CHAPTER VII

THE CONSTITUTIONAL CONVENTION

Mr. Madison is called "the Father of the Constitution." A paper written

by him was laid before his colleagues of Virginia, before the meeting of

the Constitutional Convention at Philadelphia, and was made the basis of

the "Virginia plan," as it was called, out of which the Constitution was

evolved. In another way his name is so identified with it that one

cannot be forgotten so long as the other is remembered. From that full

and faithful report of the proceedings of the convention, in which his

own part was so active and conspicuous, we know most that we do or ever

can know of the perplexities and trials, the concessions and triumphs,

the acts of wisdom and the acts of weakness, of that body of men whose

coming together time has shown to have been one of the important events

in the history of mankind.

Then it is also true that no man had worked harder, perhaps none had

worked so hard, to bring the public mind to a serious consideration of

affairs and a recognition of the necessity of reorganizing the

government, if the States were to be held together. Never, it seemed,

had men better reason to be satisfied with the result of their labors

when, a few months later, the new Constitution was accepted by all the

States. Yet the time was not far distant when even Madison would be in

doubt as to the character of this new bond of union, and as to what sort

of government had been secured by it. Nor till he had been dead near

thirty years was it to be determined what union under the Constitution

really meant; nor till three quarters of a century after the adoption of

that instrument was the more perfect union formed, justice established,

domestic tranquillity insured, the general welfare promoted, and the

blessings of liberty secured to all the people, which by that great

charter it was intended, in 1787, to ordain and establish. All the

difficulties, which they who framed it escaped by their work, were as

nothing to those which it entailed upon their descendants.

Two parties went into the convention. On one point, of course, they were

agreed, else they would never have come together at all,--that a united

government under the Articles of Confederation was a failure, and,

unless some remedy should be speedily devised, States with common local

interests would gravitate into separate and perhaps antagonistic

nationalities. But the differences between these two parties were

radical, and for a time seemed insurmountable. One proposed simply to

repair the Articles of Confederation as they might overhaul a machine

that was out of gear; the other proposed to form an altogether new

Constitution. One wanted a merely federal government; not, however,

meaning by that term what the other party--soon, nevertheless, to be

known as Federalists--were striving for, but a confederation of States,

each independent of all the rest and supreme in its own right, while

consenting to unite with the rest in a limited government for the

administration of certain common interests.[10]

This idea of the independence of the States was a survival of the old

colonial system, when each colony under its distinct relation to the

crown had attained a growth of its own with its separate interests. Each

of these colonies had become a State. The Revolution had secured to

each, it was maintained, a separate independence, achieved, it was true,

by united efforts, but not therefore binding them together as a single

nation. It was held as a legitimate result of that doctrine that each

State, not the people of the State, whether many or few, should be

represented by the same number of votes in a federal government as they

were under the Articles of Confederation, because such a government was

a union of States, not of a people.

All men, it was argued,--going back to a state of nature,--are equally

free and independent; and when a government is formed every man has an

equal share by natural right in its formation and in its subsequent

conduct. While numbers are few, every member of the State exercises his

individual right in person, and none can rightfully do more than this,

however wise, or powerful, or rich he may be. But when government by the

whole body of the people becomes cumbersome and inconvenient through

increase of numbers, the individual citizen loses none of his rights by

intrusting their exercise to representatives, in choosing and

instructing whom all have an equal voice. So when States are united in a

confederacy each State has the same relation to that government that

individuals have to each other in a single State. They are free and

equal, and none has a larger share of rights in the confederacy because

its people are more numerous, or because it is richer or more powerful,

than the rest. In such a confederacy it is not the individual citizen

who is to be represented, but the individual State. In such a

confederacy there would be the same representation for a State, say of

ten thousand inhabitants, as for one of fifty thousand. This, it was

maintained, preserved equality of suffrage in the equality of States;

while the representation of the individual citizens of the States would

be in reality inequality of suffrage, because the autonomy of the State

would be lost sight of. If in such a case it were asked what had become

of the rights which the majority of forty thousand had inherited from

nature, the answer was that those rights were preserved and represented

in the state government. The difficulty, nevertheless, remained: how to

reconcile in practice this doctrine of the equal rights of States, where

there might be a minority of persons, with the actual rights of the

whole people where, according to the underlying democratic doctrine, the

good of the whole must be decided by the larger number.

Those who proposed only to amend the old Articles of Confederation, and

opposed a new Constitution, objected that a government formed under such

a Constitution would be not a federal but a national government. Luther

Martin said, when he returned to Maryland, that the delegates "appeared

totally to have forgot the business for which we were sent.... We had

not been sent to form a government over the inhabitants of America

considered as individuals.... That the system of government we were

intrusted to prepare was a government over these thirteen States, but

that in our proceedings we adopted principles which would be right and

proper only on the supposition that there were no state governments at

all, but that all the inhabitants of this extensive continent were in

their individual capacity, without government, and in a state of

nature." He added that "in the whole system there was but one federal

feature, the appointment of the senators by the States in their

sovereign capacity, that is, by their legislatures, and the equality of

suffrage in that branch; but it was said that this feature was only

federal in appearance."

