SECTION III.

THE SUBJECT CONTINUED.

On the 29th of May, 1787, the convention was organized, and Mr. Randolph, of Virginia, offered sundry resolutions resuming the word national, though it had been rejected by all the states, and proposing "that a national legislature shall have the right "to legislate in all cases in which the harmony of the United "States may be interrupted by the exercise of individual legis

lation, and to negative all laws passed by the several states, “contravening, in the opinion of the national legislature, "the articles of the union, or any treaty under the union.” The resolutions also proposed "a national executive and a na“tional judiciary; that the executive and a convenient number "of the national judiciary ought to compose a council of revi“sim, with authority to examine every act of the national legis"lature, before it shall operate, and every act of a particular "legislature, before a negative thereon shall be final; and that "the dissent of the said council shall amount to a rejection, un"less the act of the national legislature be again passed, or that "of a particular legislature be again negatived by

"the members of each branch.”

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of

It is worthy of particular observation, that in this project, the constructive supremacy now claimed for the federal government over the articles of the union," was proposed to be given to a national government; because the actual consideration of this identical power, and its absence from the constitution as it was finally adopted, seems to be irresistible evidence that it does not exist. Throughout Mr. Randolph's resolutions, fifteen in number, the word national is adopted, and the word Congress rejected, except in reference to the Congress under the confederation of 1777, proving that the word was applicable to a federal union, but not to a national government.

The proposed national form of government was ultimately renounced or rejected, but the negative power over state laws with which it was invested, was much less objectionable than that now constructively contended for on behalf of the federal government. The president was to be one of a council of revision, and the influence of the states in his election might have afforded to them some feeble security, a little better than could be expected from a council of revision composed of a fow federal judges. Both the legislative branches which were to pronounce the first veto upon state laws, were also to be exposed to popular influence, and might feel all the responsibility of which a body of men are sus ceptible in extending its own power by its own vote. A judicial veto, as now contended for, is exposed to no responsibility whatever. The council of revision, with the president at its head, were only to be controlled by more than a majority of the national legislature. This was evidently a better security for the small states, than a power in a majority of Congress to abrogato state laws. But all these alleviations of the power in a national form of government to negative stato laws, were unsuccessful, because the principle itself, however modified, was inconsistent with the federal form adopted. It can never be conceived that the principle of a negative over stato laws, audibly proposed and rejected, had silently crept into the constitution. This was quito consistent with the national form of government proposed, but quito inconsistent with the federal form adopted. The project for a national form of government was deduced from the doctrine, as we shall hereafter see, that the declaration of independence had committed the gross blunder of making the states dependent corporations; that it was in fact a declaration of dependence. When this doctrine failed in the convention, the national negative over state laws died with it. Revived by con struction, it assumes a far more formidable and consolidating aspect than as it was originally offered, because the usurped ne gative over stato laws, by a majority of a court or of Congress, would not have its malignity to the states alleviated by the checks to which the project itself resorted. Without these checks, even the advocates for a national form of government thought such a negative intolerable. The project contemplated

a mixed legislative, executive, and judicial supremacy over state laws, so that one department of this sovereignty, like that of the English, might check the other, in construing "the articles of the union," and did not venture even to propose, that a government should be established, in which a single court was to be invested with a supreme power over these articles, or the constitution. The idea seems to be a political monster never seen in fablo or in fact.

On the samo day, Mr. C. Pinckney offered a draft for a federal “constitution." It recognised the people of the several states; proposed "that the style of the government should be "the United States of America; that the legislative power "should be vested in a Congress, to be chosen by the people of "the several states; enumerated limited powers to be exercised "by this Congress; proposed a president of the United States; "and that the legislature of the United States should have "power to revise the laws of the several states that may be "supposed to infringe the powers exclusively delegated to « Congress, and to negative and annul such as do??

