REFORMING THE NATIONAL GOVERNMENT
The suggestion, emanating from the unsuccessful gathering at Annapolis,
that a convention of delegates be called from the several States to
meet at Philadelphia the following year to devise means for rendering
the National Government adequate to its task, was supported most
admirably by the condition of the times. The Shays Rebellion in
Massachusetts, its support in the neighbouring States, and the disorder
in Virginia and New Jersey, were moving arguments for immediate action.
Even Washington was forced to admit that the people were at last
sufficiently misled. The National Government, helpless to invade a
sovereign State to suppress domestic insurrection, was compelled to
finesse in taking some steps to mobilise the militia by imagining an
outbreak of Indians in Massachusetts.
Led by the alarming situation, Congress, with unusual dispatch, took
up the Annapolis suggestion within five months after its receipt. But
the feeling that the initiative should come from the Congress itself
rather than from an irregular convention led to the substitution of
a motion from the Massachusetts delegates in Congress that a convention
of delegates should be held at Philadelphia on the second Monday of
the following May "for the sole and express purpose of revising the
Articles of Confederation" and reporting its suggestions to Congress
and the several State Legislatures.
During the spring of 1787, State after State took up the idea of a
convention of the people to correct the errors in the national frame.
With rare discrimination, they chose, through their State Legislatures,
their leading men as delegates. All hope became centred in this
apparently last resort. The convention "will either recover us from
our present embarrassments or complete our ruin," said Monroe. That
radical changes were necessary, many felt assured. Madison likened the
Government at this time to a ship which Congress kept from sinking by
standing constantly at the pumps instead of stopping the leaks which
endangered her. He began to talk about "a new system" before the
convention assembled. In sending to Washington an outline study of all
prior confederated governments, he wrote, "Radical attempts, although
unsuccessful, will at least justify the authors of them."
Such sentiments were found to prevail generally among the delegates
when, on May 25, 1787, a majority of the States was represented and
sessions begun in the Independence Hall in the city of Philadelphia.
Within five days it was decided to cast aside the deficient Articles,
to exceed instructions, and to frame a new National Government with
separate legislative, judiciary, and executive functions. To put new
wine into old bottles was felt to be useless. No small task confronted
the convention in carrying out this resolution. Independence and the
other steps thus far leading toward nationality had been taken, as
George Mason, of Virginia, said, under a certain enthusiasm which
inspired and supported its advocates; but to sit down calmly to consider
a project which might bring happiness or misery to millions yet unborn
was an action, which, he confessed, absorbed and in a measure suspended
the human understanding. Robert Morris, a delegate from Pennsylvania,
begged his sons in France to offer a prayer for the success of the
meeting since so much of their future happiness depended upon it.
The lack of information on the work of the convention, which sat from
May 25 to September 17, 1787, is frequently deplored. The deficiency
is due not to indifference on the part of those concerned, but largely
to the lack of information given out to the public at the time and
since. In apologising to Jefferson for not sending a full account of
the proceedings during the sessions, Madison said: "It was thought
expedient, in order to secure unbiassed discussion within doors, and
to prevent misconceptions and misconstructions without, to establish
some rules of caution." These rules, adopted early in the proceedings,
forbade the inspection of the minutes by any one not a member,
prohibited the copying of any part of them, and enjoined the members
against disclosing anything said in the sessions. Dr. Manasseh Cutler,
who visited Philadelphia during the summer, went to the State House,
but found "sentries planted without and within--to prevent any person
from approaching near--who appear to be very alert in the performance
of their duty." When he went to pay his respects to Dr. Franklin, a
member of the convention from Pennsylvania, the philosopher showed him
a curiosity in the shape of a two-headed snake and fell to speculating
upon what it would do if, on meeting the stem of a bush, the heads
should choose to go one on each side of it. "He was then going to
mention," wrote Cutler in his journal, "a humorous matter that had
that day taken place in convention, in consequence of his comparing
the snake to America; but the secrecy of the convention matters was
suggested to him, which stopped him."