The Senate, the second house as it was called in the convention, was in

part created, it is needless to say, to meet, or rather in obedience to,

reasoning like this. There was almost nobody who would have been willing

to abandon the state governments, as there was next to nobody who wanted

a monarchy. "We were eternally troubled," Martin said, "with arguments

and precedents from the British government." He could not get beyond the

fixed notion that those whom he opposed were determined to establish

"one general government over this extensive continent, of a monarchical

nature." If he, and those who agreed with him, sincerely believed this

to be true, it was natural enough that the frequent allusions to British

precedents, as wise rules for American guidance in constructing a

government, should be looked upon as an unmistakable hankering after

lost flesh-pots. Should the state governments be swept away, it might be

that, in time of danger from without or of peril from internal

dissensions, the country, under "a government of a monarchical nature,"

might drift back to its old allegiance. If those who feared, or said

they feared, this were not quite sincere, the temptation was almost

irresistible to use such arguments to arouse popular prejudice against

political opponents. It is curious that Madison seemed quite unconscious

of how much the frequent allusions in his articles in "The Federalist"

to the British Constitution might strengthen these accusations of the

opposition; while he half believed that the same thing in others showed

in them a leaning toward England, from which he knew that he himself was

quite free.

The Luther Martin protestants were too radical to remain in the

convention to the end, when they saw that such a confederacy as they

wanted was impossible. But there were not many who went the length they

did in believing that a strong central government was necessarily the

destruction of the state governments. Still fewer were those who would

have brought this about if they could. That the rights of the States

must be preserved was the general opinion and determination, and it was

not difficult to do this by limiting the powers of the higher

government, or federal as it soon came to be called, and by the

organization of the second house, the Senate, in which all the States

had an equal representation. The smaller States were satisfied with this

concession, and the larger were willing to make it, not only for the

sake of the Union, but because of the just estimate in which they held

the rights belonging to all the States alike. The real difficulty, as

Madison said in the debate on that question, and as he repeated again

and again after that question was settled, was not between the larger

and smaller States, but between the North and the South; between those

States that held slaves and those that had none.

Slavery in the Constitution, which has given so much trouble to the

Abolitionists of this century, and indeed to everybody else, gave quite

as much in the last century to those who put it there. Many of the

wisest and best men of the time, Southerners as well as Northerners, and

among them Madison, were opposed to slavery. They could see little good

in it, hardly even any compensation for the existence of a system so

full of evil. There was hardly a State in the Union at that time that

had not its emancipation society; and there was hardly a man of any

eminence in the country who was not an officer, or at least a member, of

such a society. Everywhere north of South Carolina, slavery was looked

upon as a misfortune which it was exceedingly desirable to be free from

at the earliest possible moment; everywhere north of Mason and Dixon's

line, measures had already been taken, or were certain soon to be taken,

to put an end to it; and by the ordinance for the government of all the

territory north of the Ohio River it was absolutely prohibited by

Congress in the same year in which the Constitutional Congress met.

But it was, nevertheless, a thing to the continued existence of which

the anti-slavery people of that time could consent without any violation

of conscience. Bad as it was, unwise, wasteful, cruel, a mockery of

every pretense of respect for the rights of man, they did not believe it

to be absolutely wicked. If they had so believed, let us hope they would

have washed their hands of it. As it was, it was only a question of

expediency whether, for the sake of the Union, they should protect the

system of slavery, and give to the slaveholders, as slaveholders, a

certain degree of political power. To refuse to admit a slaveholding

State into the Union did not occur, probably, to the most earnest

opponent of the system; for that would have been simply to say that

there should be no Union. That was what Madison meant in saying so

repeatedly that the real difficulty in the way was, not the difference

between the large and the small States, but the difference between the

slaveholding and the non-slaveholding States. If there could be no

conciliation on that point there could be no Union.

Some hoped, perhaps, rather than believed, that slavery was likely to

disappear ere long at the South as it was disappearing at the North. It

is an impeachment of their intelligence, however, to suppose that they

relied much upon any such hope. The simple truth is that slavery was

then, as it continued to be for three quarters of a century longer, the

paramount interest of the South. To withstand or disregard it was not

merely difficult, but was to brave immediate possible dangers and

sufferings, which are never voluntarily encountered except in obedience

to the highest sense of duty; or to meet a necessity, from which there

was no manly way of escape. The sense of absolute duty was wanting; the

necessity, it was hoped, might be avoided by concessions. It can only be

said for those who made them that they did not see what fruitful seeds

of future trouble they were sowing in the Constitution.

FOOTNOTE:

[Footnote 10: Those who were zealous for state rights, and opposed to a

central government, called the system they wished to reestablish a

Federal System,--a confederacy of States. It was too convenient and

probably too popular a term to be lost, and the other party adopted it

when the new Constitution was formed. _The Federalist_ was the name

chosen for the volume in which were collected the papers, written first

under the signature of "A Citizen of New York," but afterward changed to

"Publius," in support of the new Constitution, by Hamilton, Madison, and

Jay. In one of the earlier papers Mr. Hamilton refers to the Articles of

Confederation, which were to be superseded, as the Federal Constitution;

but in the later papers Madison is careful to refer to the proposed form

of government as the Federal Constitution, and Federal soon came to be

the distinguishing name of the party which first came into power under

the new Constitution. Whatever may be said of Madison's other title, his

right to that of father of the Federal party can hardly be disputed.]

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