70 years or more; but will there be a single reader of this article who has noted how short a time it took to frame the Constitution? Has there been a single commentator or historian who has adequately shown how exceedingly brief the "given time" was? Less than a hundred working days measured it.

Moreover, the framers had had no means of previous personal communication by telegraph and almost none by mail; there were no stenographers or typewriters; there was, indeed, no clerical assistance; for the proceedings of the convention were secret and the clerical work was done by great men. When we see recent conventions with modern facilities for rapid work spending months in putting a few patches on existing State constitutions, we can best appreciate the ability of the men who in 85 working days forged the great compact of the people of the United States with themselves a compact which has lasted more than a century substantially unchanged, which survived the storm of the greatest civil war of the modern world, which has expanded with an unforeseen and unprecedented expansion of inhabited territory from a narrow strip upon the Atlantic seaboard to the shores of the Pacific, and which, notwithstanding changed conditions of life and thought, has grown steadily in the power of moral obligation and become more and more truly the "supreme law of nearly 100,000,000 people.

As the time was brief, so were the framers few. The convention was composed of 55 members; the Constitution was signed by 39, including Washington; 51 members took part in the debates (according to the most complete report we have of them, the Journal of Madison), again including Washington. It is generally assumed that he took no part in the debates; but Prof. Fiske has said in words which cannot be too often brought before the American citizen:

It was suggested that palliatives and half measures would be far more likely to find favor with the people than

any thorough-going reform, when Washington suddenly interposed with a brief but immortal speech, which ought to be blazoned in letters of gold and posted on the wall of every American assembly that shall meet to nominate a candidate or declare a policy or pass a law, so long as the weakness of human nature shall endure. Rising from his President's chair, his tall figure drawn up to its full height, he exclaimed in tones unwontedly solemn with suppressed emotion: "It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If. to please the people, we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God."

Some of the 55 took no real part in framing the Constitution, and some were obstructionists. Their objections may have exercised a wholesome influence on the convention, but added much to the cares and perplexities of the greater men who assumed the responsibility and did the work. But whether we take the 39 members who signed the Constitution, or the 51 who took part in the debates, or the 55 who composed the convention, the number seems perilously small to be intrusted with the titanic task of founding for all time a great and growing and intensely active nation. Edmund Randolph, speaking of the time when the Articles of Confederation were framed, apologetically called it "the then infancy of the science of constitutions and of

confederacies." He might have said the same of the moment at which he was addressing the convention. Very little did the world then know of the science of constitutions or confederacies! He well summed up the new and added difficulties which confronted the convention, and which it must meet and overcome:

The inefficiency of requisitions was unknown [to the framers of the Confederation] -no commercial discord had arisen among any States no rebellion had appeared, as in Massachusetts foreign debts had not become urgent the havoc of paper money had not been foreseen treaties had not been violated; and perhaps nothing better could be obtained, from the jealousy of the States with regard to their sovereignty.

There were other difficulties which Randolph, like a tactful statesman, left unnoticed. At one end of the line of financial troubles Rhode Island stood intent on her great scheme of making fiat paper money the equivalent of gold and silver by imprisoning the citizen who charged more for a commodity in the one kind of money than in the other. At the other end of the line stood New York, with the greatest custom-house of the country, her chief source of revenue, which she would be called upon to surrender to the new Federal government as a part of the price she must pay for coming within the sovereignty of the Constitution. Virginia owned a vast territory which she must cede that it might become the public lands of the United States. Even in the greatness and authority of the men who composed the convention there were dangers and impediments. Three of the greatest proposed things which would have defeated the great work: Franklin, the wisest member of the convention, proposed that the legislative power be vested in a single house, which would have been substantially the House of Representatives; Hamilton, the brilliant genius of the convention, advocated a government of which the President and the senators should hold office during good behavior, that is, for life; Madison, the most sagacious statesman in the convention, would have cast the responsibility of legislation on the judiciary by lodging a veto power in the supreme court. Any one of these provisions would have wrecked the Constitution before it was adopted; and any one of them, if it had been adopted, would have given us a government essentially different from that which we

possess.