[Illustration: MANASSEH CUTLER]
This secrecy was felt to be binding perpetually by many of the members.
The secretary of the convention, Major Jackson, who came to Philadelphia
as private secretary to General Washington, kept the official minutes.
This book, by one of the final motions of the convention, was entrusted
to Washington, who had presided so conscientiously over the sessions
that he did not allow himself even the privilege of debating. In 1796,
he deposited it among the public archives. Until the year 1837, these
minutes, with a few letters submitted by some of the seceding delegates
justifying their action, and the gleanings from eighty-odd private
letters written by members of the convention, constituted all public
knowledge of the details of the meeting. But in the year mentioned
above, Madison's papers were purchased by the National Government, and
among them was found a number of little home-made books containing his
priceless "Notes on the Convention." In the introductory pages, Madison
tells how he carried out his determination to preserve a record of the
debates for the benefit of posterity.
"I chose a seat," he says, "in front of the presiding member, with the
other members on my right and left hands. In this favourable position
for hearing all that passed, I noted, in terms legible and in
abbreviations and marks intelligible to myself, what was read from the
Chair or spoken by the members; and, losing not a moment unnecessarily
between the adjournment and re-assembling of the convention, I was
enabled to write out my daily notes during the session or within a few
finishing days after its close, in the extent and form preserved in my
own hand on my files."
The changes made from day to day in the drafts of the Constitution,
as recorded in the minutes, are cleared up by the light of Madison's
notes and become a series of compromises. They were concessions made
by superior to inferior factions, or sacrifices made by one section
to satisfy and quiet another. That the equal State representation in
the Continental Congress, for instance, had been one of the most
pernicious parts of the Confederation machinery no one doubted. The
practice had been inaugurated in the first Continental Congress, as
the minutes under Sept. 6, 1774, explain, because the relative
importance of the colonies represented could not be determined at the
time. It was continued by default. But the arrangement bore no respect
to proportional representation. New Hampshire, Rhode Island, New Jersey,
Delaware, Maryland, South Carolina, and Georgia could combine and make
a majority of the States and yet contain not one-third of the people.
New York and Connecticut might be added, making nine of the thirteen
States, but representing less than one-half the total population.
Notwithstanding this inconsistency in the old method, so strong was
the fear of the smaller States that their large neighbours would absorb
or oppress them, that they took a decided stand in the convention
against all propositions to change to proportional representation. The
Delaware representatives were authorised to withdraw rather than submit
to any arrangement depriving the State of an equal vote with the other
States. On the other hand, the large States, especially Virginia, New
York, and Massachusetts, insisted upon changing to representation based
on wealth or population. As a way out of the deadlock, after weeks of
debate, two branches of Congress were determined upon, in one of which
membership and voting should be proportionate. Franklin then proposed
as a compromise that in one branch all bills for revenue should
originate and in the other branch the States should have equal vote.
This adjustment between the large and small States was considered the
grand compromise, and its acceptance was a matter for common rejoicing.
The solution of this problem immediately raised another. What was meant
by "population," which had been substituted for wealth as a basis of
apportioning delegates in the popular branch? Did it include slaves?
The Continental Congress had long been accustomed in assessing the
expenses of the war to add to the quotas of the States a sum equal to
three-fifths of the number of slaves in each, on the ground that the
labour of five slaves was equivalent to that of three free men. This
proportion was now taken both for determining representatives in
Congress and for assessing direct taxes. The States which continued
to hold slaves would consequently have the benefits of three-fifths
of their slaves represented by additional congressmen; but they must
bear three-fifths additional of a direct tax, whenever one might be
levied by the National Government.
