essential to the preservation of the Constitution. It was decided that Congress should meet on the first Monday of December of every year, unless, as Madison suggested, a different day should be appointed by law.

Because it might frequently happen that public measures in America ought to be influenced by those of Europe,

1 This Chapter which narrates the work of the Convention from August 7 to August 27, is based upon the Journal, Documentary History, I, 113-158; Elliot, I, 230-267; Madison's Notes, Documentary History, III, 458-623; Elliot, V, 382-481; Madison's Works (Gilpin), III, 1243, 1433; Scott's Edition of the Madison Papers, 462-313.

2 August 7. In the third article.

which were generally planned during the winter, and as all intelligence would arrive in the spring, Morris and Madison preferred May to December as the time for the meeting of Congress, but the time for the meeting of the assemblies, which was usually in December, and also that of the old Congress, had weight, and that month was chosen instead of May.1

Morris and Fitzsimons wished the right to vote for representatives limited to freeholders, but Williamson and Wilson thought that it would be difficult to make any uniform rule of qualifications satisfactory to all the States. It would be hard and disagreeable for the same persons at the same time to vote for representatives in the State legislatures and be excluded from voting for those in the national legislature. This objection weighed little with Morris, who cited New York and other States which required different qualifications for voting for governor and for representatives. Ellsworth silenced many objections when he remarked that the people would not readily subscribe to the new Constitution if it disfranchised them, and he laid down the principle, which has been adopted in this country, that the States were the best judges of the circumstances and temper of their own people, and of the qualifications of voters.2

1 For December, New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina; for May, South Carolina and Georgia.

2 This principle was examined at great length at the time of the adoption of the Fourteenth and Fifteenth amendments. See the account post. Though the manner in which the ratification of this was obtained may seem to militate against the principles laid down in the text, yet, the exclusive right of the States to prescribe the qualifications of voters has been clearly laid down by the Supreme Court. See the Slaughter-house cases, 16 Wallace, 36; Minor vs. Happersett, 21 Wallace, 162; United States vs. Cruikshank, 92 United States, 542, and ex-parte Yarborough, 110 United States, 651.

But there was a strong disposition to limit the suffrage to landowners. Dickinson and Morris and the national party men, generally, advocated the restriction.

Ellsworth, Mason and Franklin and also Rutledge, favored the extension of the franchise, believing that its limitation to freeholders was contrary to the principles on which government in America was founded. In Pennsylvania at this time the sons of freeholders were permitted to vote, a privilege which has never been withdrawn.1 But the provision to allow non-freeholders to vote seemed to many too dangerous an innovation, though as Gorham pointed out2 it had been tried in Philadelphia, New York and Boston, in which merchants and mechanics voted, and he did not believe that the cities and large towns were seats of corruption. The inexpediency of attempting to harmonize the contradictory qualifications for voting which prevailed in the States was apparent, as also was the wisdom of the Committee in defining the qualifications of the electors of Congressmen to be the same as those of electors of the most numerous branch of the State legislatures.

Emigration from Europe had ceased about 1750, and it did not begin again in large numbers until after 1820; but in 1787, a strong migration from the old States into the West had already set in, and it was confidently expected that emigration from Europe would soon again begin. The general attitude of the public mind at this time, was unfriendly, though not hostile, to foreign immigration. There was a curious and unreasonable fear that foreigners would come over in large numbers and make laws for America. Out of this fear sprang native Americanism and the disposition to hedge citizenship

1 Commonly called, "voting on age."

2 August 8.

about by the requirements of a long term of residence, yet, there were liberal minds in the Convention on this matter. Mason desired a preliminary residence for citizenship, that would enable the foreigner to possess a sufficient legal knowledge to equip him to serve as a representative in Congress, and for this three years were not enough. Some rich foreign nation, like Great Britain, might send over men who might bribe their way into Congress for insidious purposes. Mason and Morris suggested seven years as a time for citizenship, with which all the States, except Connecticut, agreed.

The term "resident of the State" was objected to as more open to misconstruction than "inhabitant." Madison, Wilson and Sherman preferred the old term because of its settled meaning, but Morris objected to both terms. A non-resident was not likely to be chosen to Congress. But Read, with a prescience unusual among the members, reminded Rutledge, who had proposed a seven years' residence, that the Convention was forming a national government, and that so long a period as he suggested did not correspond with the idea that the people of the United States were one people. If it was adopted, the new States in the West, Madison said, could not have representation. It would interweave local prejudice and State distinctions in the Constitution, which, said Mercer, was intended to cure them. He wished to employ language that would not exclude men who had once been inhabitants of a State and were returning to resume it. But Mason insisted on the principle that sufficient time must be required to give a candidate knowledge of local circumstances. It was agreed, then, without division, that the word "inhabitant" should be used; and the requirement of residence in a State without specifying the term was agreed to as the Committee had advised.

At Williamson's suggestion, the number of representatives should be determined according to the rule of direct taxation.1 This decision, on so critical a part of the plan, made almost by unanimous vote, alarmed King because of its relation to the admission of slaves into the rule of representation. If Williamson's purpose was to exclude the slaves, King could not support the rule, for it would be far from acceptable, he thought, to a great part of the people. It would weaken the general government and tie the hands of the legislature so that the importation of slaves could not be prohibited and exports could not be taxed. If the slave trade was to continue, he believed that the exports produced by slave labor should supply a revenue for the general protection. He declared that he could never agree to an unlimited importation of slaves and to allow them to be represented in the national legislature. Either slaves should not be represented or exports should be taxed.

Now that the point of representation had been settled, after much difficulty and deliberation, and especially as the article just amended did not preclude any arrangement whatever affecting the slave trade in any part of the Constitution, Sherman, though thinking the slave trade iniquitous, did not think himself bound to oppose it. Madison objected to the apportionment of one member for every forty thousand inhabitants, as a perpetual rule, on account of the increase of population, which would make the House of Representatives too large. Gorham, with less confidence, doubted that the government would last so long as to produce this effect. It was hardly supposable, said he, that this vast country, including the

1 New Hampshire, Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, aye; New Jersey and Delaware, no.