There is still another extraordinary fact connected with the framing of the Constitution which has received little if any attention, and substantially no comment. In the order of philosophical research the first subject of investigation would be the means or process by which the framers worked. A true philosopher, contemplating the clearness and conciseness of the Constitution, the masterly handling of the chief elements of the future government, the wonderful adaptation of insufficient means to a glorious end, would instantly exclaim, "Such a work is not born of the human mind completed! What was the secret process by which these great inventors attained their grand result"? And the philosopher would find, as he suspected, that even as the Constitution stands alone in the records of constructive statesmanship, so do the means and methods by which the convention did its work. It speaks badly for the century that none of the lesser conventions which have assembled frequently to experiment with

State constitutions has done its work in the same way. In a word, there is nothing which equals the Constitution; there is nothing which approaches the patient, painstaking workmanship of the great convention.

At the beginning, propositions for consideration and discussion were tentatively placed before the convention in an abstract form. These propositions were embodied in 15 resolutions, which were immediately referred to the Committee of the Whole. They were taken up one by one, and considered and discussed and amended or rejected or adopted or postponed for later consideration. The abstract of a part of a single day's proceedings will give a clear idea of the way in which the convention worked:

Tuesday, June 5. Mr. Randolph's ninth proposition-The national judiciary to be chosen by the national legislature - Disagreed to-To hold office during good behavior and to receive a fixed compensation - Agreed to - To have jurisdiction over offenses at sea, captures, cases of foreigners and citizens of different States, of national revenue, impeachment of national officers, and questions of national peace and harmony-Postponed.

At the end of two weeks of such consideration and discussion (13 June), the Committee of the Whole reported the conclusions which had so far been reached in the form of 19 resolutions. But everything was still abstract and tentative. No line of the Constitution had yet been written; no provision had yet been agreed upon. The 19 resolutions in like manner were taken up, one by one, and in like manner considered and discussed and amended or rejected or adopted or postponed. Other propositions coming from other sources were also considered; and so the work went on until 26 July, when the conclusions of the convention were referred to the Committee of Detail, and the work of reducing the abstract to the concrete began. The convention then adjourned to 6 August, to enable the committee to "prepare and report the Constitution."

On 6 August the Committee of Detail reported and furnished every member with a printed copy of the proposed Constitution. Again the work of consideration began, and went on as before, section by section, line by line. Vexed questions were referred to special committees, composed of one member from each state, amendments were offered, changes were made, the Committee on Detail incorporated additional matters in their draught, until, on 8 September, the work of construction stopped. But not even then did the labors of the convention cease. On that day a committee was appointed, "by ballot, to revise the style of, and arrange, the articles which had been agreed to.". This committee was afterward known as the Committee of Style. It reported on 12 September, and the work of revision again went on until Saturday, the 15th. On Monday, the 17th, the end was reached, and the members of the convention signed the Constitution. Well might Franklin exclaim in his farewell words to the convention: "It astonishes me, sir, to find the system approaching so near to perfection as it does! He had been overruled more than once in the convention; provisions which he had proposed had been rejected; provisions which he had opposed had been retained; but he was a great man and saw that a great work had been accomplished.

This article should treat of the Constitutional changes of the century. But the extraordinary fact is that from the framers' point of view there has been, with one trivial exception, absolutely no change in the Constitution of the United States. "Are there not 15 amendments," it will be asked, and "do not the presidential electors vote for a President and Vice-President in a different way, and is there not an unwritten change in the Constitution by virtue of which the selection of Presidents has passed directly to the people, acting through their political national conventions? All these questions may be answered generally in the affirmative; and yet the fact remains that from the framers' point of view there has been, with one trivial exception, absolutely no change in the Constitution of the United States.