The questionable value of slave labour had already divided the Southern
States into two economic classes. Delaware, Maryland, and Virginia,
because of the exhausting effects of tobacco upon the soil, had
attempted to restrict its cultivation by forbidding more slaves to be
brought in. The two Carolinas and Georgia, requiring fresh slave labour
for their rice and indigo fields, would not consent to any diminution
of the supply. A compromise was at last effected in the convention
which permitted the importation of new slaves into the United States
for the coming twenty years. This was done by the votes of the New
England States, where the slave-trading vessels were generally built,
added to those from the three Southern States. Against these were New
Jersey, Pennsylvania, Delaware, and Virginia. For some reason, the
Maryland delegates voted with the majority to keep the trade open.
This compromise was strongly opposed by Gouverneur Morris, a Northern
man, who confessed that he would sooner submit himself to a tax for
buying all the negroes in the United States than saddle posterity with
such a slavery constitution, and by Madison, a Southerner, who declared
that these twenty years would bring as much mischief as an unlimited
trade could produce. In accord with the practice of the old Congress,
the delegates decided to eliminate the word "slave" from the
Constitution, lest it might cause offence and beget opposition toward
the new government they were about to propose. Milder terms, like "such
persons" or "persons legally held to service or labour," were
substituted.
Many other adjustments were necessary to settle the Continental
differences. By one of these, the nation was given full control of
commerce. By another, the matter of choosing a chief executive was
entrusted not to the people directly, because, as was said, they would
be likely to be misled by designing men; nor to the national Congress,
because of the inequality of the Senate and House representation; nor
yet to the State Legislatures, because of the unequal sizes of the
States; but to a set of electors to be chosen by the States, a kind
of substitute for these various plans. The term of the presidential
office was, after many debates, fixed at four years, although an urgent
minority wanted him to serve seven years and not be eligible for a
second term. In very truth it may be said that the entire document is
made up of a series of compromises.
The twenty-three resolutions offered by Governor Randolph, of Virginia,
are commonly considered as forming the groundwork of the Constitution.
With them were incorporated apparently six provisions taken from the
plan devised in a conference of the small States and offered by
Paterson, of New Jersey, together with twenty suggestions emanating
from an individual member, Pinckney, of South Carolina. Even the
Virginia resolutions, although commonly ascribed to Madison and winning
for him the title, "Father of the Constitution," are modestly ascribed
by him to the series of conferences held by the Virginia delegates
during the ten days they waited for a quorum. "The resolutions," said
he later, "were the result of a consultation among the deputies of the
State; the whole number, seven, being present. Mr. Randolph was made
the organ of the occasion, being the governor of the State, of
distinguished talents, and in the habit of public speaking."
Turning over the pages of Madison's "Notes," one may follow through
committee and general session, the slow evolution of the Constitution
of the United States. The eager hands of the experienced workers turned
over the materials of old forms, rejecting parts hitherto tried and
found wanting, welding together familiar pieces brought from monarchical
or colonial precedent, and constructing a machine noted for
practicability rather than for novelty. They were forced to use careful
workmanship because of the great variety of opinions. They were hindered
constantly from rash action by inherited prejudices and climatic
differences. And they were conscious at the end of having wrought, not
perfectly, but as well as conditions would permit.
Experience was the fountain from which the Constitution-makers drew
their "inspiration." A novel creation, as a certain narrow provincialism
in the United States is sometimes fond of claiming for the Constitution,
would have been an assembling of theoretical machinery, of untried
experiments, which could not have met the shock of being suddenly put
into motion to replace a broken down system. It could not have won
back, solely on its merits, the confidence of the discouraged people.
If it had been "the most wonderful work ever struck off at a given
time by the brain and purpose of man," it could scarcely have withstood
the vicissitudes of a growing people for over a century, with amendment
in four particulars only. More experiments and less experience might
have required the adoption of more of the fifteen hundred amendments
which have been proposed to the Constitution in these hundred years.
Experience is a safe ground upon which to build. Gouverneur Morris
demolished a vast amount of eulogy when he wrote to a correspondent
in France that some boasted the Constitution as a work from Heaven,
while others gave it a less righteous origin. "I have many reasons to
believe," said this matter-of-fact man, who bore such a large part in
recasting the phraseology of the document, "that it was the work of
plain, honest men."
