proposal was gradually gaining favor; but for the CHAP. moment failed by an equal division. V. July 18. The trial of impeachments of national officers was 1787. taken from the supreme court; and then, in the words of Madison, its jurisdiction was unanimously made to "extend to all cases arising under the national laws, or involving the national peace and harmony." Controversies which began and ended in the several states were not to be removed from the courts of the states. 99 1 The convention had still to decide how the new constitution should be ratified. "By the legislatures of the states," said Ellsworth, and he was seconded by Paterson. "The legislatures of the states have no power to ratify it," said Mason. "And, if they had, it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors, and the national government would stand in each state on the tottering foundation of an act of assembly. Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them." "One idea," said Randolph, "has pervaded all our proceedings, that opposition, as well from the states as from individuals, will be made to the system to be proposed. Will it not, then, be highly imprudent to furnish any unnecessary pretext by the mode of ratifying it? The consideration of this subject should be transferred from the legislatures, where local demagogues have their full influence, to a field in which their efforts can be less mischievous. Moreover, some 1 Gilpin, 1138; Elliot, 332. 23. V. CHAP. of the states are averse to any change in their constitution, and will not take the requisite steps unless 1787. expressly called upon to refer the question to the 23. people.' July "The confederation," said Gerry, "is paramount to the state constitutions; and its last article authorizes alterations only by the unanimous concurrence of the states." "Are all the states," replied his colleague Gorham, "to suffer themselves to be ruined, if Rhode Island, if New York, should persist in opposition to general measures? Provision ought to be made for giving effect to the system, without waiting for the unanimous concurrence of the states." " "A new set of ideas," said Ellsworth, "seems to have crept in since the articles of confederation were established. Conventions of the people, with power derived expressly from the people, were not then thought of." "A reference to the authority of the people expressly delegated to conventions," insisted King, "is most likely to draw forth the best men in the states to decide on the new constitution, and to obviate disputes concerning its validity." 4 Madison spoke with intense earnestness. "The difference between a system founded on the legisla tures only and one founded on the people is the dif ference between a treaty and a constitution. A law violating a treaty, ratified by a pre-existing law, might be respected by the judges; a law violating a constitution established by the people themselves would be considered by the judges as null and void. A 1 Gilpin, 1177-1179; Elliot, 352, Gilpin, 1181; Elliot, 354. 353. 4 Gilpin, 1182, 1183; Elliot, 355. V. breach of any one article of a treaty by any one of CHAP. the parties frees the other parties from their engagements; a union of the people, under one constitution, 1787. by its nature excludes such an interpretation."! After a full debate, the convention, by nine states against Delaware, referred the ratification of the new constitution to an assembly in each state to be chosen specially for that purpose by the people.' July 23. The proceedings of the federal convention for the 24-26. establishment of a national government, consisting of twenty-three resolutions, were referred to a committee of detail, five in number, who were ordered to prepare and report them in the form of a constitution. With them were referred the propositions of Charles Pinckney and the plan of New Jersey. The federal convention selected for its committee of detail three members from the North and two from the South-Gorham, Ellsworth, Wilson, Randolph, and Rutledge, of whom the last was the chairman. By ancestry Scotch-Irish, in early youth carefully, but privately, educated, afterward a student of law in the Temple at London, Rutledge became the foremost statesman of his time south of Virginia. At the age of twenty-six he began his national career in the stamp act congress of 1765, and from that time was employed by his state wherever the aspect of affairs was the gravest. Patrick Henry pronounced him the most eloquent man in the congress of 1774; his sincerity gave force to his words. In the darkest hours he was intrepid, hopeful, inventive of resources, 'Gilpin, 1183, 1184; Elliot, 355, * Gilpin, 1185; Elliot, 356. CHAP. and resolute, so that timidity and wavering disapV. peared before him. To the day when disease im1787. paired his powers he was, in war and in peace, the 24-26. pride of South Carolina. That state could not have July 26 selected an abler representative of its policy on the payment of the members of the national legislature from the treasuries of the states, on the slave-trade, the taxation of exports, and the requisition of more than a bare majority of the legislature to counteract European restrictions on navigation. Of his associates, Gorham was a merchant of Boston, who from his own experience understood the commercial relations of his country, and knew where the restrictive laws of England, of France, and of Spain injured American trade and shipping. Ellsworth, who had just established harmony between the small and the larger states by a wise and happy compromise, now found himself the umpire between the extreme South and the North. Cotesworth Pinckney called to mind that if the committee should fail to insert some security to the southern states against an emancipation of slaves, and against taxes on exports, he should be bound by duty to his state to vote against their report.' After this the convention, on the twentysixth of July, unanimously adjourned till Monday, the sixth of August, that the committee of detail might have time to prepare and report the constitution." The committee in joint consultation gave their August unremitting attention to every question that came be 'Gilpin, 1187; Elliot, 357. 2 Gilpin, 1220; Elliot, 374, 375. V. July 26 August 6. fore them. Their best guides were the constitutions CHAP. of the several states, which furnished most striking expressions, and regulations approved by long expe- 1787. rience. There is neither record nor personal narrative of their proceedings, though they were invested with the largest constructive powers; but the conduct of its several members may be determined by light reflected from their own words and actions before and after. Meanwhile the interest and anxiety of the country were on the increase. "If what the convention recommend should be rejected," so wrote Monroe to Jefferson the day after the adjournment, "they will complete our ruin. But I trust that the presence of General Washington will overawe and keep under the demon of party, and that the signature of his name to the result of their deliberations will secure its passage through the Union." "The weight of General Washington is very great in America," wrote Grayson to Monroe, "but I hardly think it sufficient to induce the people to pay money or part with power." 2 1 Wilson in Gilpin, 1249; Elliot, 385, and Rutledge in Gilpin, 1284; Elliot, 403. VOL. II. 2 Grayson to Monroe, 29 May, 1787. MS. 7 |