Seventy-four delegates were appointed to the Convention;[1]
nineteen for one reason or another did not attend; thirty-nine signed the
document which resulted from nearly four months of discussion. Rhode Island did
not deign to participate, and the delegates from New Hampshire did not come
until July 23, after the Convention had decided some of its most difficult
problems. The early and, indeed, the conspicuously troublesome questions were
therefore passed upon by delegations from eleven states. Many of the members
had had political experience. Even at that time, when men were not affected as
we are likely to be by tradition, there was a general acknowledgment of the
ability and rectitude of the delegates. America, in a crisis, had chosen her
best.
One fact is very evident in the Convention's work — results were
reached by debate, by interchange of opinion, by deliberate but earnest
consideration of problems. There was little or no declamation for its own sake.
Conclusions were the product of discussion; and the reader of the debates can
to-day see the gradual unfolding of principles and institutional forms as the
weeks went by. This means, of course, that no faction worked its will and no
leader dominated the rest. Not one delegate envisaged in advance the whole
system and all the fundamental principles on which it rested. For once at least
in the course of history, opinions were formed and changed as the result of
argument.
The most conspicuous, and perhaps the most influential, member of the
Convention was Washington. He had hesitated to accept the appointment, but had
finally done so; his presence gave prestige to the Convention and calmed
apprehensions of people who feared a plot or some ruthless attack upon their
liberties. He was no great student of political theory or of history, but he
had grasped the essentials of the problem of national organization as few
others had done. "... my wish is," he wrote Madison, before the Convention met,
"that the convention may adopt no temporizing expedients, but probe the defects
of the constitution to the bottom, and provide a radical cure, whether they are
agreed to or not." America, then in the process of construction, was his
country. Though he spoke but once on the floor, of his position on certain
essential and critical questions there is no doubt. He allied himself with the
national party and appears to have supported Madison's views in
particular.[2]
The leader on the floor and in some ways the most effective man in the
Convention was Madison. For a considerable time his mind had been absorbed with
the problem of national reorganization; he came prepared for his work. Without
eloquence, as the word is commonly used, he could speak with cogency and skill.
No one saw more clearly into the complexities of the problem or the general
nature of the solutions that must be reached. He had examined the ancient
leagues and pondered the lessons of their history. He had analyzed the defects
of the Confederation and found no sanction, no compelling power. "A sanction",
he said, "is essential to the idea of law, as coercion is to that of
Government." He believed in the need of framing a new constitution, not merely
amending the Articles, and in a letter to Washington, written a month before
the Convention met, he used these especially significant words: "Conceiving
that an individual independence of the States is utterly irreconcileable with
their aggregate sovereignty, and that a consolidation of the whole into one
simple republic would be as inexpedient as it is unattainable, I have sought
for middle ground, which may at once support a due supremacy of the national
authority, and not exclude the local authorities wherever they can be
subordinately useful." In a letter to Jefferson, then in Europe, he spoke of
the expediency of laying "the foundation of the new system in such a
ratification by the people themselves of the several States as will render it
clearly paramount to their Legislative authorities." [3] In letters
to others [4] he outlined with a remarkable approach to accuracy the
main features of the Constitution as it finally came from the hands of the
framers.
In the Pennsylvania delegation were two men who labored ably for union
and competent government. James Wilson, a Scotchman by birth who had studied in
the universities of his native country, had a remarkably clear, critical mind;
he was strongly national in his sympathies and stands beside Madison as one of
the two strongest thinkers in the Convention. On more than one occasion he
marked out with special clarity the nature of the Convention's task and the
general principles on which the new system should rest. Gouverneur Morris,
eloquent, active-minded, at times caustic and aggressive, played a prominent
role. He, too, toiled valiantly for an effective national government. Madison
in later years spoke of the "brilliancy of his genius" and of his readiness to
surrender hastily-formed opinions. To him Madison also ascribed the
"finish given to the style and arrangement of the Constitution" in its
final form; but there is evidence of Wilson's participation in this task of
final revision, and perhaps his share was even greater than that of
Morris.[5]
The New York delegation was composed of three men; two of them, Yates
and Lansing, were anxious to guard the states against encroachment. They were
associated in their beliefs and fears with Governor Clinton of New York and the
group who were charged, not unjustly, with setting up an "idol of State
Sovereignty".[6] A third member was Alexander Hamilton, an able
advocate of efficient government and a coherent union. Seven years before the
Convention met he had spoken of the necessity of "a solid coercive
union",[7] and somewhat later he said, "there is something ...
diminutive and contemptible in the prospect of a number of petty States, with
the appearance only of union, jarring, jealous, and perverse, without any
determined direction, fluctuating and unhappy at home, weak and insignificant
by their dissensions in the eyes of other nations." [8] His views in
certain respects were so extreme — some of them perhaps put forth in the
Convention chiefly to arouse discussion — that they had little if any
effect. A proof of his amazing genius is seen in his defense of the
Constitution when it was finished and presented to the states for ratification,
and especially in the articles of supreme power and intelligence which he
contributed to The Federalist; but his work in the Convention itself was
not significant.[9] His colleagues in the New York delegation
disagreed with him; with the apparent exception of one day he was absent for
six weeks (June 29 to August 13); when he returned, his colleagues had left the
Convention (July 10), and the vote of the state was not cast.
Connecticut sent three able men, Roger Sherman, Oliver Ellsworth, and
William S. Johnson. In the earlier days they took a stand against the radical
or advanced plans and purposes of the nationalist leaders, but they were not
narrow-minded men hemmed in by local patriotism or petty state jealousy.
William Paterson was the most important delegate from New Jersey. When the
great principle of nationalism was under discussion and the leaders of the
Convention seemed to be on the verge of carrying out their will without
effective opposition, he became the prominent protagonist for the cause of the
smaller states and the advocate of the principles of the Confederation. The
Maryland delegation was so made up that on certain critical questions the votes
of its members were equally divided; Luther Martin, a lawyer of marked ability,
an active defender of the states, labored valiantly against what proved to be
the Convention's will. From Delaware came John Dickinson, the "Penman of the
American Revolution". Of the South Carolina delegates John Rutledge and Charles
Pinckney were the more effective men. The latter, then only twenty-nine years
of age, had had valuable experience in Congress and had taken particular
interest in the establishment of a competent government.[10]
The Convention was summoned to meet on the second Monday of May, which
fell on the fourteenth. Only a few of the delegates arrived promptly. While
waiting for the arrival of other delegates and the organization of the
Convention, the members from Virginia set to work on a plan for new articles of
union. Virginia felt especially responsible for the meeting and her
representatives thought it best to have definite proposals for
presentation.[11] Whatever others might think, they were not content
with mere amendments for patching up the Confederation. To James Madison, it is
fair to assume, we owe a good part of the first plan that was drawn up for the
Convention's deliberations.
Eleven days after the time appointed for meeting, seven states were
represented and the Convention was organized (May 25), electing George
Washington as the presiding officer. Soon after formal organization, rules of
procedure were adopted providing, among other things, that nothing spoken in
the house should be printed or otherwise published or communicated without
leave, and that no copy be taken of any entry on the journal during the sitting
of the house without its leave. This injunction of secrecy was obeyed with a
remarkable fidelity. Rumors concerning the Convention's labors circulated
occasionally beyond the statehouse walls, but the actual work of the assembly
went forward undisturbed by popular clamor and apparently uninfluenced by the
curiosity of the public. The reason for this secrecy is obvious; it enabled the
members to speak plainly, if they would; it prevented tentative or
vaguely-formed proposals from going forth to the press; it precluded the
likelihood of prejudice or opposition based on incomplete evidence, and it
allowed the Convention to present its conclusions. Though leaders proposed at
the beginning to correct and enlarge the Articles of Confederation, the plan
they entered upon was so different from that of the Articles that they might
well have feared an outcry of protest from the public had their purpose been
fully exposed to view.
The journal of the Convention, kept by the Secretary, William Jackson,
was meager; in some respects he was an untidy workman. If we had nothing else
but this official journal on which to rely, we should to-day be almost as
uncertain as were the people of that earlier day concerning the nature of the
discussions, and we should have only a dim idea of what went on behind the
closed doors and under the seal of secrecy. Fortunately the indefatigable
Madison was at hand. Day by day with great patience and with consummate skill
he wrote down not only motions and votes, but also the arguments of the various
speakers. All of it was done with clarity and precision and — what is more
remarkable — with candor and freedom from petty jealousy.
In addition to Madison's Notes we have other sources of
information, but they are relatively unimportant. Yates of New York made fairly
full notes, but he was not present after July 10. His minutes were published in
1821. Luther Martin, reporting to the Maryland legislature, gave in his
Genuine Information an account of what took place and presented his
interpretation of the proceedings of the Convention and the purposes of its
leaders; this statement was printed, soon afterwards. In later years Madison
criticized the statements of both Yates and Martin. Yates, he said, was
inaccurate and in some cases did injustice to the arguments and opinions of
particular members; and still, when later revising his own manuscripts, he
added a few of Yates's statements. Martin's report betrayed "feelings which had
a discolouring effect on his statements." The criticisms seem to be essentially
just; there is value in the work of both of these men, but no one probably
would suspect Martin, an able, determined, and rather truculent advocate, of
possessing a high degree of objectivity, the quality which gives Madison's
Notes peculiar worth. Within recent years, a few notes and other papers,
some of them apparently rather hastily written or prepared as memoranda for
debate, have been made available — notes by King of Massachusetts, McHenry
of Maryland, Pierce of Georgia, Paterson of New Jersey, Hamilton of New York,
and Mason of Virginia —; not one of them adequately covers any
considerable portion of the Convention's proceedings; they do, however, throw
light on episodes in the Convention's work. To this list should be added
certain papers showing the work of the important committee of detail. There are
a few other stray papers of no great significance.
Thirty years after the Convention met, John Quincy Adams, then Secretary
of State, was assigned the task of preparing for publication the formal
official journal — and a task it proved to be. The volume was printed in
1819. Though inaccurate in some respects (most of the inaccuracies being of
slight importance), and though extremely brief, it remained for years the only
continuous and authoritative statement of the Convention's proceedings. After
Madison's death, which occurred in 1836, his papers were purchased by the
government and the Notes were printed four years later. We find,
therefore, this very important fact: during fifty years of our history,
politicians, statesmen, and judges relied (if they relied on any source at all)
on entirely insufficient, partial, and in some respects prejudiced accounts of
the proceedings and debates. The great decisions of John Marshall, the speeches
of Hayne and Webster, the theories and pronouncements of Calhoun, were all made
with nothing like the information that might have been gained had Madison's
Notes been published. Story's Commentaries appeared in their
first edition three years before Madison's death. Important as these facts are,
it may be even more interesting to notice how little intelligent use was made
of the invaluable information furnished by the Notes after they had
appeared in print.[12]
If the Convention's job had been confined to the formation of a
thoroughly competent government, theoretically sound and capable; had its
problem been only that of establishing a completely centralized system, the
difficulties would have been sufficient to tax the intelligence of statesmen.
But in this instance the problem to be solved was more subtle and more complex.
The members found themselves engaged in the task of constructing a new kind of
body politic, neither a centralized system on the one hand nor a league or
confederation on the other. Certain minor problems, as we shall see, were
perplexing and to them was given much discussion — for example, the method
of choosing the executive — , but the really difficult job was to form a
strong and infrangible union without destroying the states as integral, and, in
many respects, autonomous parts of an integral system. The solution of this
problem was the signal contribution of the Convention to the political life of
the modern world. To aid them, the members had the practices of the old empire,
as we have already seen; they had in addition their own experiences in the
Revolution and under the Articles of Confederation; their most immediate source
of knowledge was the failure of the Confederation to function; to this failure
the delegates in the Convention frequently referred; it furnished the most
convincing lesson.
In one matter — the distribution of powers between the states on
the one side and the central government on the other — the old empire and
the Articles furnished them with lessons of organization. But the principle of
union and the method of its maintenance had to be worked out, hammered out, in
the processes of debate. Our first and most important work, therefore, is to
point out in the course of the succeeding pages how that particular task was
done. The great achievement was to solve the problem of imperial order, the
problem which Parliament had found itself incapable of solving and which now
remained for the Americans themselves, a problem calling for supremely
intelligent statesmanship and no longer to be avoided.
The "main business" of the Convention was opened by Randolph, who made
an effective speech and presented a plan of union which had been sketched by
the Virginia delegates.[13] He pictured the existing situation and
especially showed the defects of the Confederation and the necessity of change
in certain essential respects. The fourth and fifth defects, as Madison noted
them, are peculiarly important — "the foederal government could not defend
itself against the incroachments from the states", and "it [presumably the
Articles] was not even paramount to the state constitutions, ratified as it was
in may [sic] of the states." It is difficult to find any interpretation
of this brief statement except one signifying the belief of the Virginia
delegation that the new scheme of union was to be based on a constitution,
which, as far as it went, was to be superior to the state constitutions.