As matter is not created in any of its forms, but simply assumes new
combinations by its own laws or under the guidance of man, so apparently
new models in statecraft may be resolved by analysis into old ideas
in new combinations. The American Constitution is the English system
of government adapted to American soil through the intervening colonial
and state governments. The president is the king through the royal
governor, but shorn of his prerogative, descent, and perpetuity in the
transition. The Senate is the House of Lords, with its permanency
changed into a long tenure of office by passing through the colonial
council. To the same intermediate State is due the power of appointment
to office and of treaty-making which the Senate shares with the
executive, thus reviving the relation of the privy council, chosen
from the House of Lords, to the King. The House of Representatives is
copied directly from the popular assembly of the colonial government,
which in turn was modelled after the British Commons. The right of
originating bills of revenue, which the Representatives possess, was
preserved in many a contest between colonial assemblies and royal
governors. It is the birthright of Englishmen, dating from the Petition
of Right granted by Charles I., which substituted fixed taxes for
forced loans and gifts. The national supreme judiciary, the most novel
of the three divisions of the National Government, embodies in its
appellate principles the Privy Council of England, to which all
colonists could appeal, and the later admiralty committees of the
Continental Congress, to which all cases of prizes seized in the war
might be referred. The theory of a state court of last resort had
already found place in nine of the State constitutions and the
convention simply placed the capstone of a national Supreme Court on
the top of the column. Some parts of the colonial government were
rejected as unfitted to the national frame. An advisory council for
the President, such as nearly every colony gave to its governor, was
desired by many but finally omitted. The present Cabinet really takes
its place.
In like manner, it is possible to find British and colonial precedent,
tried and proved, for almost every provision of the National Government.
The ruling class at the time it was framed was composed of English and
Scotch, trained in British forms of government. The Dutch in New York
and the Germans of Pennsylvania took almost no part in the Philadelphia
Convention. It is as useless to deny an English parentage for the
American Constitution as to deny that there were English colonies in
America. So did the heirs of the ages avoid the mistakes of the past
by seeking the results of the law of the survival of the fittest. They
form a strong contrast with another people, less fitted by inheritance
for self-government, who were at about the same time entering upon the
task of constitution-making. "It is somewhat singular that we should
be engaged in the same project for the same purpose," Franklin wrote
to Chastellux, referring to the Assembly of Notables in France and the
Constitutional Convention in Philadelphia. "I hope both assemblies
will be blessed with success and that their deliberations and councils
may promote the happiness of both nations."
It so chanced that the very day the convention in Philadelphia had a
quorum, the Assembly in France, initiatory of the French Revolution,
was dismissed. Both had met in the spirit of reform; but to what
different ends did the two movements eventually come! The Americans
had in no case attempted the impossible; had not hoped for the immediate
dawn of the millennium; had not even attempted to put into practice
the loftiest sentiments of the Declaration of Independence; and had
carefully distinguished between the State as an agency for political
and for social rights. Very similar moderate sentiments on government
had been carried to France by Lafayette, the Lameths, Viscount de
Noailles, the Prince de Broglie, and others who came to America to
take part in the Revolutionary War. Their influence produced the
moderate French constitution of 1791, which shows a marked resemblance
to the American frame. That these principles were suited to the American
people is demonstrated by the rapidity with which peace and order were
established under them. That they were ill qualified for the French
people was shown by the early overthrow of the constitution of 1791.
The French constitution of 1793 and those which followed bore little
resemblance to the American frame. The influence which the American
Revolution exerted upon the French Revolution had passed, and the two
movements bore no further resemblance to each other. The Americans had
been content with a rebellion against authority and a revolution which
substituted old forms, or combinations of forms, with new officials.
