tions of Massachusetts, Maryland, New Hampshire, and Pennsylvania; and the framers rejected the system of appointment of Judges by the Legislature then prevailing in Connecticut, Delaware, Georgia, New Jersey, North Carolina, South Carolina, and Virginia. It wisely rejected the system prevailing in New York and Connecticut, where the Legislative body acted on appeal as the Judiciary.1

Eighth, the jurisdiction given to the Judiciary over national matters. In one particular of this jurisdiction, the framers of the Constitution embodied a principle, new and untried in history. In the Supreme Court, they vested the power to summon sovereign States before it as parties litigant, to try controversies between sovereign States, to determine their respective rights, to enter judgment against such States, and to enforce such judgment against them. Never before had there existed a permanent judicial tribunal with such powers.2 The remaining portions of jurisdiction granted to the Federal Judiciary were simply an extension of similar jurisdiction possessed by Courts under the Articles of Confederation as to such national matters as admiralty cases. Many of the subjects over which jurisdiction was granted by the Constitution had been

1 See Debates, July 18, 21, 1789; and see Hamilton in The Federalist, No. 81, July 4, 8, 1789: Applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the Legislature, but to distinct and independent bodies of men. The plan of the Convention

in this respect . . . is but a copy of the Constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to these models is highly to be commended."

2 See The Supreme Court and Sovereign States (1924), by Charles Warren, Chapter I; Sovereign States before Arbitral Tribunals and Courts of Justice (1925), by James Brown Scott.

suggested in pamphlets and letters, for four years prior to the Convention.1

Ninth. The provisions regulating the methods of action by Houses of Congress, and the modes of election, were largely mere mechanism of government; they were not matters of fundamental principle; and most of this mechanism was also taken directly from the State Constitutions.

Any one who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be

1 See Debates, July 18, 1789. Pelatiah Webster, Feb. 16, 1783, had proposed a Federal Judiciary. Rufus King wrote to Jonathan Jackson, Sept. 3, 1786 (Mass. Hist. Soc. Proc., 1915, XLIX), that: "Mr. Madison ... does not discover or propose any other plan than that of investing Congress with full powers for the regulation of commerce, foreign and domestic. But this power will run deep into the authorities of the individual States, and can never be well exercised, without a Federal Judicial. The reform must necessarily be extensive."

Charles Pinckney's plan submitted to the Federal Convention, but probably devised as early as his report to Congress of August 7, 1786, provided for "a Federal Judicial Court to which an appeal shall be allowed from the Judicial Courts of the several States in all cases wherein questions shall arise on the construction of the law of Nations, or on the regulations of the United States concerning trade or revenue, or wherein the United States shall be a party” Congress also to have the exclusive right of instituting in each State a Court of Admiralty. George Mason wrote to Arthur Lee: "The most prevalent idea, I think, at present, is . . . to establish a National Executive, and a Judiciary system with a cognizance of all such matters as depends upon the law of nations and such other objects as the local Courts of Justice may be inadequate to."

Madison wrote to Randolph, April 8, 1787: "It seems at least essential that an appeal should lie to some national tribunal in all cases which concern foreigners or inhabitants of other States. The admiralty jurisdiction may be fully submitted to the National Government"; and to Washington, April 16, 1787: "It seems at least necessary that . . . an appeal should lie to some National tribunals in all cases to which foreigners or inhabitants of other States may be parties. The admiralty jurisdiction seems to fall entirely within the purview of the National Government."

...

Jefferson wrote to Madison, June 20, 1787: "The negative proposed them [Congress] on all the acts of the several Legislatures is now for the first time suggested to my mind. Prima facie, I do not like it. appeal from the State Judicatures to a federal Court remedy?"

...

Would not an be as effectual a

startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents. For instance, the Preamble of the Massachusetts Constitution began:

do...

We... the people of Massachusetts ordain and establish the following . . . as the Constitution of the Commonwealth of Massachusetts.

Compare this with the Federal preamble:

We, the people of the United States . . . . . do ordain and establish this Constitution for the United States of America.

Take the Massachusetts provision as to impeach

ment:

Judgment shall not extend further than to removal from office and disqualification to hold or enjoy any place. of honor, trust, or profit under this Commonwealth; but the party so convicted shall be, nevertheless, liable to indictment, trial, judgment and punishment, according to the laws of the land.

The Federal Constitution follows it word for word: Judgment 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

1 See The Evolution of the Constitution (1910), by Sydney George Fisher; The Constitutional History of the United States (1901), by Frederic N. Thorpe, I, 475 et seq.; Law of the Federal and State Constitutions of the United States (1908), by Frederic J. Stimson; The Original and Derived Features of the Constitution, by James Harvey Robinson, Annals of the American Academy of Political and Social Science (1890), I; Comparative Study of the State Constitutions of the American Revolution, by William C. Webster, ibid. (1897). John P. Van Ness said in the House of Representatives, Jan. 17, 1803 (7th Cong., 2d Sess., p. 395): "The Constitution was only a digest of the most approved principles of the Constitutions of the several States, in which the spirit of those Constitutions was combined."

subject to indictment, trial, judgment and punishment according to law.

Massachusetts says:

The Senate shall be the final judge of the elections, returns and qualifications of its own members . . determine its own rules of proceedings.

The Federal Constitution says:

Each House shall be the judge of the elections, returns and qualifications of its own members . . . determine the rules of its proceedings.

Massachusetts (as well as seven other States)

says:1

All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

The Federal Constitution says:

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.

The provisions of the Federal Constitution as to the President's veto, the choice of Speaker by the House, the Senate as the body to try all impeachments, the President as Commander in Chief of the army and navy, appointment of officers by the President "by and with the advice and consent of the Senate" are all taken almost verbatim from the Massachusetts document.

1 See especially debates in the Federal Convention, July 6, Aug. 13, 15, Sept. 5, 8, 1787; see also historical sketch by Henry St. George Tucker in 68th Cong., 2d Sess., Feb. 3, 1925.

The New York Constitution said:

It shall be the duty of the Governor to inform the Legislature at every session, of the condition of the State ..; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare and prosperity. . . to take care that the laws are faithfully executed.

The Federal Constitution said:

He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient. . . . He shall take care that the laws be faithfully executed.

The provision as to the duties of the President and as to the Vice-President as the president of the Senate, the provision authorizing the President "to convene both Houses or either of them" "on extraordinary occasions"; the provision as to adjournment of the branches of the Legislature, all came from the New York Constitution.

Clause three of Article Six of the Federal Constitution providing that: "No religious test shall ever be required as a qualification to any office or public trust under the United States," came word for word from the Maryland State Constitution of 1776; and the provision for a long term for Senators, as a means of increasing the stability of that body, was suggested by the Maryland Constitution.

As has already been stated, the provision that the Constitution should be unamendable except by reference to the peoples of the States was suggested by similar provisions in the State Constitutions,