Though skillfully prepared, the Randolph or Virginia plan, which was
soon taken as the basis of the Convention's work, was in some respects only a
fairly elaborate outline. It declared the need of correcting and enlarging the
Articles of Confederation, and then at once announced "that the rights of
suffrage in the National Legislature ought to be proportioned to the Quotas of
contribution, or to the number of free inhabitants...." It provided for a
bicameral legislature, the members of the first branch to be elected by the
people, the members of the second to be chosen by those of the first, out of a
number of persons "nominated by the individual Legislatures...." The assignment
of powers to the national legislature was stated in general but fairly
comprehensive, though indefinite, terms. Its general principle was clear: "the
National Legislature ought to be impowered to enjoy the Legislative Rights
vested in Congress by the Confederation and moreover to legislate in all cases
to which the separate States are incompetent, or in which the harmony of the
United States may be interrupted by the exercise of individual Legislation...."
The plan provided for a national executive and a national judiciary; the
executive and a convenient number of the judiciary were to form a "council of
revision", empowered to examine every act of the national legislature before it
should "operate, and every act of a particular Legislature before a Negative
thereon shall be final;" the dissent of this council was to "amount to a
rejection," unless the legislature passed the act a second time or the act of a
state legislature was "again negatived by [] of the members of each
branch."
Other portions of the plan need not be recited; but it is important to
notice that the "amendments" made to the Confederation by the Convention were,
after approbation of the Congress of the Confederation, to be passed upon by an
assembly or assemblies of representatives, "recommended by the several
Legislatures to be expressly chosen by the people...." In other words, the work
of the Convention was to be presented as offering amendments to the existing
system; but it was to stand on the will of the people and not on the authority
of the state governments. This plan evidently proposed the establishment of
something more than a union of sovereign states acting through a body of
delegates to an international conference. The provision for proportional
representation from the states was of signal importance. The idea was not new;
it was to be found in the Albany Plan; it had been discussed in the Continental
Congress; and now because of the fears and forebodings of the small states, it
was certain to become a center of controversy. Viewed as a whole, the Randolph
plan makes plain the intention of the Virginia delegates not to be content with
mere "temporizing expedients".
The proposal to establish a national government with power to do all
things which the states were incompetent to do may be considered in itself an
answer to what I have called the "chief problem", as conditions appeared to the
thoughtful men of the day anxious for union and peace. If such a government
could be founded on the popular will, the customary readiness of the states to
disregard their obligations might be obviated. But in addition to the distinct
establishment of a national system, the Virginia plan contained three
explicit answers to the problem: (1) the national legislature was empowered
"to negative all laws passed by the several States, contravening", in its
opinion, "the articles of Union...." (2) It was empowered "to call forth the
force of the Union against any member of the Union failing to fulfill its duty
under the articles thereof." (3) The "Legislative Executive and Judiciary
powers within the several States ought to be bound by oath to support the
articles of Union".
Of these three explicit proposals for means of assuring the obedience of
the states to their obligations, only one, the third, found its way into the
finished Constitution; there it stands to-day, as it has for a century and
more, as a sign of moral and legal obligation to maintain the federal system.
The fate of the other two provisions will be presented in subsequent pages. The
three together furnish conclusive evidence of the fear of dissolution of the
union, and fear that the union would be but a shadow as the old one had proved
to be, because the states had refused or neglected to perform their duties.
When Randolph had finished, with an exhortation not to suffer the
opportunity of establishing peace and harmony to go by unimproved, his plan was
referred to a committee of the whole. A "draught of a federal Government",
prepared by Charles Pinckney, was also presented and was likewise referred.
Just what this latter plan contained we do not know. What has been frequently
printed as the Pinckney plan is certainly not what the ardent young statesman
of South Carolina actually laid before the Convention.[14] When John
Quincy Adams was editing the Secretary's notes thirty years after the
Convention adjourned, he wrote to Pinckney and received from him a document
which Adams placed in the edited journal as the Pinckney plan. It is quite
inconceivable that Pinckney, or anyone else, could have presented to the
Convention at the beginning a series of proposals so closely resembling the
finished Constitution as does the pseudo-plan which Adams inserted in the
journal. The paper on which the "plan", as Adams received it, was written, bore
the watermark of the year 1797, and therefore no great amount of historical
criticism is needed to decide the document to be not the original but at the
best a copy. Pinckney himself, a year after the adjournment of the Convention,
wrote to a correspondent that he had no copy of his plan in his possession.
From available authentic materials we can reach reasonably certain conclusions
concerning the character of the original plan; it proposed not mere amendments
to the Confederation, but the establishment of a real government and one, at
least in some particulars, endowed with powers and authority.
The committee of the whole went in session the next day (May 30) and
immediately took up the Virginia plan as the basis of deliberation. At the
beginning of those deliberations a significant step was taken. There were some
members who thought it wise to commit the Convention at the outset to
fundamental principles.[15] The first resolution of the Virginia
plan, indicating the purpose of the Convention, declared the need of correcting
and enlarging the Articles of Confederation. Randolph, on the suggestion of
Gouverneur Morris, moved the postponement of this resolution in order that
three new resolutions might be considered which would announce in general but
explicit terms the intention of the Convention. Postponement was agreed to. The
first two of these resolutions were strangely similar; each in substance
repeated the other: no union of states "merely federal", no treaty or treaties
among the states as individual sovereignties would be sufficient to accomplish
the objects "proposed by the articles of Condeferation [sic], namely
common defence, security of liberty, and general welfare." These two
resolutions were passed over without much discussion; but the third, which
indeed stated affirmatively the principle of the earlier two, was taken up for
more careful consideration. Though possibly its full import can be seen only
when examined by the side of the other two, the meaning of the third resolution
is perfectly plain: "that a national Government ought to be established
consisting of a supreme Legislative, Executive and Judiciary."
[16]
Discussion of the third resolution followed, less however, Madison tells
us, "on its general merits than on the force and extent of the particular terms
national and supreme." Charles Pinckney asked Randolph whether he
meant to abolish the state governments. Randolph replied "that he meant by
these general propositions merely to introduce the particular ones which
explained the outlines of the system he had in view." The question and answer
are significant: just what did the establishment of a supreme national
government imply? Did it involve the disappearance or the total absorption of
the states? In the weeks following that problem proved to be, as we have
already indicated, difficult and perplexing.[17]
"Mr. Gouverneur Morris explained the distinction between a
federal and national, supreme, Government; the former being a
mere compact resting on the good faith of the parties; the latter having a
compleat and compulsive operation." The word "federal", which we now use
as synonymous with "national", was then used in its original sense (Latin,
foedus, treaty). Mason at once struck at an essential fact; admitting
the deficiency of the Confederation in not providing for coercion and
punishment of delinquent states, he "argued very cogently that punishment could
not in the nature of things be executed on the States collectively, and
therefore that such a Government was necessary as could directly operate on
individuals, and would punish those only whose guilt required it." By "States
collectively" he evidently meant states in their corporate characters as
distinguished from the individuals composing them. Sherman was hesitant;
acknowledging that the Confederation was defective and that additional powers
were necessary, he stated — and the statement is important — that in
no case ought the general and particular jurisdictions to be concurrent; he was
indisposed to make too great inroads on the existing system, "intimating as one
reason, that it would be wrong to lose every amendment, by inserting such as
would not be agreed to by the States".
The third resolution, as given above, was adopted; six states voted in
the affirmative; one, Connecticut, in the negative; New York was divided. So at
the very beginning, the Rubicon was passed. The Convention decided not merely
to add powers to the Congress of the Confederation but to frame a government
national in scope and character. Long days of discussion followed; but there is
not a scintilla of evidence that the Convention turned its back upon the
purpose distinctly laid down on the thirtieth of May. State jealousies and
anxieties, local pride, and fear of an overawing national authority were still
to be dealt with; but the majority adhered to its purpose of establishing a
system which would not be a mere league of sovereigns.
Difficulty, however, lay immediately ahead; to vote for an efficient
government and even for one founded on national principles was one thing; but
if nationalism meant unequal representation of the states in the national
legislature, any plan of proportional representation was certain to arouse the
amour propre of the small states; the old fears and jealousies would be
awakened. There arose therefore not only the question of the independence and
sovereignty of the states, but also the natural unwillingness of some of the
delegates to favor a plan which would diminish the consequence and prestige of
their respective states. A small and weak state wished to hold up its head as
the equal of a richer and more powerful neighbor.[18] This dread
lest the stronger states oppress the weaker was of long standing; it had shown
itself especially in the formation of the Confederation, when states, notably
Maryland, had hesitated to sign the Articles because of the power and influence
of their larger landholding neighbors; it proved to be of consequence in the
Convention's labors. The grouping of the states was not quite the same as it
had been ten years before; but in general the same feeling of state pride and
the same feeling of foreboding on the part of the less populous or less
powerful states rendered the task of forming an effective union a difficult
one.
The full meaning and implication of proportional representation were
however clearly brought forth in this early discussion, for "Mr. Madison
observed that whatever reason might have existed for the equality of suffrage
when the Union was a federal one among sovereign States, it must cease when a
national Government should be put into the place." But the Delaware delegates
were restrained by their commission "from assenting to any change of the rule
of suffrage.
[]. " And so the matter was postponed for later consideration. During
the next few days the discussion — still in the committee of the whole
— was devoted to various points of interest. The Virginia resolutions were
taken up one by one and conclusions were reached which, however, had to be
debated again and in some respects modified in later days. The subjects debated
in these early days we may pass over with only a few words of comment, though
some of them were of crucial importance. Wilson made a number of especially
able speeches from which we can cull a few significant sentences: "If we are to
establish a national Government, that Government ought to flow from the people
at large." "Federal liberty is to States, what civil liberty, is to private
individuals. And States are not more unwilling to purchase it, by the necessary
concession of their political sovereignty, that [sic] the savage is to
purchase Civil liberty by the surrender of the personal sovereignty, which he
enjoys in a State of nature." Pointing to a principle which proved to be
fundamental in the scheme of imperial order ultimately agreed upon in the
Convention, he said, "All interference between the general and local
Governments should be obviated as much as possible."
The resolution providing for the adoption of the new Constitution by
conventions of the people was not debated at length, but in the course of the
discussion Madison presented the necessity for this method of ratification, if
the new government was to have substantial authority: "he thought it
indispensable that the new Constitution should be ratified in the most
unexceptionable form, and by the supreme authority of the people themselves."
[19] The resolution for popular ratification was passed (June 12),
six states voting in the affirmative; Connecticut, New York, and New Jersey in
the negative. Delaware and Maryland were divided.[20] That
ratification by the people would place the Constitution above state laws was
clearly presented, and, it would seem, thoroughly understood. Thus by the very
force called into operation for establishing the Constitution, the chief
problem of the period found a partial answer: the new union arising immediately
from the people was no longer to be a submissive and humble suitor dependent on
the whims, negligence, and changeful humors of state governments.
But the basis of representation in the national legislature could not be
indefinitely postponed; that particularly difficult bridge had to be crossed.
Despite opposition which had not, however, reached its most formidable stage, a
decision was reached not to follow the old rule of equal votes in the
legislature; proportional representation in both branches of the legislature
was decided upon. Franklin's assertion, at an earlier time, that a system
founded on injustice could not last, was in process of fulfillment. The
alignment of the states on this question is significant: on the question of
proportional representation "in the first branch", seven states voted in the
affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia, North
Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware voted in
the negative. Maryland was divided. The vote of Connecticut is specially
significant because it is plain that as early as this her delegation was ready
to accept proportional representation in one house, if equal representation in
the other should be granted. Dickinson had expressed belief in the advisability
of a similar adjustment.[21] When the question of representation in
the second branch came to be voted on, the states were grouped much as before;
but Connecticut voted for equal representation, as did Maryland, no longer
divided.
Quite plainly, at the end of two weeks of debate the Convention
contained two groups differing in opinion on certain pivotal if not absolutely
essential matters. On the one side were Massachusetts and Pennsylvania and the
four states south of the Potomac. They favored a system involving the principle
of nationalism and they defended a method of representation and a mode of
ratifying the Constitution which were consistent with the existence of a
national government.
Made up of states large in population or area, this group had shown a
certain degree of solidarity and unity of purpose. They objected to a system of
equality in representation which would allow the inhabitants of a state like
Delaware as much power in the government as that of its more powerful
neighbors. If all were to be citizens of the United States under a common
government, then the number of citizens within a given area should naturally
indicate the proportional number of representatives in the national
legislature.
The small-state group — Connecticut, New Jersey, Maryland,
Delaware, New York — gradually hardening into a fairly efficient
opposition was less coherent and less clear in its views than was the other.
The vote of Maryland had so far proved to be uncertain. As Hamilton could make
no headway against the two other delegates from New York, the vote of that
state was frankly against the purpose and designs of the nationalists.
Connecticut was open to reason, but its members were determined not to accept a
plan of organization which would belittle the states or leave them
helpless.[22] New Jersey stood for the principles of the Articles of
Confederation.