The French revolutionists were not satisfied until they had tried to
change all existing forms and institutions. They would annihilate
society, the church, Christianity, even Deity itself. Precedent became
a crime. The accepted system of weights and measures, the
calendar--nothing was too well tried to compete with innovation. In
America, the rights of man were eventually tacked on to the tail of
the American Constitution as an afterthought to conciliate the timorous,
"a tub thrown to the whale," as the first ten amendments have been
called. In France, the rights of man overshadowed the working part of
the constitution, delaying essential details by their incorporation,
and ultimately furnishing a pretext for interfering with other peoples.
When once the Americans had secured a constitution, they desired nothing
so much as to be left alone to work out their own destiny. When once
the French had evolved a system, with true propagandist spirit they
wished to foist it on others. "With cannon for treaties and millions
of freemen as ambassadors," they demanded that the feet of all nations
should keep step with the march of what they deemed liberty. Hamilton,
as usual, had proven a seer when he wrote to Lafayette in France at
the very beginning of the French movement, "I fear much the final
success of the attempt, for the fate of those I esteem who are engaged
in it, and for the danger in case of success, of innovations greater
than will consist with the felicity of your nation."
The people of America seemed to wait with bated breath the conclusion
of the deliberations of the wise men of the nation met in convention
at Philadelphia. Rebellion stood with hesitating step, and warring
factions tacitly declared a truce. The crisis was at hand.
"The names of the members will satisfy you that the states have been
serious in this matter," wrote Madison to Jefferson from Philadelphia.
"The attendance of General Washington is a proof of the light in which
he regards it. The whole community is big with expectation and there can
be no doubt that the result will in some way or other have a powerful
effect on our destiny."
Even stronger conviction of the critical situation may be gleaned from
the private correspondence of the other members, bound by the pledge
of secrecy from describing the turbulent scenes attending the sessions.
Daily had they seen the difficulty of reconciling the inherited
animosity between the Puritan and the Cavalier transplanted to America;
between the Established Church and the Dissenter; between commercial
and agricultural interests; between a slave system and free labour;
between an urban population, accustomed to abide by majority rule, and
a rural people, bred to individual freedom and absolute home rule.
They had to evolve a system satisfactory to people scattered through
thirteen degrees of latitude, with climatic differences arising from
a mean average temperature of forty degrees in the north and sixty
degrees in the south. Such decentralising tendencies were met with
nowhere in Europe save under the strong hand of a monarch in Russia.
These climatic differences produced the frugal Northerner, who had to
provide in advance for the winter season, and the hospitable planter
of the South, in whom prodigality was induced by the very lavishness
of nature about him. It was not strange that by contrast, and seen
through the haze of distance, the frugality of the North should appear
to be avarice to the South; while the hospitality upon which that
section prided itself should seem to be prodigality in Northern eyes.
These bask differences could be reconciled by compromise, and that
only temporarily. Washington had summed up the situation when he
declared that there must be reciprocity or no union; that the whole
matter could be reduced to a single question--whether it was best for
the States to unite.
Although Washington, as presiding officer, took no part in the debates,
his influence in favour of effective government must have had weight
in the convention. Madison and Gouverneur Morris bore the brunt of
objections to a national system. Franklin, a victim of old age and ill
health, was allowed to read his speeches from his seat. Hamilton pleaded
for a more effective system early in the sessions, but his radical
views undoubtedly militated against any plan he had to offer. Two of
the most influential members from the Southern States, Randolph and
Mason, of Virginia, refused to countenance the proceedings by their
signatures to the document. Another member, Gerry, of Massachusetts,
followed their example. Luther Martin, a prominent lawyer of Maryland,
returned to his constituency to write a letter of protest against the
assumption of power by the convention in framing a new government when
called together solely for the purpose of correcting the old. Yates
and Lansing, two of the three delegates from the prominent State of
New York, went home for the same reason. The third, Alexander Hamilton,
withdrew for a time in disgust because his efforts for an efficient
central power produced apparently little results. The sessions had,
for the most part, representatives from eleven States only, Rhode
Island having failed to send delegates. Her refusal was caused by a
conviction that the convention would recommend taking away from the
States the power to issue money and to collect duties. Her fears proved
true.
