CHAPTER VI

FINISHING THE WORK

AFTER having decided upon the constitution of the national legislature, it was comparatively easy to determine what powers should be granted to Congress. This matter involved a good deal of discussion, but no angry debate such as had occurred in the adjustment of the compromises. After being assured of an equal vote in the Senate, the small States were no longer fearful of the despotism of Congress and very readily assented to the granting of important and extensive powers to that body. The details, too, in regard to qualifications and terms of office for members of the two houses were adjusted without serious difficulty. It was agreed that the House of Representatives should be composed of men chosen every second year by the people of the several States. It was also agreed that the electors for members of the House in each State should "have the qualifications requisite for electors of the most numerous branch of the State Legislature." This clause was made purposely evasive. The qualifications of electors differed so widely in the different States that the Convention despaired of finding any common ground of agreement and so evaded the entire question in a very ingenious and satisfactory way. The number of Representatives was to be proportional to the population of the various States, and after the first census had been taken each State was to have one Representative for every thirty thousand inhabitants.

The ratio was one for every forty thousand inhabitants until the last day of the Convention. At that time, upon motion of Mr. Gorham, of Massachusetts, the change was made in the ratio "for the purpose of lessening objections to the Constitution." Washington also made a short speech in favor of the change-the only speech which he made during the debates of the Convention-and Mr. Gorham's idea was adopted. It is sometimes said that the change in the ratio was made at the suggestion of Washington. This is hardly probable, as the motion for the change had been made by Gorham and supported by King and Carroll before the presiding officer spoke at all. Each State was assured one Representative, regardless of population; and in the absence of an exact enumeration of the people, a representation varying from one for Rhode Island and Delaware to ten for Virginia was agreed upon. It was also provided that the "executive authority" in each State should issue writs of election to fill any vacancies that might occur. The Speaker, a familiar official both in England and America, then as now, was to be chosen by the House itself.

As a part of the Connecticut Compromise, the States were accorded an equal voice in the Senate. It was agreed that there should be two Senators from each State, chosen by the legislature thereof to serve for a term of six years. The long term of office was intended to give permanence and stability and a degree of independence to the body, and has so operated. The Senators were also to be divided, as nearly as might be, into three equal classes, one-third of them going out of office every two years. This wise provision has served to keep a majority of experienced men in the Senate at all times. In case of vacancies, the State executives were authorized to "make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies." The intent of this provision seems perfectly plain, yet it has been the subject of much discussion. In several cases when a deadlock has occurred and the legislature has failed to elect, the governor

of a State has made an appointment under the authority of this clause. The Senate has invariably held, however, that the governor was not competent to appoint in such a case. In the last instance of such a controversy, however, the case of Senator Quay, the Senate held to this view by the very narrow margin of thirty-two to thirty. In the cases of new and less influential men the vote has been more decisive. In conformity with English precedent, the upper house was granted "the sole power to try all impeachments."

An interesting and important change was made in the manner of paying the Senators and Representatives. The delegates to the Congress of the Confederation were paid by their respective States, but the plan had not worked well. It took away any national spirit which the delegates might have, and made them too dependent upon the States. The new Constitution consequently provided that the Senators and Representatives should be "paid out of the treasury of the United States." The members of the two houses were also, except in a few specified cases, privileged from arrest during their attendance upon the sessions of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they were not to "be questioned in any other place." Each house was also constituted "the judge of the elections, returns, and qualifications of its own members." For the insertion of these three great "privileges" there were numerous precedents.

Congress was specifically granted the power to levy and collect duties and taxes, to borrow money, to regulate commerce, "to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies," to coin money and fix a standard of weights and measures, to punish counterfeiting, "to establish post-offices and post-roads," to grant patents and copyrights, "to constitute tribunals. inferior to the Supreme Court," to define and punish offences against international law, to declare war, to provide for and

control an army and navy, and to exercise exclusive jurisdiction over an area of territory, not to exceed ten miles square, to be selected as the seat of the national government. Aside from the debate on the regulation of commerce, there was no serious difference of opinion in regard to these matters until it was proposed to give Congress the power "to subdue a rebellion in any State." This proposition called forth an animated discussion. Here the dignity of the State was involved and the dreaded spectre of States Rights suddenly reappeared. Mr. Pinckney and Gouverneur Morris were in favor of allowing Congress to put down an insurrection without waiting for the request of the State legislature. Luther Martin, as might be expected, opposed this as "a dangerous and unnecessary power." He held that "the consent of the State ought to precede the introduction of any extraneous force whatever." Mr. Gerry agreed with him. He was opposed to "letting loose the myrmidons of the United States on a State, without its consent. More blood would have been spilt in Massachusetts, in the late insurrection, if the general authority had intermeddled." It was finally agreed that the United States should not interfere in case of insurrection unless asked to do so by the legislature of the State or by the executive, in case the legislature be not in session at the time. This provision seemed to serve all practical purposes of law and order and to maintain the dignity of the State at the same time. Difficulties have arisen under this clause which the Convention did not foresee and could not be expected to anticipate.

The powers which were denied to Congress and to the States were hardly less important than those which were conferred. It was deemed wise by the Convention to tie the hands of Congress in respect to certain things. In the first place, as we have already noticed, Congress was not allowed to prohibit the importation of slaves prior to 1808; and to clinch the matter, it was also provided that this particular clause of the Constitution could not be amended. This provision was inserted at the suggestion of Mr. Rutledge,