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The Great Republic by the Master Historians
The Making of the Constitution
by Bancroft, Hubert H.

[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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