THE GROWTH OF THE CONSTITUTION IN THE FEDERAL CONVENTION OF 1787 AN EFFORT TO TRACE THE ORIGIN AND DEVELOPMENT OF EACH SEPARATE CLAUSE FROM ITS FIRST SUGGESTION IN THAT BODY TO THE FORM FINALLY APPROVED BY WILLIAM M. MEIGS, OF THE PHILADELPHIA BAR. Article I., Section 9, Clause 6. Article I., Section 10, Clause 2. Article II., Section 1, Clauses 7 and 8 PAGE 170 171 171 173 175 175 181 182 184 184 184 186 188 .188, 190 193 195 196 200 206 208 209 210, 212 214 216 219 220 222 " INTRODUCTORY. I HAVE on more than one occasion wanted to know accurately the history and development of some particular clause of the United States Constitution in the Convention of 1787, but have always found it very difficult to succeed in tracing the matter out to my satisfaction. Even with the aid of the index and cross-references contained in Volume V. of Elliot's Debates," it is a very wearying process to follow a particular portion of the instrument through the whole Convention; and, indeed, no matter how carefully this is done, one is sure to miss a good many ideas which were thrown out at times when entirely different portions of the instrument were under consideration. In an instance some two years ago, when I thought a recent writer was in error, I again wanted to know the exact origin of a particular clause, and again had all the usual difficulty and the unsatisfactory result. Thinking over the matter at that time led me to wonder whether it would not be possible and worth while to go through all the proceedings of the Convention and write a history of each separate clause. The following book is an outgrowth of that idea. Taking the matter up from the beginning, I went through the debates with the view of referring each separate discussion to its appropriate portion of the final instrument: in this many difficulties came up, and they seemed at times to be almost insuperable, but gradually they disappeared, and I feel that the work is now accurate. It was very clearly the best plan to follow as closely as possible the process in the minds of members of the Convention, by which the various clauses were formed, and in my task I accordingly first referred all the early discussions to the separate resolutions of the Virginia plan. But on August 6 a formed draft of a constitution was presented from the Committee of Detail, and the debates were then all directed to the clauses of this instrument. It became necessary accordingly for me not only to refer the various discussions which followed to this new guide, but to break up the previous matter and refer it to the same. And once more the whole previous matter had to be much broken up, when the Committee on Style presented the instrument in almost its final form on September 12. In all this process there was, of course, much danger of errors and omissions, and, accordingly, after the whole matter was in rough shape, with each discussion and each unformed idea referred to that section and clause of the final constitu tion, on which it had influence, I again went through the debates from beginning to end, to satisfy myself that the discussions were referred to the clause of the Constitution to which they naturally belong. One matter of difficulty at times has been to decide how much to subdivide the clauses in considering them, but I have been guided by their historical development in the Convention. Where several clauses were integral parts of one compromise, or where they all grew up largely at one time, I have generally considered them together; otherwise, separately. I have carefully confined my work to the origin and growth of the clauses within the Convention, and have not touched upon any question as to their earlier source. Any one who desires to take this question up can do so with the aid of Mr. Fisher's "Evolution of the Constitution." It has been a good deal discussed among different writers whether Gladstone's famous saying of the United States Constitution is true or untrue. In my opinion, the answer is only to be found by first ascertaining just what he meant. If he can be interpreted as intending to say that it was new in the sense that the telephone is new within a few years, then nothing more false and even absurd has often been uttered. But I do not at all suppose for my part that that is what Gladstone did mean; on the contrary, he intended merely to say that it was the most wonderful instance in which pre-existing materials had been suddenly molded into a harmonious whole by one set of men appointed for that specific purpose, in contradistinction to the frame of the British government, which has grown through ages and by the largely unconscious working of generations of men, whose aim was by no means to draw up a whole constitution, but at most to patch up some special part which seemed to them defective. Gladstone was too much versed in governmental science not to know that the elements of the American Constitution to use the words+ of Mommsen, which are used by him in regard to the earliest Roman constitution, but are of universal application-were "neither manufactured nor borrowed, but grew up amidst and along with the [American] people." I cannot but hope that my work may be of some service to those interested in the study of the Constitution by putting before them "As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." + History of Rome, i. 104. 10 F. S. A.-4 the whole origin and growth of each clause from beginning to end in the Convention. For myself, I see now far more clearly than ever before the purpose the members aimed at in some of the clauses; and the development of Article VI., Clause 2, as to the Constitution and laws being the supreme law of the land, seems to me a demonstration that many of the members of the Convention distinctly and definitely aimed by that clause (with the aid of Article III., Section 2, as to the judicial power of the federal government) to establish that system of the courts' holding laws void because of violating the Constitution or the federal laws with which we are now all so familiar. I had formerly supposed that this plan was, at most, only in the minds of a few members, and that even their minds were hardly more than groping in the dark upon it, but this was an error. The late Mr. Coxe, the wellknown author of "Judicial Power and Unconstitutional Legislation," would have been much interested in the history of this particular clause. I have not felt it necessary to make mention of minor discrepancies between the Journal and the Debates of the Convention; nor have I usually cumbered the pages with references to the pages of Elliot's work where the debates under consideration can be found, but have given instead the dates, so that any one can with but little trouble turn to the desired place.. WILLIAM M. MEIGS. PHILADELPHIA, ' GENERAL SKETCH. May 25.- Convention organized. 29.- Virginia resolutions and Charles Pinckney's draft introduced; both referred to a committee of the whole. June 13 The committee of the whole report a series of nineteen resolutions 66 15. '66 upon the nature of the intended government. New Jersey plan presented, and it and the resolutions already reported referred to a committee of the whole. 19. The committee report back the resolutions already agreed to as July 24.-Committee of Detail appointed, consisting of Rutledge, Randolph, 66. 26. The twenty-three resolutions agreed upon by the Convention referred to the Committee of Detail. August 6.- The Committee of Detail report a draft of the Constitution. 7.- Discussion of this draft begun. 66 81. Committee on such parts of the Constitution as had been postponed |