In the course of the first fortnight many fundamental questions were
touched upon — in fact nearly all of the most essential principles and
differences of opinion were brought into view, though not fully discussed. On
the whole, the nationalists had had their own way. Much remained to be done;
but the leaders had some ground for expecting a speedy and successful
conclusion of their labors. Unanimity, however, could scarcely have been hoped
for. There were differences of opinion which must be reconciled and harmonized
to save the Convention from shipwreck.
II: CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF FEDERALISM; COERCION
OF LAW AND NOT OF ARMS
The committee of the whole presented to the Convention (June 13)
nineteen resolutions, the product of its consideration of the Virginia plan.
These resolutions provided for a national government, a bicameral legislature
based on proportional representation in both branches, a national executive, a
national judiciary to consist of one supreme tribunal, power being given to the
national legislature to appoint inferior tribunals, and submission of the
Convention's work to assemblies chosen by the people. There were other not
unimportant provisions. The whole, though still general in its terms,
constituted a substantial scheme for a lasting and workable union. The
resolutions included the proposal to grant to the legislature the power to
negative state laws "contravening in the opinion of the National Legislature
the articles of Union, or any treaties subsisting under the authority of the
Union." The proposal of the Virginia plan to bestow upon the national
legislature the authority to coerce the delinquent states was not included in
the committee's resolutions.
At this juncture, the report of the committee of the whole having been
presented, Paterson told the Convention that it was the wish of "several
deputations, particularly that of New Jersey," to have further time to consider
the committee's report, and "to digest one purely federal, and
contradistinguished from the reported plan." The request having been granted,
he laid before the Convention (June 15) a set of resolutions which he wished to
be substituted for the plan "proposed by Mr. Randolph." The delegates from
Connecticut, New York, New Jersey, Delaware, and "perhaps", says Madison, "Mr
Martin from Maryland",[23] appear to have participated in the
preparation of these resolutions. The defenders of this "federal" scheme of
organization — the word "federal" being used to signify a plan of
confederate organization — differed, as we have already said, in their
main purposes. Dickinson said to Madison: "you see the consequence of pushing
things too far. Some of the members from the small States wish for two branches
in the General Legislature, and are friends to a good National Government; but
we would sooner submit to a foreign power, than submit to be deprived of an
equality of suffrage, in both branches of the legislature, and thereby be
thrown under the domination of the larger States." [24] He had at an
earlier time opposed "consolidation of the States into one great Republic", and
had advocated equal representation in one branch of the
legislature.[25] Plainly there was no unity or agreement in the
small-state group in behalf of the whole scheme of maintaining the essential
principle of the Confederation, the political equality and unimpaired
sovereignty of its members. Some of the small-state men were ready for
national government, provided the states were not destroyed. Could the
problem be solved?
The small-state plan proposed to amend the Articles of Confederation by
giving additional powers to Congress. It bestowed upon that body authority to
regulate foreign and interstate commerce, to levy import and stamp duties, and
to make rules and regulations for their collection. In this way it proposed
adding to the existing government — if Congress can be called a government
— the two essential powers without which any system of union would be weak
and probably helpless. Congress, by this plan, was also authorized to resort to
the old method of making requisitions upon the states and "to direct the
collection thereof" in any state not complying within a specified time; the
requisitions were to be in proportion to the whole number of white and other
free inhabitants and three-fifths of all other persons except Indians not
paying taxes. There was a provision for a federal executive and a judiciary.
But even this scheme of bolstering up the old federal union had to face the
vexing possibility of a state's disregard of obligations — "the chief
problem" once more. What answer did the New Jersey plan contain? It contained a
declaration, which will be discussed later, that the acts of Congress and
treaties should be "the supreme law of the respective States so far forth as
those Acts or Treaties shall relate to the said States or their Citizens, and
that the Judiciary of the several States shall be bound thereby in their
decisions, any thing in the respective laws of the Individual States to the
contrary notwithstanding...." But the plan included another answer — the
use of force; coercion, appearing at first in the Virginia plan, but
abandoned after brief discussion in the committee of the whole, was embodied in
the New Jersey plan: "if any State, or any body of men in any State shall
oppose or prevent the carrying into execution such acts or treaties, the
federal Executive shall be authorized to call forth the power of the
Confederated States, or so much thereof as may be necessary to enforce and
compel an obedience to such Acts, or an Observance of such Treaties." Even the
small-state party saw that the union could not survive, if reliance were based
entirely on the whims or the temperamental inclinations of the several states.
Both the national plan, when first presented, and the state sovereignty plan
contemplated the use of force to maintain the union.
One may inquire whether even the plan of the small states, purporting
only to amend the Articles, really conserved the principle of the Articles and
left the Confederation a union of sovereignties. But the mere grant of powers
to Congress and even the authority to collect requisitions would not
necessarily imply the transformation of the Confederation into something more,
something in essence quite different. Furthermore, though the proposal of the
particularists authorizing coercion of states is important, it does not imply
legal nationalism; the use of armed force against a state as a corporate body
was thoroughly consistent with the principle of state sovereignty.
The debates of the next three days (June 16, 18, 19) were crucial and
critical. Would the committee of the whole adhere to nationalism or be content
with modification of the Confederation? The issue was by no means entirely new.
At an earlier session, Paterson had declared the Convention's powers were
limited to amendment of the Articles. Referring to the wishes of the people,
the commissions under which the delegates acted, and the sentiments of the
states, he said: "The idea of a national Government as contradistinguished from
a federal one, never entered into the mind of any of them.... We have no power
to go beyond the federal scheme, and if we had the people are not ripe for any
other.... A confederacy supposes sovereignty in the members composing it and
sovereignty supposes equality." To this Wilson had replied, "If New Jersey will
not part with her Sovereignty it is in vain to talk of Government."
[26] That was the issue in these three eventful days of debate.
The advocates of state sovereignty made an able defense. The Paterson
plan, said Lansing, "sustains the sovereignty of the respective States, that of
Mr. Randolph distroys it...." And Paterson declared, "If the sovereignty of the
States is to be maintained, the Representatives must be drawn immediately from
the States, not from the people: and we have no power to vary the idea of equal
sovereignty. The only expedient that will cure the difficulty, is that of
throwing the States into Hotchpot" — equalizing the states or making one
geographic and political whole as the basis of political nationalism. Meeting
the assertions of the small-state group, Randolph declared in a powerful and
appealing speech, "The true question is whether we shall adhere to the federal
plan, or introduce the national plan.... We must resort therefore to a national
Legislation over individuals, for which Congress are unfit.... A
National Government alone, properly constituted, will answer the purpose; and
he begged it to be considered that the present is the last moment for
establishing one. After this select experiment, the people will yield to
despair." Madison and Wilson subjected the Paterson proposals to searching
analysis and criticism, pointing to their radical defects.
The issue was clearly stated. On the question whether the Randolph plan
"should be adhered to as preferable" to that of Paterson, seven states voted in
the affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia,
North Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware
voted in the negative; Maryland was again divided. So by a conclusive majority,
but in the face of strong opposition, once again the committee of the whole
decided in favor of a national system. The vote of the Connecticut delegates
shows once more the readiness to favor an effective government, and more than
that, a system avowedly national. If they had participated in drafting the
state sovereignty plan, they cast aside their own handiwork; as we shall see,
however, they were still determined not to allow the states to be overwhelmed.
The report of the committee of the whole was now before the Convention, and in
the following sessions all its parts and all its principles were vigorously
debated.
The day after the critical vote was taken and the nationalists had won a
victory, which, as far as principle was concerned, appeared decisive, Ellsworth
(June 20), seconded by Gorham of Massachusetts, moved that the first resolution
of the plan, which was then before the Convention, be changed so as to read: "
'the Government of the United States ought to consist of a supreme legislative,
Executive and Judiciary'." This change, he explained, "would drop the word
national, and retain the proper title 'the United States.' ... He wished
also the plan of the Convention to go forth as an amendment to the articles of
Confederation, since under this idea the authority of the Legislatures could
ratify it. If they are unwilling, the people will be so too.... He did not like
these [state] conventions.... They were better fitted to pull down than to
build up Constitutions." To this proposal Randolph replied that he "did not
object to the change of expression, but apprised the gentleman who wished for
it that he did not admit it for the reasons assigned; particularly that of
getting rid of a reference to the people for ratification." The Ellsworth
resolution was thereupon unanimously adopted.[27]
This dropping of the word "national" was in after years cited as
positive proof of the Convention's change of heart — proof that the
members had decided to abandon the aim of the nationalists and to form a
constitution on the basis of state sovereignty. Such an assertion could not,
with any show of reason, have been made except on the basis of the published
journal (1819) and Yates's minutes, which gave only in the meagerest possible
terms the fact of the formal omission of the word so objectionable later to the
ardent apostles of state sovereignty. But even these sources of information,
when the time and the circumstances are considered, should have led one to
doubt the sudden alteration of the Convention's purpose. The national plan had
just been accepted by seven states of the eleven present, the vote of one state
being divided. To suppose immediate retraction and sudden yielding to the
particularistic group is to suppose the impossible; and Madison's Notes,
already quoted, prove that there was no such retraction or surrender.
Furthermore, the plan of ratification by the people was later adopted, and as a
matter of fact, though this is not important, the word "national" was used in
debate, but not of course in formal resolutions.
The rejection of the Paterson plan did not entirely discourage the
small-state party. At intervals during the next fortnight the vexed subject of
proportional representation arose, a subject, it will be remembered, which
involved theoretically the surrender, or the diminution, of state sovereignty,
but also touched the amour propre of the smaller states. Some members,
who were not localists by prejudice and principle, feared lest the states be
totally submerged.
The question of representation became connected with the resolution,
already passed by the committee of the whole and in accordance with the
Virginia plan, to establish a legislature of two branches. Declaring that "the
true question here was, whether the Convention would adhere to or depart from
the foundation of the present Confederacy", Lansing proposed (June 20) that the
powers of legislation be vested in the United States in Congress — that is
to say, in a single body similar to the Congress of the Confederation. To this
Mason objected, saying that the mind of the people was well-settled in an
attachment to republican government and to more than one branch in the
legislature. Sherman, however, though supporting Lansing, expressed a
willingness to compromise: "If the difficulty on the subject of representation
can not be otherwise got over, he would agree to have two branches, and a
proportional representation in one of them, provided each State had an equal
voice in the other." This proposal was not, as we have seen, original with
Sherman, nor was it confined to the Connecticut delegation, though that
delegation seems to have been specially interested in it.
Obviously, some of the men fearing the larger states and quite unwilling
to see the smaller states totally robbed of equal power in the national
councils might be content with something less than complete victory. Lansing's
proposal as given above — that legislative power be vested in the United
States in Congress — was defeated by the customary majority — the six
large states voting against it. Connecticut, New York, New Jersey, and Delaware
voted in its favor; Maryland was divided. This vote registered the decision of
at least six states not to be content with a unicameral legislature; and on the
true question underlying it all — whether the Convention would or would
not depart from the fundamental principle of the Confederation — the
particularists had once more suffered defeat. But the question still remained
whether the Convention, by direct affirmative vote, would decide upon two
legislative branches in the proposed national system. The very next day (June
21) the affirmative resolution to establish a legislature of two branches was
passed by a vote of seven to three (Maryland again divided). This time
Connecticut voted with the large states.
Though much remained to be done and anxious days were ahead, the
Convention had now reached a position — as yet perhaps not fully seen by
its members — which deserves careful examination. The problem of
representation was not fully disposed of. The large-state or national party had
been moving victoriously forward. Were its plans to be carried through to the
end? And, if carried through, just what did that success imply? The Convention
was now approaching the center of the complicated problem of imperial
organization. As we have already pointed out several times, the task of forming
a national government and of bestowing upon it powers sufficient to guarantee
effective life to the system was naturally troublesome and perplexing: but the
critical matter was to provide not only for an effective government but also
for the preservation of the states as political bodies which would be more than
administrative districts.
The problem of establishing a federal republic, as distinguished from
one purely national, could not be solved by destroying the states. So
thoroughly had the Convention determined upon a national system that before the
end of June the question was not whether the states should be united in an
integral union but whether they should be placed at the mercy of a central
government. At least one member of the Convention saw the real nature of the
problem and was able to state it clearly. Probably others were equally aware of
the difficulty and recognized its critical character, but Johnson of
Connecticut stated it exactly: "On a comparison of the two plans which had been
proposed from Virginia and New Jersey, it appeared that the peculiarity which
characterized the latter was its being calculated to preserve the individuality
of the States. The plan from Virginia did not profess to destroy this
individuality altogether, but was charged with such a tendency. One Gentleman
alone (Colonel Hamilton) in his animadversions on the plan of New Jersey,
boldly and decisively contended for an abolition of the State Governments. Mr.