Outside the closed doors of the convention the public clamoured,
declaring Star-Chamber sessions an insult to the American people. All
kinds of rumours prevailed concerning the probable action of the
convention. Some newspapers declared that three republics, an eastern,
a middle, and a southern, had been agreed upon, under the conviction
that so numerous a people and so large a territory could not be
incorporated under one government. Still others passed the news that
the plan of the royal electorate of Poland had been adopted, and the
second son of George III., Bishop of Osnaburgh, had been chosen king
of the United States. An unofficial denial of this rumour appeared in
a Philadelphia paper. "We never once thought of a king," it said.
"Benny the Roofer" appeared in the prints in ridicule of Benjamin
Franklin, who, it was said, was endeavouring to construct a roof over
the entire United States.
At last the only body, which has ever been called together in the
United States to consider a frame of national government, was ready
to report and to adjourn. A new plan of government lay on the table
signed by thirty-nine of the fifty-five men attending the convention.
They admitted its defects, but agreed that it was the best frame that
could be obtained at the time, and resolved to throw themselves on the
indulgence of their constituents. As much was confessed in the
explanatory and conciliatory circular, which they prepared to accompany
the document to the Congress and thence, they hoped, to the States.
"Individuals entering society," so the circular argued, "must give up a
share of liberty to preserve the rest. It is at all times difficult to
draw with precision the line between those rights which must be
surrendered and those which may be reserved; and, on the present
occasion, this difficulty was increased by a difference among the
several states as to their situation, extent, habits, and particular
rights. The Constitution which we now present is the result of a spirit
of amity, and of that mutual deference and concession which the
peculiarity of our political situation rendered indispensable."
Here was the voice of compromise, and of that conciliatory spirit,
which alone can make union possible. If the people at large would show
the same indulgence toward each other, the experiment would be given
a trial. Assuredly, the members of the convention set them a good
example of toleration. "No man's ideas," said Hamilton, "are more
remote from the plan than my own are known to be; but is it possible
to deliberate between anarchy and convulsion on the one side and the
chance of good to be expected from the plan on the other?" "I consent,
sir, to this Constitution," said the aged Franklin, in a paper read
by his confrere, Wilson, "because I expect no better, and because I
am not sure it is not the best." He advised that opinions on the errors
of the document should never be carried beyond the walls of the
convention.
"If every one of us here," said he, "in returning to our constituents,
were to report the objections he has had to it, and endeavour to gain
partisans in support of them, we might prevent its being generally
received, and thereby lose all the salutary effects and great advantages
resulting naturally in our favour among foreign nations as well as among
ourselves, from our real or apparent unanimity."
Gouverneur Morris confessed that the present plan had many objections,
but, considering it the best that could be obtained, he would take it
with all its faults. The moment it went forth, the great question, in
his opinion, would be whether there should be a national government,
or not, and a negative reply would mean a general anarchy.
Washington, after his return to Mt. Vernon, sent a copy of the document
to Patrick Henry, saying, "I wish the Constitution, which is offered,
had been more perfect; but I sincerely believe it is the best that
could be obtained at this time." The Revolutionary orator had refused
to attend the convention as a delegate from Virginia. He preferred the
Articles with their imperfections to an experiment. To Washington he
replied that he could not bring his mind to accord with the proposed
Constitution. He would prefer to bear the ills they had than fly to
others that they knew not of. Harrison, a Virginia neighbour with whom
Washington had also been associated since the Revolutionary times,
replied to the General in acknowledging the receipt of a copy of the
Constitution that he feared the remedy would be worse than the disease.
Such sentiments were not confined to these Virginia statesmen. It was
evident that the victory for the new government had been only half won
in its formation and adoption by the convention. It had yet to be
accepted by the Congress and to be adopted by nine of the States before
going into effect. Great opportunity for a renewal of insurrection and
faction would be offered by undue delay.