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The Great Republic by the Master Historians
The Making of the Constitution
by Bancroft, Hubert H.
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[The Articles of Confederation of the United States of America were finally
ratified on the Ist of March, 1781, and announced to the public amid discharges
of cannon on land and from the vessels in the Delaware, conspicuous among which
was the Ariel frigate, Paul Jones commanding. Yet the Articles were scarcely
confirmed, amid panegyrics both at home and abroad upon the government thus
instituted, when they proved lamentably insufficient. Powers which had been
before exercised by Congress were taken from it by the Articles,--particularly
the control of commerce. Congress could obtain a revenue only by requisitions
upon the States; it had no common executive, no machinery by which to enforce
its decrees, and formed rather a consulting body than a governmental power.
Yet the Confederacy had its merits. It settled the long dispute between
Connecticut and Pennsylvania,--One of the few instances of the adjustment of
quarrels between independent States by an arbitrating body. It met the pressing
needs of the time, and served as an educational institution whose defects were
lessons of the utmost value to the statesmen of America. It soon became
generally felt that a change was necessary. Adams, Hamilton, Washington, and
others deplored the weakness of Congress. A bill was passed recommending the
States to lay an impost of five per cent. on imported goods. Some States acceded
to this measure; others failed to do so. Madison, consequently, urged "the
necessity of arming Congress with coercive powers," in order to force the
delinquent States to do their duty.
The conclusion of the war, and the establishment of peaceful relations between
the United States and England, made the need of a revision of the governmental
organization yet more clearly evident. Robert Morris wrote, "The necessity of
strengthening our Confederacy, providing for our debts, and forming some federal
constitution, begins to be most seriously felt." Great Britain adopted measures
calculated to create disunion between the States, endeavoring to treat with them
as individuals. The war was succeeded by a commercial conflict, in which the
recent enemy of the States sought in every way to restrict and hamper their
commerce, adopting measures which the Confederacy proved inadequate to combat.
It had become strikingly evident that a stronger government must be organized,
and the legislators of the country applied themselves to the task. Most
prominent among these advocates of a change of government were Hamilton and
Madison. These two men, both of them of unusual intellectual ability and
thorough education in statesmanship, radically differed in views. Hamilton
supported the aristocratic sentiment, distrusted the capacity of the people for
self-government, and tended towards the formation of a vigorously centralized
nation. Madison held opposite opinions, and advocated democratic doctrines.
Minor differences of opinion existed. Franklin held to his long-entertained view
of a single legislative body. Richard Henry Lee objected to giving Congress the
power to regulate commerce. Madison proposed to give Congress authority to veto
State laws. He was also the first to propose a government for the Union acting
upon individuals instead of upon States. Washington took an active part in these
expressions of opinion, and wisely remarked, "I do not conceive we can exist
long as a nation without having lodged somewhere a power that will pervade the
whole Union in as energetic a manner as the authority of the State governments
extends over the several States." The succeeding events, which resulted in the
formation and adoption of the Constitution of the United States, are admirably
described in Frothingham's "Rise of the Republic of the United States," from
which work we select a digest of this highly important legislative proceeding.]
The method of obtaining an American Constitution through a representative
convention was historical, and was suggested when the idea was to form a union
that should be consistent with allegiance to the crown. It was renewed in the
speculations on independence, and in "Common Sense," in 1776. When the aim was
to reform the Confederation, a convention was suggested by Hamilton in 1780; by
Pelatiah Webster in 1781; by the New York legislature in 1782; was named in
Congress by Hamilton in 1783; was proposed by Richard Henry Lee in a letter in
1784; and was recommended by Governor Bowdoin in a speech to the Massachusetts
legislature in 1785. No action, however, grew out of these suggestions. In 1786,
the Assembly of Virginia, under the lead of Madison, appointed commissioners to
meet in convention and consider the question of commerce, with the view of
altering the Articles of Confederation; and it was made the duty of this
committee to invite all the States to concur in the measure.
[The convention met at Annapolis, with delegates from five States, on September
II, 1786. The representation was so partial that no action was taken, other than
to urge the appointment of commissioners from all the States, to meet in
Philadelphia, on the second Monday of the next May, to consider such measures as
were necessary' to adapt the Federal Constitution to the exigencies of the
Union.]