Wilson and the gentleman from Virginia who also were adversaries of the plan of
New Jersey held a different language. They wished to leave the States in
possession of a considerable, though a subordinate jurisdiction. They had not
yet however shewn how this could consist with, or be secured against the
general sovereignty and jurisdiction, which they proposed to give to the
national Government. If this could be shewn in such a manner as to satisfy the
patrons of the New Jersey propositions, that the individuality of the States
would not be endangered, many of their objections would no doubt be removed. If
this could not be shewn their objections would have their full force. He wished
it therefore to be well considered whether in case the States, as was proposed,
should retain some portion of sovereignty at least, this portion could be
preserved, without allowing them to participate effectually in the General
Government, without giving them each a distinct and equal vote for the purpose
of defending themselves in the general Councils."[28]
Whatever we may think of Johnson's suggestion of state participation in
the general government, he comprehended clearly the problem of preserving the
states as political entities.
Wilson and Madison tried to answer Johnson's question. Neither believed
the states were in danger. "The General Government", said Wilson, "will be as
ready to preserve the rights of the States as the latter are to preserve the
rights of individuals...." Madison concluded that "Guards were more necessary
against encroachments of the State Governments — on the General Government
than of the latter on the former.... Were it practicable for the General
Government to extend its care to every requisite object without the
coöperation of the State Governments the people would not be less free as
members of one great Republic than as members of thirteen small ones."
Evidently Madison was still impressed with the danger of dissolution, the
product of state heedlessness and willful pride.
The Convention had been in session for a month and the crucial question
of representation was not yet disposed of. It was brought up for settlement
June 27, on a resolution for proportional representation in the first branch of
the national legislature. In opposition, we need to remember, were the
proponents of state sovereignty, those not especially addicted to a principle
but because of state pride unwilling to surrender equality, and others like
Johnson fearing lest the states be totally submerged. So critical did the
situation seem to be that after the debate had continued some time, Franklin,
asserting his belief "that God governs in the affairs of men", proposed
that the Convention henceforth open its sessions with prayers "imploring the
assistance of Heaven...." But the members feared "disagreeable animadversions";
the public might believe the calling in of divine guidance due to
embarrassments and dissensions. Within the Convention Williamson remarked,
however, that "the true cause of the omission could not be mistaken. The
Convention had no funds." Could no minister be unearthed in Philadelphia who
would pray for his country without price?
Opening the discussion on this salient matter of representation in
Congress, Martin, in a speech which lasted three hours on one day and was
continued on the day following (June 27, 28), presented "at great length and
with great eagerness" the cause of state sovereignty. "... an equal vote in
each State was", he said, "essential to the federal idea, and was founded in
justice and freedom, not merely in policy ... that the States being equal
cannot treat or confederate so as to give up an equality of votes without
giving up their liberty...." Hamilton, who was about to leave the Convention
(June 29) and not participate in its debates for a considerable
time,[29] pleaded for effective union, and pointed out the
distinction between the "carrying and non-carrying States", which would hold
the largest states apart one from the other rather than give harmony and group
activity.[30] Madison made two exceptionally able speeches; and he
spoke, as did Hamilton, of the improbability of combination between such states
as Virginia, Massachusetts, and Pennsylvania, which, different in manners and
religion and in point of the staple productions, "were as dissimilar as any
three other States in the Union." These two men were thus presenting the true
situation; there was and could be no real antithesis between the small states
and their powerful neighbors; the real danger, if danger should ever come,
would be caused by differences of economic interests or diversities of manners
and attitudes of mind, and not by the wealth or power of the respective states.
On the third day of debate (June 29) it was voted that in the first branch of
the legislature the rule of suffrage should not be according to that of the
Articles of Confederation. The six large states of course voted in the
affirmative; the others — Connecticut, New York, New Jersey, Delaware
— in the negative; Maryland was again divided. At the opening of that
day's session, Johnson had strongly expressed again the opinion to which we
have already given special attention; something must be done to save the states
from annihilation. And now that proportional representation in the lower house
had been decided upon, his colleague, Ellsworth, rose to advocate equal
representation in the second chamber. He was not sorry on the whole, he said,
that the vote just passed had registered the Convention's decision against that
rule of suffrage in the first branch. He hoped it would become the basis of a
compromise: "We were partly national; partly federal. The proportional
representation in the first branch was conformable to the national principle
and would secure the large States against the small. An equality of voices was
conformable to the federal principle and was necessary to secure the Small
States against the large."
In the Convention we must notice — if repetition may be pardoned
— that Johnson was, to all appearances, not greatly interested in the
controversy between large states and small, but in the danger that nationalism
would entirely submerge the states. Ellsworth, it is true, if we can judge from
his argument at this juncture, feared large-state domination; and still, how,
in the absence of modern terms of description, could the men then forming a new
kind of body politic, which we now call a "federal state" and which the men of
the day soon came to call a "confederated republic", have better expressed the
nature of that political system than in Ellsworth's words — a system
"partly national; partly federal"?[31] Toward the end of a long day
(June 30), filled with acute argument and with a fervor verging upon acrimony,
Ellsworth declared: "Under a National Government he should participate in the
National Security, as remarked by Mr. King but that was all. What he wanted was
domestic happiness. The National Government could not descend to the local
objects on which this depended. It could only embrace objects of a general
nature. He turned his eyes therefore for the preservation of his rights to the
State Governments." King's answer to Ellsworth is noteworthy: "In the
establishment of Societies the Constitution was to the Legislature what the
laws were to individuals. As the fundamental rights of individuals are secured
by express provisions in the State Constitutions; why may not a like security
be provided for the Rights of States in the National Constitution."
These quotations are given here to demonstrate, as far as a few words
can, that in the minds of some of the men — how many we do not know —
the aim was not to prevent nationalism, but to assure the existence of
the states; in other words, to solve the problem of imperial federalism and not
allow nationalism to become consolidation. It is interesting to see Ellsworth,
who some ten days previously had moved to change the opening resolution of the
committee of the whole's report, so as to omit the word "national", now
speaking of a "National Government" and assuming the establishment of such a
government. But the idea, possibly the hope, of maintaining state sovereignty,
as such, was not entirely dead; Martin, of course, was adamant. Bedford of
Delaware "contended that there was no middle way between a perfect
consolidation and a mere confederacy of the States." The large states, he
declared, dared not dissolve the confederacy, and if they should, the small
states would find some foreign ally to take them by the hand.
In the debate on Ellsworth's motion for equal representation in the
second branch, Wilson and Madison gave elaborate expositions of their doctrine
of nationalism and defended the organization of a government which they
believed to be consonant with nationalism. Though not advocating destruction of
the states, they were determined to prevent equality of representation in the
second legislative chamber as well as in the first; they believed the danger to
the small states to be imaginary only; and they thought an equality, which
disregarded facts, was unwise. "If the minority of the people of America", said
Wilson, "refuse to coalesce with the majority on just and proper principles, if
a separation must take place, it could never happen on better grounds.... We
talk of States, till we forget what they are composed of." Madison now declared
the division of interests did not in fact lie between the large and the small
states but between northern and southern. King, ably and eloquently speaking in
behalf of the cause of nationalism, declared he was filled with astonishment at
the sight of men, who, if they were convinced that every individual was secured
in his rights, "should be ready to sacrifice this substantial good to the
phantom of State sovereignty".
The vote on the resolution for equality of suffrage in the second branch
came at the opening of the session on July second. The result was a tie —
five votes to five.[32] Georgia, which had steadily voted with the
large-state party, was now divided — Baldwin voting for equal
representation, and Houstoun against it. Baldwin was a Connecticut man who had
not long before removed to Georgia, and we may well suppose he was influenced
by the old, seasoned politicians of the northern state to support their cause
and perhaps save the Convention from dissolution and failure. The vote of
Maryland, which had been so often tied, was cast by Martin alone because of the
tardiness of his colleague Jenifer in coming to the meeting. If Baldwin had
continued to vote as he had previously voted, and if Jenifer had been prompt in
attendance on that eventful morning, the large-state party would have been
successful once more. On this narrow margin did the fateful decision — or
evidence of inability to reach decision — depend.[33]
The Convention was now, as Sherman said, "at a full stop...." Evidently
the small-state men were beyond persuasion; and if they were defeated, the
Convention would be a failure. Concession was inevitable. General Pinckney
proposed the appointment of a committee to report a compromise. Madison and
Wilson were opposed to the commitment. But Martin warned the Convention that no
modifications whatever could "reconcile the Smaller States to the least
diminution of their equal Sovereignty." A committee of one from each state was
agreed upon. That the result would be a report recommending compromise was
foreseen; and the committee was so constituted as to make at least partial
victory for the small-state men a foregone conclusion; not one of the steadiest
objectors to equality in the Senate was named a member. The Convention
adjourned to allow time for the committee's work.
Those were anxious days, though in fact the crisis was actually passed;
no committee report could shatter the fundamentals of the national system
already agreed upon. The committee's report — constituting the great
compromise on the subject which had vexed the Convention for weeks —
provided that in the first branch of the legislature each state should be
allowed one member for every 40,000 inhabitants; in the second branch, each
state should have an equal vote; all bills for raising or appropriating money
and for fixing salaries must originate in the first branch and not be altered
or amended by the second.
The more strenuous members of the large-state party protested; they were
not content. Madison did not regard the power of the lower house to originate
money bills as any concession, and he "was not apprehensive that the people of
the small States would obstinately refuse to accede to a Government founded on
just principles...." Morris made a peculiarly vigorous appeal to the sense of
the assembly. He came there, he said, as a representative of America, "in some
degree as a Representative of the whole human race; for the whole human race
will be affected by the proceedings of this Convention." If the small states
should refuse to consent to a system essentially sound, they might, he
declared, make "a noise for a time," but eventually they would find ties of
interest, kindred, and common habits too strong to be broken. "This Country",
he exclaimed, "must be united. If persuasion does not unite it, the sword
will." He appears to have had clearly in mind a thought which we have seen
Madison expressing before, that groups of like economic and social interests
would come to the fore, and that the antithesis between the large and small
states was unreal; at all events, the future proved (and is proving to-day) the
essential truth of that position.
For more than a week the debate went on; the report of the committee was
taken up piecemeal; it was discussed and rediscussed; changes and additions
were made, but the essentials of the committee's recommendations, including the
crucial clause which gave equal representation in the Senate, stood unaltered.
The question of agreeing to the whole report as amended was carried by a vote
of five to four (July 16). Pennsylvania, Virginia, South Carolina, and Georgia
voted in the negative; Massachusetts was divided. Once again by the narrowest
of margins a momentous decision was reached; but the importance of the decision
consists not so much in the content of the resolution as in the fact that a
decision was reached at all and that the break-up of the Convention was
avoided.
The truth is, the nationalists had lost little or nothing, though some
of them were for the moment discouraged. Equal representation of the States in
the Senate neither injured the large states as such nor destroyed the principle
of nationalism; in the long run it probably had no appreciable effect in
preserving the states from being compounded into a consolidated republic; it
did not protect the smaller states against their larger neighbors. The Senate
has at no time stood as a guardian of the weaker members of the union.
Nationalism, though endangered by sectionalism, brought into play the loyalties
and the coöperation of groups irrespective of the size or material wealth
of the particular states. Such nationalism as we now know — a nationalism
of patriotism and loyalty — had to grow by degrees; and the development of
the central government, produced by the industrial and social changes of the
passing decades, was not hindered by the Senate of the United States.
Only one week after the settlement* of the great dispute by the
acceptance of compromise, a motion was made that the members of the second
branch, the Senate, should vote per capita (July 23). Ellsworth said he always
had been in favor of such a provision. But it was a momentous change. Martin
pointed out that it meant a departure from "the idea of the States being
represented...." Possibly the small-state men — such of them as remained
— supposed the senators from any one state would act together on any
matter directly affecting the interests of their state; but the resolution was
at variance with the idea that the senators came as ambassadors to express the
will of their master; and in fact, Gerry, a few days earlier, had suggested per
capita voting because it would prevent delays and inconveniences which had been
experienced in the old Congress, "and would give a national aspect and Spirit
to the management of business."
By the adoption of the great compromise neither party in the Convention
was entirely satisfied. Lansing and Yates had left before the crucial vote was
taken, reporting to Governor Clinton that the Convention was proceeding along
lines beyond the powers of the delegates and that it was impracticable to
establish a general government pervading every part of the United States,
certain in a short time to "be productive of the destruction of the civil
liberty of such citizens who could be effectually coerced by
it".[34] Luther Martin remained, though he left before the end to
make an attack upon the Convention's work. But others went on with the job.
"From the day when every doubt of the right of the smaller states to an equal
vote in the senate was quieted, they — so I received it from the lips of
Madison, and so it appears from the records — exceeded all others in zeal
for granting powers to the general government. Ellsworth became one of its
strongest pillars." [35]
It is expedient to mention here a discussion concerning treason which
arose a month after the great compromise. There was no doubt about the
possibility of treason against the United States, but could there be treason
against a state? A clause of the resolution of the committee of detail declared
treason to consist "only in levying war against the United States, or any of
them; and in adhering to the enemies of the United States, or any of them."