The work of the great convention was the making of a government; and the government which the framers made has remained absolutely unchanged. Madison, who was a wary as well as sagacious statesman, carried the first ten amendments through the first Congress at the first session to assuage public excitement and strengthen the new government and close the mouths of those who railed against it. He introduced into the tenth amendment a rule of construction which would not have been adopted by the convention, a clause which politically has made much mischief during these one hundred years, but which under the necessities of judicial construction has amounted to nothing, namely, that powers not delegated or prohibited by the Constitution "are reserved to the States respectively or to the people." The other provisions of the ten amendments are little more than quotations from the Bill of Rights. The constitution contained but few such declarations: that the writ of habeas corpus shall not be suspended; that no bill of attainder or ex post facto law shall be passed; that the trial of all crimes shall be by jury; that such trials shall be in the State where the crime was committed; that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. The ten amendments declare that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridge the freedom of speech, or the right of the people peacefully to assemble and petition the government for a redress of grievances, etc. (Article 1). They provide that no person shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation, etc. (Article 5). These are great principles and noble sentiments, but their efficacy depends upon the rectitude of the government and the vigor and integrity of the people. No Congress would ever have dared to "make a law respecting an establishment of religion," though there had been no Constitutional prohibition; and many unfortunate citizen has lived and died with his claim for property taken for public use still unpaid, notwithstanding the Constitutional guaranty of "just compensation." In a word, the ten amendments served their temporary purpose; they have doubtless warned off Congress occasionally when in the heedlessness of the short session or in the heat of political excitement a legislative wrong might otherwise have been

an

done; they have in a few instances secured the individual citizen, judicially, in his natural right to life, liberty, or property; they continue to be a standing moral restraint upon the legislative and executive branches of the government; and they form a noble decalogue of great principles to be kept before the eyes of all American citizens; but, nevertheless, the judicial records of the century show that the government which the framers of the Constitution established would have moved on just as it has done, if these ten amendments had never been proposed. The conscience and intelligence of the country have been the real safeguards of the citizen against injustice and oppression.

The Eleventh Amendment was caused by the extreme ground taken by the early supreme court in Chisholm v. Georgia (2 Dall., R. 419), and the incipient rebellion of that State. Its purpose was to overrule that decision and to exempt a State from suit by a citizen. If Marshall had been upon the bench the decision would never have been made; and, singularly, it was overruled by the sanie court a hundred years afterward (Hans v. Louisiana, 134 U. S. R. 1). The Thirteenth, Fourteenth, and Fifteenth Amendments grew out of the Civil War. They abolished slavery; they impose restraints upon State governments; they confer on some persons constitutional rights; they guarantee certain rights, privileges, and immunities to citizens and persons; and they contain some provisions relating to representation in Congress. Much litigation has been caused by them; some statutes have been held constitutional and some unconstitutional; a larger proportion of representation has fallen to the Southern States; the guaranty given to all citizens of the right to vote without regard to race, color, or previous condition of servitude" is not absolutely effective, and the government of the United States moves on precisely as it did before.

It has been said herein that from the point of view of the framers of the Constitution their work has been changed in only one trifling particular. That change relates to the election of President, and was effected by the Twelfth Amendment. Under the Constitution as it originally stood each elector voted for two persons for President. He who should have the greatest number of votes would become President; he who might come next would be Vice-President. Under this provision, Mr. Lincoln, in 1861, would have become President, and Mr. Seward Vice-President. That is to say, the Republican electors, following the direction of their party, as expressed by the national convention, would have cast all their votes for Mr. Lincoln, and all but one for Mr. Seward. The

purpose of the framers was a wise one: to secure for the country the two strongest statesmen of the party constituting for the time being the majority of the people, to fill the offices of President and Vice-President. No better plan could have been devised for obtaining a strong executive. We see a weak and modified application of the principle in national conventions when the defeated "wing of the party is placated by being allowed to designate the candidate for Vice-President. But in 1801 there had been a tie, whereby the electors had failed to elect, and the election had gone into the House. If it had not been for that mishap, the Twelfth Amendment would not now exist;

and if the original system had survived until the time of rapid communication by railroad and telegraph and better party organization, it is safe to say that it would now be in unquestioned operation. Political conventions would long ago have adopted its leading principle, and the struggle would have been as to which of the two strongest candidates should be first or second upon the ticket. The system would have given greater dignity to the office of Vice-President, and would have brought the possible importance of that office always before the eyes of the citizen. But whether we think well or ill of the original method, one thing is certain, that the only change made by the Twelfth Amendment is a trivial one of administrative detail. After all the changes this country has passed through in the last hundred years changes in civilization, of territory, of population, of ideas, education, and public convictions, and individual lifechanges such as the world has never witnessed in one country or in one century, the only change made in the Constitution has been the paltry one of having the electoral vote cast in one form instead of in another.