In the mean time, national affairs grew worse. To the chronic neglect to comply
with the requisitions of Congress, the New Jersey legislature added positive
refusal by an act of legislation. The legislatures of States having ports for
foreign commerce taxed the people of other States trading through them; others
taxed imports from sister States; in other instances the navigation-laws treated
the people of other States as aliens. The authority of Congress was disregarded
by violating not only the treaty of Paris, but treaties with France and
Holland..
This was the period of "Shays' Rebellion" in Massachusetts, in which the spirit
and example of disobedience to law, exhibited for years by the local
legislatures, broke out among a people. It created a profound impression. At
home it seemed a herald of approaching anarchy; abroad it exalted the hopes of
monarchists and was regarded as the knell of republicanism. The treason was
easily subdued by a military force, under General Lincoln, called out by
Governor Bowdoin. It was the first rising in arms against a government
established by the people in this State, and thus far has proved the last. It
had the effect to ripen the public mind for a general government.
[Immediately after this event (November 9, 1786), Virginia appointed
commissioners to the projected convention. Other States quickly followed, all
the States electing delegates except Rhode Island.]
The delegates elect were summoned to meet in Philadelphia on the fourteenth day
of May [1787], in Independence Hall; but, a majority of the States not being
then represented, those present adjourned from day to day until the twenty-
fifth. They then organized into a convention, should appoint the governor of
each State, who should have a negative on the laws to be passed by the
legislature. This plan was not acted on. On the 19th of June the committee of
the whole reported to the House that they did not assent to the resolutions
offered by the Hon. Mr. Patterson, but submitted again the nineteen resolutions
before reported. The first was, "That it is the opinion of this committee that a
National Government ought to be established, consisting of a supreme
legislature, judiciary, and executive."
This determination to frame a new government brought face to face in the
Convention the antagonisms of American society: the errors of opinion and rooted
prejudices; the local interests, jealousies, and ambitions of the people of the
several States. The slavery question rose to fearful eminence. It was connected
with the question of representation, or the mode in which the political power
should be distributed. Madison, on the 30th of June, in an elaborate speech,
delineated the great division of interests in the United States, as not being
between the large and the small States, but as arising from their having or not
having slaves. "It lay," he said, "between the Northern and Southern;" and he
went on to show how certain arrangements "would destroy the equilibrium of
interests between the two sections." In this he probed the cause of the passion
that mingled in the debates. The storm was fearful. "I believe," Luther Martin
said, "near a fortnight, perhaps more, was spent in the discussion of this
business, during which we were on the verge of dissolution, scarce held together
by the strength of a hair;" and this is confirmed by a letter from Washington,
who said that he almost despaired of seeing a favorable issue to the
proceedings, and therefore repented of having had any agency in the business.
During this period Franklin made his well-known impressive speech on introducing
a motion that prayers be said in the Convention. In another characteristic
speech, on the wide diversity of opinion, he said that when a broad table is to
be made, and the edges of planks do not fit, the artist takes a little from both
and makes a good joint. In like manner, here, both sides must part with some of
their demands, in order that they may join in some accommodating proposition.
The work of healing commenced when the compromise was agreed to, fixing the
basis of representation by adding to the whole number of free persons, including
those bound to serve for a term of years, and excluding Indians not taxed,
three-fifths of all other persons, and giving to each State one representative
for every forty thousand inhabitants, and to each State an equal vote in the
Senate.
After the adjustment of representation, there remained the difficulty of
discriminating between the two spheres of power, local and general. The proposal
of Hamilton to endow a central government with power to appoint the local
governors met with little, if any, favor. The advocates of the old Articles made
it their chief point to preserve to the States their importance; and Madison,
the foremost advocate of the Virginia plan, said that "he would preserve the
State rights as carefully as the trial by jury." The clear and profound George
Mason said that, "notwithstanding his solicitude to establish a national
government, he never would agree to abolish the State governments, or render
them absolutely insignificant. They were as necessary as the general government,
and he would be equally careful to preserve them. He was aware of the difficulty
of drawing the line between them, but hoped it was not insurmountable." He also
said he was sure "that, though the mind of the people might be unsettled on some
points, yet it was settled in attachment to republican government." Local self-
government, union, and republicanism were as laws inscribed on the tablets of
the American heart; and it was the office of the able men of the Convention to
devise for their wants the letter of a written constitution.