Differences of opinion developed, and the nature of the discussion cannot be
ascertained with assurance from Madison's treatment. Johnson, who two months
before had stated so clearly the necessity of preserving the states, now
declared there could be no treason against a particular state. Mason said the
United States would have a qualified sovereignty only; the individual states
would retain a part. "An Act may be treason against a particular State which is
not so against the United States." But Johnson answered, "That case would
amount to Treason against the Sovereign, the supreme Sovereign, the United
States". The trouble plainly arose in part from the difficulty of determining
the nature and extent of the sovereignty which the states retained, if they
retained any at all. Ellsworth maintained the existence of divided sovereignty,
the United States being sovereign on one side of the line dividing the
jurisdictions, the states on the other: "each", he said, "ought to have power
to defend their respective Sovereignties." But in the end the decision was to
leave out reference to the states and define treason against the United States.
Whether or not this conclusion implies and was meant to imply that there can be
treason against a state is uncertain; beyond all doubt, however, it recognizes
the sovereign character of the union, perhaps on the theory of a sovereignty
divided between states and nation.[36]
Thus far we have followed the main line of the Convention's work and
have attempted to make clear the struggle over the nature of the union. The
contest had centered on the question of representation, because, if the union
was to be a national union, people, citizens, should be the basis of
representation, not states as corporate bodies. The advocates of state equality
and equal representation of the states had met with successive defeats; but
those who were anxious to preserve the states, though not averse to a national
system, attained their goal, as they believed, by providing equal
representation in the Senate.
It had been at least partly taken for granted that the establishment of
a national government logically and properly implied the operation of that
government directly on individuals. King and Madison had announced (July 14)
the principle with especial plainness. There never will be a case, said King,
in which the general and national government "will act as a federal Government
on the States and not on the individual Citizens." Madison "called for a single
instance in which the General Government was not to operate on the people
individually." [37] Wilson, moreover, had brought forth with great
clearness that there should be little or no contact between the central
government and the states: "The same train of ideas which belonged to the
relation of the Citizens to their State Governments were applicable to their
relations to the General Government and in forming the latter, we ought to
proceed, by abstracting as much as possible from the idea of State Governments.
With respect to the province and objects of the General Government they should
be considered as having no existence." [38]
Quite obviously, if there were to be spheres of authority, there was
need of marking out the political domain of each with considerable
distinctness. And here, let us notice, is not only a central principle of
the American federal state, but the real answer to the anxieties which had
burdened the hearts of the small-state men who feared destruction of the
states; the answer to their anxieties did not in reality rest on equal
representation in the Senate, but on granting to the national government
clearly-stated and clearly-recognizable powers. Only on such a principle, could
freedom from friction between governments be avoided; and only in this way
could the states have reasonable assurance of their continuance as efficient
and effective members of an integral union.
Now, it is an interesting fact that this question of exact distribution
of powers between the states on the one hand and the central government on the
other did not receive much consideration during the first two months. When the
Convention turned over to the committee of detail a series of resolutions to be
fashioned into a constitution, the statement of distribution was still general
and indefinite.[39] Why this delay in making explicit assignment of
powers? The delegates were particularly interested in the establishment of a
permanent union, and not until that troublesome question was answered were they
ready for details. But most important of all was the fact that the assignment
of powers did not present an intricate and novel difficulty; the men of those
days, though engaged in a task requiring great wisdom and discretion, were not
dependent on mere theory concerning this essential matter. Behind them lay the
practices of the old empire, the experiences of the Revolution, and the
provisions of the Articles of Confederation. Historical facts pointed the
way.[40]
The assignment of explicitly enumerated powers was first worked out not
in open Convention but by the committee of detail.[41] In its report
the powers of Congress were named in eighteen brief paragraphs. The new
government was to have prescribed powers. Such was the inevitable presumption,
but it was made clear beyond all presuming when, after the ratification of the
Constitution, the tenth amendment was adopted. The powers thus granted were
stated in broad and rather generous terms, without niggardly precision. The
vitality of a federal republic — its continuance as a working system
— depends on the accuracy with which powers are distributed; those that
can be most effectively administered by the central government, without undue
encroachment on local affairs, should be deposited with that government; those
powers adapted to local needs and properly subject to local authority should be
left to the individual commonwealth. Changes in the social and industrial
order, such changes as came in the last half of the nineteenth century and
after, may make advisable a reassortment of powers; but the principle of
distribution based on the capacity for serving the needs of society must
remain, if the federal state is to continue, preserve its essential character,
and not be lost in centralized nationalism.
We have seen how, despite fears and jealousies, a national government
with extensive powers was decided upon. This was an essential part of the
solution of the problem of which the reader has often been reminded — the
problem of establishing a system in which the states would abide by their
obligations and not destroy the union. But, so far, we have not seen what
became of two provisions which were put forth at an early stage as solutions of
this problem — the proposals to give the national legislature authority to
coerce a recalcitrant state and the authority to negative state laws. Coercion
fell by the wayside in the early days of the Convention as the plan of forming
a national government operating directly on individuals took shape; as the
implications of the plan became apparent, coercion was abandoned.[42
] Not only did war upon a state, because of the misdeeds of its
government, inflict suffering on individual citizens, but it was really a
method — a method inherited from barbarism — of settling disputes
between nations in the absence of enforceable law.[43] The
Constitution in its final form gave Congress the power to call forth the
militia to execute the laws of the union, suppress insurrections, and repel
invasions, but coercion of delinquent states in their corporate capacity was
abandoned because coercion of individual citizens, disobedient to the law, was
consistent with real nationalism and consistent too with the prospect of a
permanent, smoothly-working union.
The proposal to give the national legislature authority to veto state
laws, which, like coercion, was thought to be a proper method for preserving
the union and solving "the chief problem", was for a considerable time ably
defended by some of the eager nationalists. It was accepted without dissent or
debate (May 31 ).[44] But objections arose, and six weeks later
(July 17) the matter came up for final decision. Madison still believed the
negative as essential "to the efficacy and security of the General Government";
the necessity of such a government proceeded, he said, from the propensity of
the states to pursue their particular interests. Gouverneur Morris, on the
other hand, said such a power would be "terrible to the States, and not
necessary, if sufficient Legislative authority should be given to the General
Government." Then Sherman made a most significant statement: the negative, in
his opinion, was unnecessary, "as the Courts of the States would not consider
as valid any law contravening the Authority of the Union, and which the
[national] legislature would wish to be negatived." A law that ought to be
negatived, Morris now declared, would be set aside by the judiciary department,
and if that security should fail, the law might be repealed by a national law.
The principle was, however, firmly grasped and most clearly stated by Sherman,
who asserted that the power proposed to be given to Congress involved "a wrong
principle, to wit, that a law of a State contrary to the articles of the Union,
would if not negatived, be valid and operative." In other words, a state act
contrary to the Constitution could not be law; it had no validity.
Immediately after the vote on the power of negativing was taken, Martin
rose and presented a resolution which had first appeared in the small-state
party plan and was probably his own handiwork.[45] Reference to it
has already been made. It deserves repetition here: "that the Legislative acts
of the United States made by virtue and in pursuance of the articles of Union,
and all treaties made and ratified under the authority of the United States
shall be the supreme law of the respective States, as far as those acts or
treaties shall relate to the said States, or their Citizens and inhabitants
— and that the Judiciaries of the several States shall be bound thereby in
their decisions, any thing in the respective laws of the individual States to
the contrary notwithstanding". The resolution was adopted without dissent (July
17).
A month and more after the adoption of this resolution, it was amended
(August 23), and the amendment is of signal interest; it added at the beginning
the words "This Constitution". Thus, not only laws and treaties of the United
States, but the Constitution itself was declared to be the supreme law of the
respective states and of their citizens and inhabitants. The wording of this
provision, as it appeared in the final draft of the Constitution, differs
slightly from that just given: "This Constitution, and the laws of the United
States which shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every State shall be bound thereby,
anything in the Constitution or laws of any State to the contrary
notwithstanding." The people of a state, acting even in their primary capacity
when forming their own constitution, cannot legally violate the Constitution,
laws, or treaties of the United States. This declaration, therefore, taken on
its face, does not leave a shred of state sovereignty as a legal theory of the
union — if, of course, we mean by state sovereignty the undiminished
authority of a fully-competent body politic.
It is difficult to overemphasize the importance of this declaration in
the Constitution. The significant word is not "supreme", but "law". If the
Constitution is law, nothing contrary to it can also be law. There can be no
such thing as illegal law. Furthermore, to make the declaration explicit beyond
all chance of misunderstanding, the judges in their court-rooms are bound to
recognize and apply the Constitution. Courts — acting as all courts are
expected to act in distributing justice to litigants — must treat the
Constitution as law. The very structure of the union, the very essentials of
the federal system were thus intrusted to courts. No special tribunal was set
up, no body of censors, no board of review; judges in the quiet of their own
courtrooms must maintain the authority of government and the binding effect of
the Constitution on which the federal system rests.
The resolution, when it was first presented, imposed responsibility upon
the state courts, and the article as finally adopted especially mentions state
judges. But we can hardly suppose the framers' intention not to include the
federal courts. Logically at least, they also must treat the Constitution as
law, and this logic is supplemented by the words of the third article giving to
the federal courts jurisdiction of cases arising under the Constitution, laws
of the United States, and treaties. This brings up the question whether or not
the courts of the United States and the courts of the state were assumed to
have the right to declare an act of Congress void. That the courts must
interpret the Constitution and determine its particular applications before
they can decide certain kinds of controversies, seems an inevitable conclusion;
and in doing so they may be called upon to uphold the Constitution and ignore
an act. This subject will be considered somewhat more fully in later pages of
this work; it is sufficient to point here to the cardinal fact that the
Constitution is plainly declared to be law, enforceable in courts, to be
handled as other law is handled, to be treated with the respect with which
other laws are treated, to be enforced as other laws are enforced; for the duty
of any court is to announce and apply law. That the Constitution was to be
binding and legally infrangible is a matter of immense importance; but here we
are considering the right to judge whether an act violates it; and in this
connection the significant fact is that courts and judges are mentioned at all
and that the courts are called upon to treat the Constitution as
law.
We must add that the principle of judicial authority to declare a
legislative act void was mentioned in the Convention at various times. Martin,
for example, — perhaps the ablest technical lawyer of them all —
objecting to the association of the judges with the executive as a council of
revision, declared, "And as to the Constitutionality of laws, that point will
come before the Judges in their proper official character. In this character
they have a negative on the laws." Some of the delegates were, it is true, not
prepared to accept this principle; and in fact, though the duty of state judges
to treat the Constitution as law was made perfectly plain, there was no
complete and definite announcement by the Convention of a court's duty to
pronounce congressional acts void. And still, it may be fair to say, the
existence of this judicial power was by most of the delegates taken for
granted.[46] The delegates knew the principle well enough; they did
not need to create an idea entirely new. They were, moreover, not likely to be
especially affrighted by the spectacle of a court's ignoring a congressional
act. Though anxious to establish an effective government and an indestructible
union, they were not desirous of so arranging the system that an unfettered
democracy might have its way or that a government might move on without check
or hindrance — quite the contrary.[47]
III: SECTIONAL DIVERSITY; SLAVERY; THE PRESIDENCY; THE PHILOSOPHY OF THE
FATHERS
During the first two months, while the Convention was engaged in
discussing the nature of the new union and in seeking to adjust the differences
between the large and the small-state factions, various other subjects were
debated and at times the serious fact of sectional diversity came into view.
The differences between east and west and between north and south were real.
Should new states when admitted to the union be allowed representation on the
same terms as those provided for the other states? In other words, in a
developing empire, was the union to be one of equal states or not? And if the
principle of proportional representation were adopted, should slaves be counted
in the enumeration of inhabitants?
Proposals to limit the power of the west were advocated especially by
Gouverneur Morris, who believed "The Busy haunts of men not the remote
wilderness, was the proper School of political Talents." [48] For
once, the mild-mannered Madison forgot to be gentle. Morris, he said, on the
one hand recommended to the southern states implicit confidence in the northern
majority, and at the same time "was still more zealous in exhorting all to a
jealousy of a Western majority. To reconcile the gentleman with himself it must
be imagined that he determined the human character by the points of the
compass."[49]
Before Morris had announced his fears, Mason proclaimed his antagonism
to discrimination against the frontier: "Strong objections", he said, "had been
drawn from the danger to the Atlantic interests from new Western States. Ought
we to sacrifice what we know to be right in itself, lest it should prove
favorable to States which are not yet in existence." So here was a strange
antithesis: Morris, representing the freemen of a state which had been a
wilderness only a hundred years or so before, speaking words of disparagement
concerning the frontiersmen; Mason, a master of many slaves, the ruler of a
large plantation, the owner of a magnificent estate where his daily wants were
ministered to by a retinue of black servitors, insisting upon the principle of
democratic equality. The counsels of liberality prevailed. The Convention
refused to provide for limited and inferior representation of the
west.[50]
But when provision for the admission of new states was under
consideration, Morris returned to the idea of protecting the east. He did not
succeed in securing definite decision in favor of inequality, but he was
successful in obtaining the abandonment of an explicit provision for the
admission of new states "on the same terms with the original States". The
decision of the Convention, as it appears in the finished Constitution, simply
reads, "New States may be admitted by the Congress into this Union...."