In one

The unwritten amendment of the Constitution, as it has been called, also relates to the selection of the President. It is said by some of the commentators, and indeed it is now generally believed, that the electoral colleges were intended to be "deliberative bodies." sense this is true in the legal sense. The electors are not ministerial or administrative officers; they do not perform a specific work in a way determined by higher official authority; in legal contemplation the responsibility of their action rests upon themselves. But the framers of the Constitution never supposed that the electors would disregard the political pledges upon which they were chosen, or that the American people, either directly or through their State legislatures, would blindly choose electors to evolve a President out of their inner consciousness. On the contrary, they contemplated the successful candidates receiving the votes of "a majority of the whole number of electors," and they required the electors to vote "in their respective States," and to vote on the same day. If they had framed a provision requiring all of the electors to convene at the seat of the government in one body, and there in their own way and time proceed to choose a President, there would be good reason for saying that actual deliberation was intended; but they did not give to the electors one single power of attribute by virtue of which they could deliber

ate.

tempt failed. The question before the convenThat very thing was attempted and the at

tion was, in effect: "Where shall the deliberative power to choose the President be vested when the formal casting and counting of the electoral vote fails to elect? The answering propositions were, "In the Senate," or "In the House of Representatives." Then Spaight, of North Carolina, said that "he would prefer their [the electors] meeting altogether [all together] and deciding finally"; and he moved "that the electors meet at the seat of the general government"; and all of the States except North Carolina voted against it. The evidence is therefore both negative and positive-the convention did not invest the electors with the

necessary powers and means for deliberation, and positively refused to do so; and refusal is conclusive of non-intent.

The idea that it was ever intended that the electors should nominate the candidate for whom they themselves should vote is a myth which has been unthinkingly reiterated by most eminent writers, but which does not rest upon a single fact. Nothing perplexed the convention more than the subject of the executive. Plan after plan was weighed and found wanting. The electoral system was late in coming to the front, and was the solvent of many difficulties. Hamilton early foresaw the inevtable, and proposed that "the selection be made by electors chosen by the people." Madison, later, said that the option before the convention "lay between an appointment by electors chosen by the people and an immediate appointment by the people"; and he at the same time said that "the electors would be chosen for the occasion, would meet at once, and proceed immediately to an appointment." It was as well understood then as it is now that they would but register the decree of the political power which appointed them. The internal evidence of intent is even more conclusive. He who supposes that the framers intended that thirteen different bodies should convene in thirteen different places at one time for one object and for one day, and that object the selection of the executive of a nation, confesses a most superficial knowledge of the greatest constructive statesmen of their century and of the great work which they deliberately planned and built. And what better could the framers of the Constitution have done? Wilson, who proposed "an election by the people," was "almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical." Gerry, "who liked the principle," "thought the community not yet ripe"; he "was for waiting till the people should feel more the necessity of it." Gouverneur Morris admitted "that difficulties attended this mode," but thought that they would be "found superable." Madison liked an election by the people best, but acknowledged "the disadvantage this would throw on the smaller States." Ellsworth declared "the objection drawn from the different sizes of the States unanswerable."

It has been a fashion of late to speak of the electoral system as curious machinery which may give rise to serious complications; but viewed amid the difficulties and conditions and limitations of 1787, there is no stroke of practical statesmanship in the Constitution more wise and ingenious. The choosing of candidates soon drifted into Congress; with the coming of the steamboat and the railroad it passed from the congressional caucus to national conventions; and yet, notwithstanding these radical changes of usage, the expansion of territory, the multiplication of States, and the unscrupulousness of political partisanship, there have been no more mishaps than are incident to any system of human device.

