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A Constitutional History of the United States
Chapter XIV - The Federal Convention I: Determination to Found a National Government
by McLaughlin, Andrew C.


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 co÷peration 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 co÷peration 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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