[51] It is difficult to escape the conclusion that this was a vague
and inexplicit compromise which left to Congress the right at its discretion to
prescribe such terms of admission as would make the new states inferior to the
old.[52] Certainly the principle of equality was not plainly and
definitely announced.
Connected with the question of the west and its proportionate
participation in the new government was the question whether slaves should be
counted in fixing the basis of representation. In the earlier days the proposal
to enumerate three-fifths of the slaves appeared to be acceptable, but at a
later time objections arose. Certain men from the far south declared in favor
of enumerating all the slaves. Some of the northern members, on the other hand,
could see no propriety in counting any of them. "Are they admitted as
Citizens?" asked Wilson. "Then why are they not admitted on an equality with
White Citizens? Are they admitted as property? then why is not other property
admitted into the computation?" Morris declared "he verily belived [sic]
the people of Pennsylvania will never agree to a representation of Negroes."
The problem was complicated by the belief that property should be taken into
consideration as a basis of representation, and negro labor was apparently
supposed to be less productive of wealth than free labor.[53]
Davie of North Carolina insisted upon counting at least three-fifths of
the blacks. Without such recognition of slave property and numbers, North
Carolina would never "confederate". Morris proposed that the basis of taxation
and representation be the same, and this proved to be the way out of the maze;
the proposal was adopted. Direct taxation and representation stood together; in
assigning representation and direct taxation, three-fifths of the slaves were
to be counted. If a slaveholding state had more wealth, as judged by its
population, let it pay more taxes. We should notice that the resolution as
finally phrased refers to direct taxes, by which, it is probable, the
Convention meant something in the nature of a requisition, something at least
different from an excise or a tax on imports; but in the course of the
following years indirect taxation was the mode commonly used for revenue.
Toward the end of August, after three months of labor, new difficulties
arose and brought the existing sectional diversities sharply to the light.
Serious though not prolonged debate arose over the proposal to deny to Congress
the power to levy duties on exports. "To deny this power", Wilson declared, "is
to take from the Common Government half the regulation of trade". The
discussion brought differing economic interests to the light, but sectional
lines were not sharply drawn and concession was reached without great
difficulty. The proposal to deny the power was adopted.[54]
The greater trouble, however, was presented by the slave-trade. Here
there was not only diversity of sectional interests — for the far south
demanded the right to import slaves — but also a moral problem. Georgia
and South Carolina wanted more slaves to till their fields; the men of the
middle region protested against the trade. Some of the New England men thought
it better to allow the importation of slaves than to abandon the hope of a
constitution; they believed slavery was disappearing and could not endure.
Morris had at an earlier day bitterly attacked slavery, and now Mason, a
slave-owner, with great feeling and intense earnestness, passed judgment upon
its iniquities: "Every master of slaves is born a petty tyrant. They bring the
judgment of heaven on a Country. As nations can not be rewarded or punished in
the next world they must be in this. By an inevitable chain of causes and
effects providence punishes national sins, by national
calamities."[55]
As some of the delegates from the south declared that, if the right to
import slaves were denied, their states would not accept the Constitution, the
Convention had to do something to settle the difficulty. The draft of the
Constitution reported by the committee of detail (August 6) denied to Congress
the authority to levy a tax on the migration or importation of such persons as
the several states should think proper to admit, and denied the authority to
prohibit such migration or importation; the committee had also reported a
provision requiring a two-thirds vote for the passage of a navigation act. Thus
an opportunity for compromise was offered; and so the final agreement was
reached: the slave-trade was not to be prohibited before the first of January,
1808, but in the meantime a tax not exceeding ten dollars per person might be
imposed; the proposal requiring a two-thirds vote for the passage of a
navigation act was abandoned. In the course of the discussion Madison
complained that twenty years would produce all the mischief that could be
apprehended from the liberty to import slaves. New Jersey, Pennsylvania,
Delaware, and Virginia, voted against allowing importation for twenty
years.[56]
In later years the Constitution was spoken of as if it were a compact or
agreement between the slave states and the free. Nothing can be more false to
the fact. The opposition to slavery was by no means confined to the northern
states. The right to continue the slave-trade was extorted from the Convention
by the delegates of two or three states,[57] and by reluctance of
others to see the hope of union shattered. Slavery was openly condemned, and no
one but Charles Pinckney ventured upon an elaborate defense of it; he presented
briefly an argument with an aroma similar to the philosophy of Calhoun fifty
years later.[58] Though the New Englanders later voted in favor of
allowing importation for a time, they appear to have been influenced, as has
been suggested, by the belief that slavery would not last. Alas! Before a
decade had passed, Eli Whitney had invented the cotton gin.
No single problem was more perplexing than that presented by the
presidency. The chief magistrate, with extensive executive powers, must be
effective but not clothed with the majesty of monarchical authority; he must
not appear to the people, when the veil should be lifted from the Convention's
handiwork, as only another king and perhaps an incipient despot. He must be
dependent and not autocratic, but he must also have sufficient though not
dangerous independence. The principle of the separation of powers must be made
secure; the executive must not be the mere creature of the legislature.
But if the Convention was to succeed in establishing an executive
clothed with authority and still so held in leash that he could do no serious
harm, some suitable method of election must be discovered. Wilson said, as the
Convention neared the end, "This subject has greatly divided the House, and
will also divide people out of doors. It is in truth the most difficult of all
on which we have had to decide." [59] If there had been complete
confidence in the intelligent will of the people-at-large, possibly popular
election might have solved the problem; but this is merely a vague hypothesis,
and we need not look askance at the Convention's attitude of mind when we think
of the America of those days, without good roads, with no telegraph, no
railroads, no newspapers of general circulation, no adequate means of knowing
who were the suitable men to be intrusted with the leadership of the nation;
there were no national parties and no national party machines; in short, men
were living in the eighteenth century. There appears in general to have been
some confidence in the process of successive filtrations: a chosen few selected
for the ultimate task would have the requisite wisdom to elect to high office
men of superior ability and virtue.
The decision was at length in favor of choice by electors. This
arrangement, however, brought up new objections, for, by the plan proposed, if
the electors should fail to give any one person a majority, the duty of choice
would fall to the Senate. Mason declared that "nineteen times in twenty the
President would be chosen by the Senate, an improper body for the purpose." To
allow the Senate this power of choice appeared unendurable because the
president had already been made subservient to the Senate in certain vital
particulars. "... the President", Wilson said, "will not be the man of the
people as he ought to be, but the Minion of the Senate. He cannot even appoint
a tide-waiter without the Senate". But other difficulties were to be met: by
the proposed method of election each state was to appoint as many electors as
it had representatives and senators; this was an advantage to the large states.
But if the Senate would frequently have the duty of electing when no one person
had received the majority of votes for the presidency, then the small states
would profit. Once again, the delegates must take into consideration the old
differences, imaginary rather than real, between the large states and the
small. Finally, the right of choice, in case the electoral vote was not
conclusive, was transferred to the House, where, however, the votes must be
taken by states, the representatives from each state having one vote. Thus the
undue influence of the Senate was avoided and the small states retained their
share of power.
When the engrossed copy of the Constitution had been read, Franklin, the
weather-beaten statesman who had been interested for thirty years and more in
an effective union, offered a speech which was read by Wilson. Confessing his
disapproval of several parts of the Constitution, he was not sure he never
should approve them. "... the older I grow," he said, "the more apt I am to
doubt my own judgment, and to pay more respect to the judgment of others." And
he told of "a certain french lady, who in a dispute with her sister, said 'I
don't know how it happens, Sister but I meet with no body but myself, that's
always in the right' — II n'y a que moi qui a toujours raison."
Evidently the Convention had some prospects of ending its days in an atmosphere
of humor. Franklin then moved that the Constitution be signed by the members,
and offered as a convenient form of statement: " 'Done in Convention, by the
unanimous consent of the States present....' " "This ambiguous form had
been drawn up by Mr. Gouverneur Morris in order to gain the dissenting members,
and put into the hands of Doctor Franklin that it might have the better chance
of success." [60]
Probably no one found every portion of the Constitution to his liking;
but the work was finished, the result of patient toil and amicable
accommodation. Refusal to accept the document with hopes for the future could
mean nothing but folly; the choice lay between the hopeful chance of a national
system and reversion to a confusion which might be little less than
disaster.[61] Of the fifty-five delegates who had taken part in the
Convention, thirty-nine signed the finished instrument; three, Mason, Gerry,
and Randolph refused to sign. Martin left a few days before the end of the
Convention and did not sign. Of the remaining twelve regular members who were
not in attendance at the end and did not sign, seven are known to have approved
and three are known to have disapproved of the Constitution.[62]
The Constitution was turned over to Washington to be sent to the
Congress, with recommendations that it be submitted to the states. A letter to
Congress was prepared by the Convention: "the consolidation of our Union," the
letter declared, "the greatest interest of every true American," had been kept
steadily in view and the Constitution was "the result of a spirit of amity...."
There is in the letter one especially significant statement: "It is obviously
impracticable in the foederal government of these States, to secure all rights
of independent sovereignty to each, and yet provide for the interest and safety
of all — Individuals entering into society, must give up a share of
liberty to preserve the rest." In other words, the old philosophy of natural
rights and of contract was here made to apply to the organization of the new
system; the sovereignty of the states was to be diminished; a portion was to be
surrendered.[63]
The federal state which these men succeeded in formulating had the
following salient features: (1) sovereign powers were distributed between the
states and the national government; (2) the national government had only the
powers granted it explicitly or by implication; the states individually
retained the residue; (3) each government within its sphere of authority
operated immediately over the individual citizen; (4) neither government was to
be inferior to the other or in ordinary operation to come into contact with the
other; (5) the constitutional system was established as law enforceable in
courts and was superior to the authority of every state acting either through
its government or by convention of its citizens; (6) the national government
recognized and made applicable the principle of the separation of powers with
certain modifications.
When we remember that the Convention met before the shadow of the Shays
rebellion had been lifted, and that conservatives had been distressed by the
tribulations of the Confederate period, the liberality of the Constitution and
the broad-mindedness of the delegates are particularly impressive. There was no
decision to limit the suffrage or to prescribe property or religious
qualifications for office. In these respects the delegates were more liberal
than the makers of the state constitutions ten years before. Many of the
members appear to have been holders of public securities; [64] but
had they been penniless, they could scarcely have shown less interest in the
obligation of the new government to pay the debts of the old — unless they
had been quite without respect for public faith. An amendment declaring that
the legislature "'[] fulfil the engagements and discharge the debts of the
United States,' " was objected to by Butler, "lest it compel payment as well to
the Blood-suckers who had speculated on the distresses of others, as to those
who had fought and bled for their country." Mason objected to the term "
'shall'" as too strong, declaring "There was a great distinction between
original creditors and those who purchased fraudulently of the ignorant and
distressed." Randolph moved that " 'All debts contracted and engagements
entered into, by or under the authority of Congress shall be as valid against
the United States under this constitution as under the Confederation' ". The
motion was adopted by a vote of ten to one, Pennsylvania alone voting in the
negative.[65]
Two provisions in the Constitution were, in a way, directed toward the
protection of property: no state shall emit bills of credit, and no state shall
pass a law impairing the obligation of contracts. Both of these prohibitions
resulted from the experiences of the Confederate period. Forty years later,
John Marshall, who had lived through the critical years and had taken great
interest in the adoption of the Constitution, said of the impairment of
contracts: "The mischief had become so great, so alarming, as not only to
impair commercial intercourse, and threaten the existence of credit, but to sap
the morals of the people, and destroy the sanctity of private faith."
[66]
Some of the delegates feared the rise of classes or, indeed, believed
the stratification of society to be inevitable. Gouverneur Morris was ready on
all occasions to inculcate the political depravity of men, and he pointed to
the necessity of checking one vice or interest by an opposing vice or
interest.[67] Madison, himself, though impatient with the cynicism
of Morris, feared lest in the long run, as the numbers of the unpropertied
classes increased, they might combine to endanger property and public liberty,
or would become the tools of opulence and ambition. But, though the members of
the Convention were rich men according to the standards of the time, there was
practically no inclination to give special protection to wealth. There was not
then, it is true, confidence in the wisdom of the common people (the confidence
characteristic of the professed democracy of the next century); but on the
other hand, the grievous influences of the rich and the rise of a plutocratic
aristocracy were especially feared.[68] The men of those days
believed in liberty; liberty and property were not considered mutually opposed.
We may have forgotten for how many decades the word "liberty" was the chosen
symbol of American life. A government with powers of ruthless interference with
property would not have been considered a government to be endured by a free
people.
Liberty was to be assured by a government so checked and balanced as to
curb the sway of malign influences and to prevent the exercise of tyrannical
authority. Just how much the delegates were affected by writings of John Adams,
the supreme advocate of checks and balances, we do not know. But the desire of
men, realizing as these men did the need of an effective national government,
was to have a government so organized as to make liberty secure and to make
difficult or impossible the despotism of faction or of
passion.[69]
But on the whole the Convention was not ruled by abstract theories
— doctrines quite abstracted from the teachings of history and from the
facts well-known to the Convention's members. References to the ancient world
were occasionally indulged in; lessons from the failures of other nations were
mentioned; the fundamental principles of constitutional rights and the elements
of English liberty were in the minds of the men who made the Constitution. That
generation, of which these men were the flower, had been steeped in the
discussion of political principles and had been engaged in the actual
construction of governments and constitutions. The greatest single teacher was
experience, and the state constitutions were the chief source of governmental
forms. The framers were now giving institutional reality to the ideas which the
course of colonial history, the practices of the old empire, their own struggle
for independence, and their earlier attempts to establish union had inculcated.