In these discussions the Convention had passed on the nineteen resolutions. On
the 23rd of July it was determined that its proceedings "for the establishment
of a national government," excepting the executive, should be referred to a
committee, for the purpose of reporting the draft of a constitution conformably
to them; and the next day, when five members were reported as this committee,
the propositions submitted by Pinckney and Patterson were also referred to it.
On the 6th of August the committee reported; when another month of debate
followed, during which the clauses relative to the slave-trade and the rendition
of slaves were agreed to,--on which hung mighty issues. They are of the past
now. They were the price that was paid for republican government, an instrument
of vast good in the present and for the future. On the 8th of September a
committee of five was appointed "to revise the style of and arrange the articles
agreed to by the House." This work was intrusted to Gouverneur Morris, and to
him belongs the credit of the simple style and clear arrangement of the
Constitution. The committee reported on the twelfth, when the printing of the
Constitution was ordered. Three days were occupied in revising it, when it was
ordered to be engrossed. It was then read, when Franklin rose with a speech in
his hand, which was read by James Wilson.
"I confess," it begins, "that there are several parts of this Constitution which
I do not at present approve; but I am not sure I shall never approve them. For,
having lived long, I have experienced many instances of being obliged, by better
information or fuller consideration, to change opinions, even on important
subjects, which I once thought right, but found to be otherwise. It is therefore
that, the older I grow, the more apt I am to doubt my own judgment and to pay
more respect to the judgment of others. .
"In these sentiments, sir, I agree to that Constitution, with all its faults, if
they are such, because I think a general government necessary for us, and there
is no form of government but what may be a blessing to the people if well
administered; and believe, further, that this is likely to be well administered
for a course of years, and can only end in despotism, as other forms have done
before it, when the people shall be so corrupted as to need despotic government,
being incapable of any other."
Franklin concluded by moving a form in which the Constitution should be signed
by the members.
[At this point Mr. Gorham, of Massachusetts, proposed to reduce the basis of
representation from forty thousand to thirty thousand persons. This was
sustained by Washington, in the only speech made by him during the Convention.]
When he rose to put the question on the motion of Mr. Gorham, he said,--
"That although his situation had hitherto restrained him from offering his
sentiments on questions depending in the House, and, it might be thought, ought
now to impose silence upon him, yet he could not forbear expressing his wish
that the alteration proposed might take place. It was much to be desired that
the objections to the plan recommended might be made as few as possible. The
smallness of the proportion of representatives had been considered, by many
members of the Convention, an insufficient security for the rights and interests
of the people. He acknowledged that it had always appeared to himself among the
exceptionable parts of the plan; and, late as the present moment was for
admitting amendments, he thought this of so much consequence that it would give
him much satisfaction to see it adopted."
This impressive appeal was followed by a unanimous vote in favor of the motion.
There was then a vote on the question whether the Constitution should be agreed
to as engrossed in order to be signed, and all the States answered aye. There
was then a debate on signing. Hamilton now entered upon the course that reflects
high honor on him as a patriot. He was anxious that every member should sign,
saying, "No man's ideas were more remote from the plan than his own were known
to be; but 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?"
All the members signed the Constitution, excepting Edmund Randolph and George
Mason, of Virginia, and Elbridge Gerry, of Massachusetts. While the last members
were signing, Franklin, the Nestor of the assembly, looking towards the
President's chair, at the back of which a rising sun happened to be painted,
observed to a few members near him that painters had found it difficult to
distinguish in their art a rising from a setting sun. "I have," said he, "often
and often, in the course of the session, and the vicissitudes of my hopes and
fears as to its issue, looked at that behind the President, without being able
to tell whether it was rising or setting; but now, at length, I have the
happiness to know that it is a rising and not a setting sun." The instrument was
attested in the form submitted by him: "Done in Convention, by the unanimous
consent of the States present, the 17th day of September, in the year of our
Lord 1787, and of the Independence of the United States of America the twelfth."
