neither institutions nor constitutions will forestall foreign rule.

The form of government created by the constitution is novel in this that it is both confederative and national. Out of confederated states rises a distinct entity concerned with functions which it has been empowered by the states to perform; and this entity is divided according to the principles of Montesquieu into the departments of legislative, executive and judicial, acting within their delegated powers as if a general government had been created which had obliterated every feature of the confederacy. In this creation a step was taken beyond any former attempt. It was an evolutionary development beyond the philosophy of all political thinkers who lived before that day.

The necessity for revising the old articles of confederation was felt on all hands; but at the same time the people feared that the benefits of the revolution might be lost through the creation of a centralized government. The sedate, the orderly, the conservative elements of society, the people who amass wealth and attain position and power through its influence, complained of the excesses of democracy. They took advantage of the disorder which follows a war, the embarrassment which accompanies interrupted commerce to argue in favor of a stronger government. And all the ills which afflicted the new republic attributable not to the form of government entirely but to events from which they logically flowed were charged to the weakness of the confederacy. Nevertheless the hostility against the creation of a central government in which local self government would be

engulfed was so great that out of sixty-five delegates selected to attend the constitutional convention sixteen failed to appear. Patrick Henry declined the appointment altogether; and ten refused to sign the constitution after it was formulated. Of the three delegates sent by New York two returned when they feared that the convention was proceeding not to revise the articles of confederation but to go much beyond that in the formation of a government unknown and probably of doubtful power. These facts demonstrate the feelings of the most thoughtful people of the time and their aversion to a government which could be tortured by construction or development into an engine of oppression.

But Mr. Madison in Article 44 of the Federalist insisted that the constitution invigorated the powers of the articles of confederacy, and added but a few new powers. These he said were the power to raise revenue by taxes directly levied upon the people; the power to make naturalization laws uniform throughout the United States, and like uniform laws of bankruptcy; the power to issue patents and copyrights and the power to regulate trade with foreign nations, and among the several states. New restraints upon the states prohibited them from emitting bills of credit, or making anything but gold or silver legal tender in the payment of debts; prohibiting them from passing any bill of attainder or ex post facto law, or law impairing the obligation of contracts; or from laying any imposts or duties upon imports or granting any title of nobility. Under the constitution the states control their militia and Congress can only organize them,

arm them and call them out for service. Under the articles of confederation Congress had the power to appoint all the officers of the state militia; while under the constitution Congress cannot appoint these officers, but their appointments rest with the states whether the militia be in service or not. Outside of these provisions the constitution is a replica of the Articles of Confederation in respect to the powers created in either. The federal judiciary was a new feature, but the constitution invested it with powers which Congress exercised under the articles of confederation.

But by the articles of confederation it was provided that "every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled" is retained by each state. The constitution did not contain such a provision. On the contrary after granting all the old powers except as noted Congress was empowered to make all laws "which shall be necessary and proper for carrying into execution the foregoing powers." This became known as the "sweeping clause" in the discussions upon the constitution when it went to the states for ratification.

The history of the "sweeping clause" is as follows: On the second working day of the convention, May 29, 1787, Charles Pinckney, delegate from South Carolina offered a draft of a constitution which almost in substance and largely in language was the instrument finally approved by the convention. William Patterson of New Jersey also offered a draft which was considered and debated upon. A committee ap

pointed from the body was instructed to consider the Pinckney and Patterson plans, which consisted of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut and James Wilson of Pennsylvania. Of the five three were accomplished lawyers.

Pinckney's plan, after providing for power in Congress to declare war, provide for the common defense, and to do other things much as the grant stood in the constitution as adopted, invested Congress with power as follows:

"And make all laws for carrying the foregoing powers into execution."

The committee in question reported on August 6, 1787, after giving both plans thorough consideration and submitting each clause to rigid scrutiny. In the draft that they reported back to the convention they amended the clause just quoted so as to read:

"To make all laws that shall be necessary and proper for carrying into execution the foregoing powers," etc.

The committee had inserted the words "necessary and proper" and had improved the rhetoric of the Pinckney clause. In this form it went before the people for adoption.

In the Virginia state convention which ratified the constitution Edmund Randolph, who was a member of the committee which inserted the words "necessary and proper" hastened to assure the people that the clause was harmless. It was, he said, a safeguard against monopolies. "This fundamental clause," said he, "does not in the least increase the powers of Con

gress. It is only inserted for greater caution. No sophistry will be permitted to explain away these powers, nor can they possibly assume any other power, but what is contained in the constitution without usurpation."

In the same convention Patrick Henry declared that "when men give power they know not what they give." And of those who argued that the exercise of power which he feared would never be resorted to, he asked "why give power so totally unnecessary that it is said it will never be used?"

Edmund Pendleton on June 14, 1788, also made a speech on the "sweeping clause." "I understand that clause as not going a single step beyond the delegated powers. What can it act upon? Some power given by the constitution. If they should be about to pass a law in consequence of this clause they must pursue some of the delegated powers, but can by no means depart from them, or arrogate any new powers for the plain language of the clause is to give them power to pass laws in order to give effect to the delegated powers."

George Mason wanted an amendment so as to make the point clear; but amendments to this clause which to many minds was already perspicuous beyond doubt seemed caution run mad; and as the whole convention was agreed upon an amendment declaring that powers not delegated were reserved the question seemed to be covered completely. Notwithstanding this George Nicholas wished an amendment to be introduced in order to remove all apprehensions. John Marshall who was present, and who by an almost dramatic irony