All through the Revolutionary struggle, until the Revolution was made complete
by the adoption of the Constitution, the men of that generation — though
some engaged in the vaporings of self-created philosophy — did not bring
many absolutely new ideas to birth. They were in fact tremendous realists. Had
they set forth to create a new system free from the shackles of history, they
must have failed. To call into being a constitutional system which has lasted
for over a century, a system which has withstood perplexing diversities and
conflicting sectional interests, the development of democracy, the increase of
population from four million to thirty times that number, is a notable
achievement.
[1] This number includes those who declined to serve and the
substitutes who in some cases took their places. Records of the Federal
Convention (Max Farrand, ed.; hereafter referred to as Farrand,
Records), III, p. 557 ff. See also J. F. Jameson, "Studies in the
History of the Federal Convention of 1787," Am. Hist. Asso. Report for
1902, I, p. 157 and note a. Charles Warren, The Making of the
Constitution, p. 55, gives the following details: thirty-nine of the
delegates had served in Congress; eight had signed the Declaration of
Independence; eight had helped to form state constitutions; five had been
members of the Annapolis convention; seven had been chief executives of their
states; twenty-one had fought in the Revolution.
[2] Of special value on this subject is Max Farrand, "George
Washington in the Federal Convention," Yale Review, XVI, p. 280 ff.
[3] March 19 (18?), 1787. Madison, Writings (Gaillard
Hunt, ed.), II, p. 326.
[4] See letter to Edmund Randolph, April 8, 1787, in
Ibid., II, p. 336 ff.; letter to Washington, April 16, 1787, in
Ibid., II, p. 344 ff.
[5] See Warren, op. cit., pp. 687-688; Max Farrand,
The Framing of the Constitution, p. 181.
[6] Warren, op. cit., p. 339.
[7] Letter to James Duane, September 3, 1780, in Alexander
Hamilton, Works (J. C. Hamilton, ed.), I, p. 157.
[8] July 4, 1782. See Ibid., II, p. 201.
[9] Warren says, "Ten men stand out as chiefly responsible
for the form which the Constitution finally took — Madison, Randolph,
Franklin, Wilson, Gouverneur Morris, King, Rutledge, Charles Pinckney,
Ellsworth, and Sherman." Warren, op. cit., p. 57. Probably this is as
good a selection as anyone can make, though it necessarily ignores valuable
work by others. Franklin's work was rather that of peacemaker than of
contributor to the actual structure of the Constitution. Randolph did some
effective speaking, at first appeared as a leader, but finally refused to sign.
Furthermore, the list leaves out Washington. Farrand, The Framing of the
Constitution, gives a brief sketch of the members, p. 14 ff.
[10] Gouverneur Morris made 173 speeches; Wilson, 168;
Madison, 161; Sherman, 138; Mason, 136; Gerry, 119. See Warren, op.
cit., p. 125. On a good many occasions the votes of one or more states were
divided. "There were twenty-three occasions when, had there been no divided
vote, the result of the vote might have been altered." Maryland's vote was
evenly divided twenty-seven times.
[11] "On the arrival of the Virginia Deputies at Philadelphia
it occurred to them that from the early and prominent part taken by that State
in bringing about the Convention some initiative step might be expected from
them. The Resolutions introduced by Governor Randolph were the result of a
Consolidation on the subject...." "James Madison: Preface to Debates in the
Convention of 1787," in Farrand, Records, III, p. 549. See also
Randolph's remarks, May 29. To facilitate reading, the writer has taken the
liberty to spell out abbreviations, to modernize certain eighteenth-century
spellings, and to omit certain parentheses which appear in the Farrand edition
of the Records.
[12] The Records of the Federal Convention, in three
volumes, edited by Max Farrand, contain practically all available sources for
the study of the Convention's proceedings. The volumes contain not only
Madison's Notes and the others mentioned above, but also statements made
in later years by men who had been members of the Convention. Some day,
possibly, further notes may come to light, but this collection is practically
definitive and is rendered more valuable by the critical scholarship of the
editor. There are various other editions of Madison's Notes, sometimes
improperly called Madison's Journal. (The word Notes is put in
italics for convenience, not as a book title.) References to the notes will be
cited: Madison's Notes (with the date and without specific page
references).
[13] See letter from Madison to Noah Webster, October 12,
1804, in Farrand, Records, III, p. 409.
[14] J. F. Jameson, in his "Studies in the History of the
Federal Convention of 1787," loc. cit., not only demolishes the
pseudo-Pinckney plan, but by very clever and scholarly work brings out from the
study of the debates in the Convention fairly clear indication of what the real
plan was. A paper which he found among the Wilson papers proved to be a portion
of the real plan and seems to demonstrate that it was elaborate. The author of
this volume, relying on the substantial character of Jameson's work, found what
is evidently an outline of the original plan. This outline is printed in Am.
Hist. Rev., IX, pp. 735-747, with notes and comments. A "reconstructed"
plan, based on the outline and on other sources, is to be found in Farrand,
Records, III, p. 604 ff.
[15] According to McHenry, Hamilton had said, before the
close of the previous session (May 29), that it struck him as a necessary and
proper preliminary to inquire whether the United States "were susceptible of
one government, or required a separate existence connected only by leagues
offensive and defensive and treaties of commerce." See Farrand, Records,
I, p. 27. There is no reference in the journal or in Madison's Notes
that Hamilton made any such statement in the open Convention, and it seems
likely that it was not made during formal proceedings. The incisive young
statesman from New York evidently wished to cut the main problem to the heart
and to perform the operation at once. So now it was determined to test the
sense of the whole body as to whether or not a mere league of sovereignties was
sufficient.
[16] For some indication of the reason for not taking action
on the first two resolutions, see Ibid., I, p. 39.
[17] At a much later time Gouverneur Morris stated the
problem thus: "there was a serious discussion on the importance of arranging a
national system of sufficient strength to operate, in despite of State
opposition, and yet not strong enough to break down State authority." Morris to
W. H. Wells, February 24, 1815, in Ibid., III, p. 421.
[18] The significance of the opposition of the small states,
which is to be considered more fully in later pages, is thus stated in the text
above because it seems possible to overemphasize the idea that the small states
were influenced only by their desire to conserve their complete sovereignty.
The subject of sovereignty was discussed and the discussion was connected with
the question of representation — for if sovereignty necessarily included
equality, the states could not surrender equality of representation without
diminishing their sovereignty. But there were differences among the delegates
from the small states. Some of them were insistent upon the retention of the
complete sovereignty of the states. Others appear to have objected to the
abandonment of complete equality of representation in Congress, not so much
because inequality indicated the surrender of sovereignty as because inequality
lowered the prestige of the states. Of course, as we have indicated, the old
jealousies were still active; the small states feared the strength of their
powerful neighbors.
[19] At a later day (July 23) Madison pointed out "the
difference between a system founded on the Legislatures only, and one founded
on the people, to be the true difference between a league or
treaty, and a Constitution."
[20] The journal omits Pennsylvania, but see Madison's
Notes, June 12.
[21] Madison's Notes, June 2, 6, 7. For Sherman's
opinion, see his speech at the opening of the session of June 11. Farrand,
Records, I, p. 196.
[22] Madison in a footnote, added probably at a much later
time to his notes taken in the Convention, says, "Connecticut and New York were
against a departure from the principle of the Confederation, wishing rather to
add a few new powers to Congress than to substitute, a National Government."
This does not appear to be a proper statement of the Connecticut position,
unless in the earlier days, and especially May 30 when, as we have seen, on the
resolution to establish a national government, Connecticut voted in the
negative and New York was divided, the six other states voting in the
affirmative.
[23] That Martin participated appears to be highly probable;
first, because of the significance of the sixth resolution, which contained a
principle he later proposed to the Convention in almost the same identical
words; second, because he was a truculent, or at least an aggressive and
unrelenting, advocate of state sovereignty.
[24] A footnote by Madison, placed under the date of June
15.
[25] In committee of the whole, June 2.
[26] Madison's Notes, June 9.
[27] "One reason why the Connecticut delegates disliked
ratification by Conventions was that, in that State, a Convention had assembled
at Middletown in December, 1783, which had violently opposed the votes of
Congress as to commutation of pay for officers of the Continental army —
and other subjects, and the action of this Convention had caused considerable
disturbance in other States." Warren, op. cit., p. 348, note 1. Of
course, the impressive fact is not the hesitation among some members to refer
their work to the people, but the readiness to rely upon popular decision, and
the necessity, for legal and constitutional reasons, to obtain basic authority
for the Constitution.
[28] Madison's Notes, June 21. See in addition
Johnson's brief statement, June 25, and especially his words on June 29, when,
with other pronouncements of a similar character, he said: "Does it not seem to
follow, that if the States as such are to exist they must be armed with some
power of self-defence.... On the whole he thought that as in some respects the
States are to be considered in their political capacity, and in others as
districts of individual citizens, the two ideas embraced on different sides,
instead of being opposed to each other, ought to be combined; that in
one branch the people, ought to be represented; in the
other, the States."
[29] "Attended on May 18; left Convention June 29; was in New
York after July 2; appears to have been in Philadelphia on July 13; attended
Convention August 13; was in New York August 2O-September 2." Farrand,
Records, III, p. 588.
[30] It is very interesting to notice that Read of Delaware,
who had pointed out that the instructions of the Delaware delegates precluded
their accepting anything but equal representation, advocated nationalism and
even expressed approval of Hamilton's plan of centralization. See Madison's
Notes, June 6, June 11, June 29. He "wished it to be considered by the
small States that it was their interest that we should become one people as
much as possible...." Ibid., June 26.
[31] Compare Madison in The Federalist, no. XXXIX.
Bancroft speaks of this arrangement — proportional representation in one
branch, equal representation in the other — as the "Connecticut
compromise". The propriety of the appellation has been questioned, but much is
to be said for it. It is true the idea was not confined in its inception or in
the course of discussion to the Connecticut men. But that they saw the
situation, were not afraid of effective government provided it did not crush
the states, and were largely influential in bringing about the conclusion they
desired, seems unquestionable.
[32] Massachusetts, Pennsylvania, Virginia, North Carolina,
and South Carolina voted against equal representation. Connecticut, New York,
New Jersey, Delaware, and Maryland voted for equal representation.
[33] Martin, reporting to the Maryland legislature, said,
"Immediately after the question had been taken, and the President had declared
the votes, Mr. Jenifer came into the convention, when Mr. King, from
Massachusetts, valuing himself on Mr. Jenifer to divide the State of Maryland
on this question, as he had on the former, requested of the President that the
question might be put again; however, the motion was too extraordinary in its
nature to meet with success." See Farrand, Records, III, p. 188
note.
[34] Farrand, Records, III, pp. 244-247. Warren justly
calls our attention to various contents of the Constitution as it was at the
time of the compromise, and says: "... the small States were entirely right in
believing that no such form of Government as the Nationalists, at that stage in
the Convention, were supporting would ever be accepted by the people of the
States...." Warren, op. cit., p. 310. But we should notice that he is
speaking of the fact that, as it then stood, the Constitution gave large and
undefined power to the national legislature, including the right to veto state
laws. He does not declare that the principle of nationalism, under properly
guarded assignment of governmental authority, would have defeated the
Constitution.
[35] George Bancroft, History of the Formation of the
Constitution of the United States, II, p. 88.
[36] It is interesting and important to notice, in light of
the supremely important controversy concerning the nature of the union in the
decades ahead and the ending in civil war, that Luther Martin advocated a
clause declaring that no act done by one or more states against the United
States or by any citizen of any one of the United States under the authority of
any one or more states should be deemed treason or punished as such; " 'but, in
case of war being levied by one or more of the States against the United
States, the conduct of each party towards the other, and their adherents
respectively, shall be regulated by the laws of war and of
nations.'" Martin reported to his legislature that this proposal was
"opposed to the great object of many of the leading members of the convention,
which was, by all means to leave the States at the mercy of the
general government, since they could not succeed in their
immediate and entire abolition." See Farrand, Records,
III, p. 223.
[37] See also Madison's statement (June 19) where he pointed
out that "in a federal Government [as distinguished from a national
government], the power was exercised not on the people individually; but on the
people collectively, on the States."
[38] June 25. Farrand, Records, I, p. 406. Very early
in the debates (May 30) Sherman had "admitted also that the General and
particular jurisdictions ought in no case to be concurrent." See Ibid.,
I, pp. 34-35.