[It was agreed that the Constitution should be transmitted to the governing body
of each State, and when ratified by nine States, Congress should prepare for
commencing proceedings under it. It was immediately circulated, and received
with favor, and even enthusiasm. The secrecy of the Convention had given rise to
unpleasant rumors, which the publication of the instrument set at rest.]
The Constitution was instinctively and joyfully welcomed by farmers, mechanics,
and merchants. Soon, however, the newspapers teemed with the views of men
eminent for ability, honesty, and patriotism, against its adoption; and they won
adherents. Hence the country became divided into two great parties: one, called
the Federalists, composed of those who were in favor of the ratification of the
Constitution; the other, termed anti-Federalists, or those opposed to the
ratification, who could boast among their leaders the great names of George
Clinton and Patrick Henry.
The conflict of opinion was carried on in public meetings, through the press,
and in the representative assemblies, and all these in thought and action were
unfettered. This constituted another great period in American history. It has
been thoroughly explored and ably narrated. In advocating the adoption of the
Constitution, James Wilson made a noble record in the Pennsylvania Convention
and the popular forum, Hamilton and Madison shone in the State conventions and
in the press. Their greatest legacy was their share in the "Eighty-five Essays,"
which appeared in a New York newspaper, under the signature of "Publius." In
this they were associated with Jay, who, however, on account of illness,
contributed only six of the number. These "Essays" were collected in the well-
known volume entitled "The Federalist," which is a classic in American political
literature.
[The Constitution was ratified by conventions in the several States. Its
character may be briefly outlined.]
Union was acknowledged as an already existing fact; and the object of the
Constitution was declared to be to make a more perfect Union. Government is
provided for in a legislature consisting of two branches to make laws, a
judiciary to interpret the law, and an executive power in a President, "to take
care that the laws be faithfully executed." The Senate is based on State
equality, the House on numbers. The powers enumerated which a government, under
this Constitution, might exercise, were, in general, those which throughout the
colonial age were proposed to be vested in a Union,--even the important power of
levying taxes and collecting them, while leaving the local governments to levy
and collect taxes for local purposes, being in Franklin's Albany plan. They
provided for a government to act directly on individuals, instead of a league
acting on States, as in the Articles of Confederation; for influence thus
substituting public authority. The Union was endowed with political power
supreme in its sphere; and though it had no power to make or to abolish the
State governments, "yet," is the great comment of Madison, "if they were
abolished, the General Government would be compelled, by the principle of self-
preservation, to reinstate them in their proper jurisdiction."
The spheres of the two governments, State and National, were defined with much
exactness; but, to determine controversies that might arise between the
boundaries of their powers, it was provided that the judicial authority should
extend to all cases under the Constitution, the laws, and treaties, naming in
the list controversies between two or more States, and that this power should be
vested in a Supreme Court, to be established by Congress.
The laws made in pursuance of these powers, and all the treaties, were "to be
the supreme law of the land," and the judges in every State were "to be bound
thereby, anything in the Constitution or laws of any State to the contrary
notwithstanding;" all officers, "both of the States and of the United States,"
were to bind themselves, "by oath or affirmation," to support this Constitution;
and it was to stand until amended in the form prescribed; the final stage being
that new articles should be ratified by three-fourths of the several States, or
by conventions of three-fourths of the States, or by conventions of three-
fourths of the States, as might be proposed by the Congress; with the proviso
that no State, without its consent, should be deprived of its equal suffrage in
the Senate.
It was provided that the citizens of each State should be entitled to all the
rights of citizens in the several States. The word "slave" is not in the
Constitution; and so peculiar and wise were the provisions, that, when State
after State abolished slavery, no alteration was required to meet the great
social change. Nor would any change have been required had all the States
abolished slavery. Recent amendments prohibit its establishment, as the original
instrument prohibited the States from granting an order of nobility.
Article seventh and last is, "The ratification of the conventions of nine States
shall be sufficient for the establishment of this Constitution between the
States so ratifying the same."
On the 2d of July, 1788, the President of Congress informed that body that he
had laid before them the ratification of the Constitution by the conventions of
nine States. On that day a committee was appointed to report an act "for putting
the said Constitution into operation." It was not, however, until the 13th of
September that Congress agreed upon a plan. . The first Wednesday in March
[1789] was fixed on as the time, and New York as the place, for commencing
proceedings under the Constitution.
Richard Frothingham
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