To foretell the future of the Constitution is to foretell the future of the American people. They will change before it is changed. As with Washington and Lincoln, the more we know of them the better they appear; so of the Constitution, the more we contemplate its trials the better it appears adapted to our national

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needs. With the growth of knowledge there has been a growth of reverence. The people will experiment with State constitutions and tear them up and experiment again, but when it comes to the Constitution-the great Constitution-there is a sturdy sentiment of "hands off," and that sentiment is incomparably stronger now than it was at the beginning of the century. Judicial construction has moved backward rather than forward, and where Marshall left it it stands, substantially, to-day.

The amendatory provision of the Constitution is an unbarred door which may be opened at any time. It was wise and prudent of the framers to leave it thus unlocked. But he who tries to swing open that door will find two things of which he did not reckon: first, a vis inertia in the ignorance and indifference of congressmen - in their doubts whether the amendments will be popular in their absorption in lesser things; and, second, that there is always some one on the other side pressing back the door.

as

At this time there is an amendment pending to have senators elected directly by the people. It is a popular amendment, and yet is absolutely needless. The men who framed the Constitution constructed it of general principles, and left it flexible for administrative details. Long ago, Abraham Lincoln and Stephen A. Douglas were senatorial candidates, and were directly candidates before the people of Illinois as Mr. Gladstone and Lord Beaconsfield ever were before the people of England; and the legislature of Illinois carried into effect the public will. During the past year the people of North Carolina have nominated a candidate for senator by what is termed a "direct primary,” and the legislature of North Carolina will give effect to their will. When the people of the United States find that it is easier to instruct the delegates they send to State conventions to proceed and nominate a candidate for United States senator than to obtain an amendment to the Constitution, the election of senators by the people will in practical effect take place.

CHARLES C. NOTT,

Chief Justice Court of Claims.

Constitution of the United States, the governing instrument of the United States of America, adopted in 1787, when it took the place of the Articles of Confederation. (For details of its adoption see CONSTITUTION, FRAMING OF THE.) Political discussion of the time played a much greater part in the compromises of this instrument than its provisions in turn exerted on political history in the following period, which to a surprising degree may be attached to only two clauses of the instrument and to these two simply because of their vagueness, and their mutually contradictory nature. Section 8 (18) in defining the powers of Congress adds the blanket provision of power, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The second historic clause occurs in the Amendments, where Article X reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The

former is the famous elastic clause. In this accommodating provision interpreted radically, or conservatively, in the light of the Tenth Amendment all shades of political theory find proof-texts for their peculiar doctrines. So immediately upon the formation of the new government two political parties arose, the Democratic-Republican party, strict constructionists of the elastic clause, who limited the powers of Congress to the minimum and exalted State rights to the maximum, and the Federalist party in favor of a highly centralized government doing everything possible for and in the States. Around this fundamental difference may be grouped the great political questions up to and culminating in the Civil War, and to a less degree recent political discussions are based upon the same variance in interpretation of the Constitution, although neither party now holds to the strict construction theory as it was set forth by the early opponents of the Federalists. This change has been brought about very largely by practical experience of affairs, it being well known that the foremost strict constructionists who have come to the presidential chair were forced by the exigencies of administration to a broader exposition of the clause. This was notably the case in the administrations of Jefferson and of his immediate lieutenants and successors.

The text of the Constitution follows: CONSTITUTION OF THE UNITED STATES

WE the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE I

SECTION 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION 2. 1 The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

2 No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

3 Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

4 When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.

5 The House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeachment.

SECTION 3. 1 The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years; and each senator shall have one vote.

2 Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereot may make temporary appointments until the meeting of the legislature, which shall then fill such

vacancies.

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3 No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.

4 The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

5 The Senate shall choose their other officers, and also a president pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.

6 The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the chief justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present.

7 Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. SECTION 4. I The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.

2 The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

SECTION 5. 1 Each House shall be the judge of the elections,, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

2 Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

3 Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal. 4 Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

SECTION 6. I The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

2 No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.

SECTION 7. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

2 Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it. with his objections to that House in which it shall have originated, who shall