[39] "Resolved That the Legislature of the United States
ought to possess the legislative Rights vested in Congress by the
Confederation; and moreover to legislate in all Cases for the general Interests
of the Union, and also in those Cases to which the States are separately
incompetent, or in which the Harmony of the United States may be interrupted by
the Exercise of individual Legislation." Ibid., II, pp. 131-132.
[40] Reference has been made in an earlier chapter to the
structure of the old empire which in its actual practices foreshadowed the
structure of the federal organization of the American union.
[41] This committee was composed of Rutledge of South
Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of
Connecticut, and Wilson of Pennsylvania. Working on the task of framing the
submitted resolutions into a constitution, they arranged the materials into
articles and sections, and presented the results of careful organization. To
the committee had been referred not only the resolutions adopted by the
Convention but the Pinckney and Paterson plans. At the end of ten days they
made their report, and this — which was in the form of a constitution
— was then discussed item by item for about six weeks by the
Convention.
[42] In comment on the Paterson plan, Mason said (June 20):
"The most jarring elements of nature; fire and water themselves are not more
incompatible that [sic] such a mixture of civil liberty and military
execution. Will the militia march from one State to another, in order to
collect the arrears of taxes from the delinquent members of the Republic? ...
Rebellion is the only case in which the military force of the State can be
properly exerted against its Citizens." Farrand, Records, I, pp.
339-340.
[43] Soon after the Convention adjourned Madison wrote to
Jefferson: "It was generally agreed that the objects of the Union could not be
secured by any system founded on the principle of a confederation of Sovereign
States. A voluntary observance of the federal law by all the members
could never be hoped for. A compulsive one could evidently never be
reduced to practice, and if it could, involved equal calamities to the innocent
& the guilty, the necessity of a military force both obnoxious &
dangerous, and in general a scene resembling much more a civil war than the
administration of a regular Government. Hence was embraced the alternative of a
Government which instead of operating, on the States, should operate without
their intervention on the individuals composing them; and hence the change in
the principle and proportion of representation." October 24, 1787. Madison,
Writings (Gaillard Hunt, ed.), V, p. 19. Ellsworth, addressing the
Connecticut convention, said: "Hence we see how necessary for the Union is a
coercive principle. No man pretends the contrary: we all see and feel this
necessity. The only question is, Shall it be a coercion of law, or a coercion
of arms? [Hamilton had used the same expression in the Convention at
Philadelphia, June 18] ... I am for coercion by law — that coercion which
acts only upon delinquent individuals." Elliot, Debates, II, p. 197.
[44] "The other clauses giving powers necessary to preserve
harmony among the States to negative all State laws contravening in the opinion
of the National Legislature the articles of Union down to the last clause, the
words 'or any treaties subsisting under the authority of the Union', being
added after the words 'contravening &c. the articles of the Union'; on
motion of Doctor Franklin, were agreed to without debate or dissent." Farrand,
Records, I, p. 54. The wording of this leaves it uncertain whether the
provision concerning treaties was in the original Randolph plan or not.
Probably it was not.
[45] Of course such a resolution was quite out of place in
the Paterson plan with its principle of maintaining the Confederation. Its
presence there is an evidence of the hurried preparation of the plan, and
impressive evidence also of how fully it was recognized that the states must be
held to their obligations. But how could the , idea of state sovereignty be
reconciled with an arrangement which authorized the central government to make
"supreme law of the respective States"? Possibly the super-astute mind can
conceive such a reconciliation. But the resolution, at all events, would make
of the Confederation, if it remained a Confederation, a strange and rather
anomalous one. Calhoun, in his most competent days, could, probably, show the
consistency between state sovereignty and law binding on state judges; the even
stronger provisions of the Constitution did not prove insuperable for him. Why
Martin should have favored the resolution as a special child of his own, we do
not know. He was a very able lawyer. Looking about for a principle which would
counteract the weakness of a union of sovereignties, perhaps he instinctively
turned to courts.
[46] An extended examination of this question is ably made by
C. A. Beard, The Supreme Court and the Constitution.
[47] It is impossible here to discuss in detail the origin of
this idea, so critically significant; all great ideas have a long history in
their growth to maturity. We should, however, be at a loss in any endeavor to
discover the origin of the idea that courts might declare an act void unless we
appreciate the philosophy of the Revolution and, indeed, of history preceding.
Central in that philosophy and in the practical politics of the Revolution was
the principle that a government transcending its assigned powers acts
illegally.
[48] See Madison's Notes, July 11. See also July
5.
[49] It is interesting to notice that while the subject was
under discussion, the old decrepit Congress at New York was engaged in enacting
the Ordinance of 1787 (July 13), which provided for equality of the new states
of the old northwest when they should be admitted into the union. Randolph
remarked in the Convention (July 11): "Congress have pledged the public faith
to New States, that they shall be admitted on equal terms." This reference was,
of course, to the resolution of Congress passed seven years before.
[50] In this connection it should be noted that the western
question was involved in the whole difficult problem of determining the basis
of representation. "The majority of people", said Wilson, "wherever found ought
in all questions to govern the minority. If the interior Country should acquire
this majority they will not only have the right, but will avail themselves of
it whether we will or no. This jealousy misled the policy of Great Britain with
regard to America.... Again he could not agree that property was the sole or
the primary object of Government and Society. The cultivation and improvement
of the human mind was the most noble object." A vote passed at one time to take
as a basis both wealth and population was finally changed by striking out
"wealth". The question to strike out "wealth" was adopted with
practical unanimity — nine states voted in the affirmative, Delaware
divided (July 13).
[51] The whole subject of the expansion of the union was
complex and perplexing. Vermont was likely to be admitted ere long.
Furthermore, the problem of admitting as new states certain portions of the old
states made a statement of general principles difficult. For the conclusion see
Constitution, Art. IV, sec. 3, para. I.
[52] The chapter in this work on the Missouri Compromise
discusses this subject. See Max Farrand, "Compromises of the Constitution,"
Am. Hist. Rev., IX, p. 479 ff.; Warren, op. cit., p. 595 ff.
[53] "Mr. Mason could not agree to the motion [to strike out
the words "three fifths" and therefore count all the slaves],
notwithstanding it was favorable to Virginia because he thought it unjust. It
was certain that the slaves were valuable, as they raised the value of land,
increased the exports and imports, and of course the revenue, would supply the
means of feeding and supporting an army, and might in cases of emergency become
themselves soldiers.... He could not however regard them as equal to freemen
and could not vote for them as such." "Dr. Johnson, thought that wealth and
population were the true, equitable rule of representation; but he conceived
that these two principles resolved themselves into one; population being the
best measure of wealth. He concluded therefore that the number of people ought
to be established as the rule, and that all descriptions including blacks
equally with the whites, ought to fall within the computation." Farrand,
Records, I, pp. 581, 593. Professor Farrand is quite right in pointing
out that the whole subject of slavery did not occupy as much attention in the
Convention as was later ascribed to it. He objects to calling the adoption of
the three-fifths rule a compromise at all. See Farrand, The Framing of the
Constitution, pp. 107-108; Farrand, "Compromises of the Constitution,"
Am. Hist. Rev., IX, pp. 479-481. This contention is based partly on the
fact that the proportion had been proposed before that time and even before the
Convention met. Moreover, the discussion arose in connection with the great
compromise, the report of the committee of July 5; the counting of slaves as
the basis of representation did not form the most critical problem under
discussion. Though of considerable importance in later days, in the course of
the Convention it was one of the minor adjustments. There seems no doubt,
however, that Morris's proposal smoothed the troubled waters. "The purpose of
this provision [connecting direct taxation with representation] was to lessen
the inducement to the Southern States to seek to increase their representation;
since, by so doing, they would proportionally increase their share of the tax
burdens. It is important to note, however, that Morris and some other delegates
from the North were actuated quite as much by their fears of conditions which
might arise in the West, as by their anxiety over the South." Warren, op.
cit., p. 290.
[54] For obvious reasons the states were later also forbidden
to levy duties on exports without the consent of Congress. For a full statement
see Constitution, Art. I, sec. 10, para. 2.
[55] Mason "lamented that some of our Eastern brethren had
from a lust of gain embarked in this nefarious traffic." It may be that such
New Englanders as were willing to allow the slave-trade to continue, because of
the demand of the far south were influenced by the interest of their section in
the trade. Their very distance from the plantation region probably influenced
them. Ellsworth said, "As population increases; poor laborers will be so plenty
as to render slaves useless. Slavery in time will not be a speck in our
Country." August 22. See also Sherman's remarks, August 22.
[56] The position of Maryland is uncertain though the vote
was cast for allowing the importation during the period. Martin had earlier
opposed importation as "dishonorable to the American character...."
[57] Probably North Carolina should be added to South
Carolina and Georgia. The opposition of the North Carolina delegates appears,
however, to have been directed against complete restriction. North Carolina's
position can be seen, though only indistinctly, from remarks by Williamson,
August 22 and 25. See also remarks by Morris and Mason, August 25, and by
Rutledge, August 22.
[58] And still, he thought the southern states, if left to
themselves, would probably stop the importation of slaves. He, as a citizen of
South Carolina, would vote for it. Madison's Notes, August 22.
[59] "On twenty-one different days this subject was brought
up in the Convention. Over thirty distinct votes were taken upon different
phases of the method of election. Five times they voted in favor of appointment
by the national legislature, and once against it. Once they voted for a system
of electors chosen by the state legislatures, and twice they voted against such
a system. Three times they voted to reconsider the whole question." Farrand,
"Compromises of the Constitution," loc. cit., pp. 486-487.
[60] At least one member, Blount, was willing to sign under
the terms proposed; he would attest the fact that the Constitution was "the
unanimous act of the States", but he would not pledge his own support.
[61] Hamilton asked: "is it possible to deliberate between
anarchy and Convulsion on one side, and the chance of good to be expected from
the plan on the other." Gouverneur Morris said, "The moment this plan goes
forth all other considerations will be laid aside — and the great question
will be, shall there be a national Government or not?"
[62] Jameson, "Studies in the History of the Federal
Convention of 1787," loc. cit., p. 157. Dickinson was absent, but at his
request his name was put down by his colleague, Read. Farrand, Records,
III, p. 81.
[63] The toil and trouble were passed. Washington's own words
from his diary are of interest:
"Monday — 17th.
Met in Convention when the Constitution received the unanimous assent of
11 States and Colonel Hamilton's from New York (the only delegate from thence
in Convention) and was subscribed to by every Member present except Governor
Randolph and Colonel Mason from Virginia — and Mr. Gerry from
Massachusetts. The business being thus closed, the Members adjourned to the
City Tavern, dined together and took a cordial leave of each other. —
after which I returned to my lodgings — did some business with, and
received the papers from the secretary of the Convention, and retired to
meditate on the momentous work which had been executed, after not less than
five, for a large part of the time six, and sometimes 7 hours sitting every
day, Sundays and the ten days adjournment to give a Committee opportunity and
time to arrange the business for more than four months." Farrand,
Records, III, p. 81.
[64] I say "appear", because, though Professor C. A. Beard in
his An Economic Interpretation of the Constitution, a product of
toilsome research, has shown that a large number of the delegates presented
bonds in 1791, in accordance with Hamilton's funding plan, we cannot be
entirely certain that these men owned the certificates in 1787. Furthermore, it
is more than likely that in some cases the former members of the Convention
acted, when they presented their certificates, as agents of other persons. An
incomplete examination of the data, carried on at my suggestion by the
Department of Historical Research of the Carnegie Institution at Washington,
appears to justify this statement. A number of the more influential delegates
presented no certificates in 1791. The fact remains that many of the delegates
in all probability were creditors of the states and of the Congress.
[65] The Constitution says "All debts contracted and
engagements entered into before the adoption of this Constitution shall be as
valid against the United States under this Constitution as under the
Confederation." Art. VI, para. I. This statement leaves out the words " 'under
the authority of Congress' " of the Randolph resolution, and may indicate a
purpose to allow the assumption of state debts.
[66] Dissenting opinion in Ogden v. Saunders, 12
Wheaton 213, 355 (1827).
[67] Morris's philosophy is illustrated by his speech on July
2; see also, his remarks on August 7. He said on July 6: "As to the alarm
sounded, of an aristocracy, his creed was that there never was, nor ever will
be a civilized Society without an Aristocracy. His endeavor was to keep it as
much as possible from doing mischief." Note Madison's comments, August 7 and
10. Madison in general desired proper protection for minorities. Mason's
position is stated August 8 and 14 and September 15; Gerry's, August 14;
Williamson's, September 5; Randolph's, September 5; Wilson's, September 6.
[68] Various announcements indicate this. Dickinson "doubted
the policy of interweaving into a Republican constitution a veneration for
wealth. He had always understood that a veneration for poverty and virtue, were
the objects of republican encouragement." Franklin declared, "Some of the
greatest rogues he was ever acquainted with, were the richest rogues."
[69] For Adams's philosophy, see his Defence of the
Constitutions of Government of the United States; "Three Letters to Roger
Sherman, on the Constitution of the United States," Works (C. F. Adams,
ed.), VI, p. 427 ff. See especially C. M. Walsh, The Political Science of
John Adams.
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