This project for a form of government being somewhat at enmity with the resolutions, hostilities between them forthwith commenced, and the resolutions obtained successive victories over a nominal rival, during the greater portion of the time expended by the convention. The journal, however, is too obscure to supply us with a history of a controversy which related only to the form of a national government mutually advocated. We do not find in the constitution the negative over state laws proposed both in the resolutions and the draft. As it was distinctly pro posed by both, it must have been maturely considered and doubly rejected. The reasons of these rejections were, that though a supreme power of construction, was consistent with, and might have been intrusted to a government throughout responsible to ono people or nation, it was inconsistent with and could not therefore be intrusted to a federal form of government, or any of its departments. And hence when the federal form of govern ment prevailed over the national form, the alteration of the fede ral articles was exclusively limited to the modes prescribed, and not extended to a supreme power of construction in the federal

government or any of its departments. The constitution was not intended to be an alembick, fraught with heterogeneous principles, to condense the tortuosities of construction, and distil from taciturnity a supreme power of construction, and consequently a negative upon state legislation.

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May 30, Mr. Randolph, seconded by Mr. G. Morris, moved that an union of states merely federal, will not accomplish the "objects proposed by the articles of confederation, namely, "common defence, security of liberty, and general welfare;" and by Mr. Butler, seconded by Mr. Randolph, “that a na❝tional government ought to be established, consisting of a "supreme legislative, judiciary, and executive." In opposition to this resolution it was moved, "that in order to carry into exe"cution the design of the states in forming this convention, "and to accomplish the objects proposed by the confederation, "a more effective government, consisting of a legislative, judi66 ciary, and executive, ought to be established," excluding the words national and supreme. But it was resolved "that a na"tional government ought to be established, consisting of a 66 supreme legislative, judiciary, and executive." The collision between these resolutions, and consequently the debate, was produced by the words national and supreme. Massachusetts, Pennsylvania, Delaware, Virginia, North-Carolina, and SouthCarolina, voted for this resolution, Connecticut against it, and New-York was divided; so that a convention of only eight states decided by a majority of six, that the states should be annihilated. It was late in the session before twelve states assembled; but whether an accession of votes, or the repentance usually attached to precipitancy, produced the ultimate discomfiture of the resolution to establish a supreme supreme national government, can only be conjectured by computing the consequences likely to result from an excessive zeal for this consolidating policy, and from a refrigeration inculcated by an accession of votes or a firm opposition.

However this may be, it is plain that some members of the convention came with preparatory impressions that the distinction of states ought to be destroyed, and availed themselves of a thin convention to obtain a footing for that opinion. On the

first day of the session, two projects are offered, both founded upon the principle of a supreme national government, and on the second, the deputies of six states resolve to annihilate thirteen. The hastiness of this movement indicates a design to obtain a victory by surprise, ascertains the existence of a concert unfaithful to credentials, and displays a rooted hostility to the state governments. A blow so unexpected and violent was endeavoured to be suspended by succinctly urging in the adverse resolution, that it was the duty of the convention "to carry into "execution the design of the states," but not a single day is allowed for consideration, and the treachery of sacrificing duty to prepossession is instantly perpetrated. The states and the duty are entombed together, by a resolution to establish a supreme national government.

At the threshold of the business, we clearly discern that the convention was apprized of the meaning of words. One resolution asserts that a government merely federal would not answer, and that a supreme national government ought to be established. The rival resolution rejects the words national and supreme, as incompatible with a federal union. One avails itself of the intimation from Congress in favour of a national government, and rejects the intimations of the same Congress in favour of a federal government; the other prefers the latter intimations, because they were legitimated by the states, and rejects the former, because it was rejected by the states. These adverse opinions were evidently dictated, one by the political opinion already invented, of a consolidated nation; the other, by the actual existence of United States. The contrast between the two preliminary resolutions in a very important view, depends on a single word. One proposed “a supreme legislative, judiciary, and executive," the other "a legislative, executive, and judiciary," excluding the word supreme. This word was adopted as suitable for the proposed national government, and rejected, as inconsistent with the federal form of government, to which the states had confined their deputies. The adoption and rejection conspire to furnish us with a definition of this formidable word, both by the national and federal parties in the convention. The sense in which both of these parties understood it, caused its