CHAPTER I

AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

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AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

BY

CHARLES A. BEARD

ASSOCIATE PROFESSOR OF POLITICS IN COLUMBIA UNIVERSITY

New York

THE MACMILLAN COMPANY

1914

_All rights reserved_

COPYRIGHT, 1913,

BY THE MACMILLAN COMPANY.

Set up and electrotyped. Published April, 1913. Reprinted July, 1914.

Norwood Press

J. S. Cushing Co.—Berwick & Smith Co.

Norwood, Mass., U.S.A.

PREFACE

The following pages are frankly fragmentary. They are designed to

suggest new lines of historical research rather than to treat the

subject in an exhaustive fashion. This apology is not intended as an

anticipation of the criticism of reviewers, but as a confession of fact.

No one can appreciate more fully than I do how much of the work here

outlined remains to be done. The records of the Treasury Department at

Washington, now used for the first time in connection with a study of

the formation of the Constitution, furnish a field for many years’

research, to say nothing of the other records, printed and unprinted,

which throw light upon the economic conditions of the United States

between 1783–1787.

If it be asked why such a fragmentary study is printed now, rather than

held for the final word, my explanation is brief. I am unable to give

more than an occasional period to uninterrupted studies, and I cannot

expect, therefore, to complete within a reasonable time the survey which

I have made here. Accordingly, I print it in the hope that a few of this

generation of historical scholars may be encouraged to turn away from

barren “political” history to a study of the real economic forces which

condition great movements in politics.

Students already familiar with the field here surveyed will discover

that I have made full use of the suggestive work already done by

Professor Turner, Drs. Libby, Ambler, and Schaper.

I am indebted to Mr. Merwin of the Treasury Department for his great

courtesy in making available the old records under his jurisdiction; to

Mr. Bishop, of the Library of Congress, for facilitating the examination

of thousands of pamphlets as well as for other favors; and to Mr.

Fitzpatrick, of the Manuscript Division, for keeping his good humor

while bringing out hundreds of manuscripts which seemed to yield results

wholly out of proportion to the labor entailed.

I am under deep obligation to two friends, nameless here, without whose

generous sympathy and encouragement, this volume could not have been

written.

CHARLES A. BEARD.

WASHINGTON, D.C.,

February, 1913.

CONTENTS

CHAPTER PAGE

I. HISTORICAL INTERPRETATION IN THE UNITED STATES 1

II. A SURVEY OF ECONOMIC INTERESTS IN 1787 19

III. THE MOVEMENT FOR THE CONSTITUTION 52

IV. PROPERTY SAFEGUARDS IN THE ELECTION OF DELEGATES 64

V. THE ECONOMIC INTERESTS OF THE MEMBERS OF THE CONVENTION 73

VI. THE CONSTITUTION AS AN ECONOMIC DOCUMENT 152

VII. THE POLITICAL DOCTRINES OF THE MEMBERS OF THE CONVENTION 189

VIII. THE PROCESS OF RATIFICATION 217

IX. THE POPULAR VOTE ON THE CONSTITUTION 239

X. THE ECONOMICS OF THE VOTE ON THE CONSTITUTION 253

XI. THE ECONOMIC CONFLICT OVER RATIFICATION AS VIEWED BY CONTEMPORARIES 292

AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

CHAPTER I

HISTORICAL INTERPRETATION IN THE UNITED STATES

Broadly speaking, three schools of interpretation have dominated

American historical research and generalization. The first of these,

which may be justly associated with the name of Bancroft, explains the

larger achievements in our national life by reference to the peculiar

moral endowments of a people acting under divine guidance; or perhaps it

would be more correct to say, it sees in the course of our development

the working out of a higher will than that of man. There is to be

observed in the history of the struggle for the Constitution, to use

Bancroft’s words, “the movement of the divine power which gives unity to

the universe, and order and connection to events.”[1]

Notwithstanding such statements, scattered through Bancroft’s pages, it

is impossible to describe in a single phrase the ideal that controlled

his principles of historical construction, because he was so often

swayed by his deference to the susceptibilities of the social class from

which he sprang and by the exigencies of the public life in which he

played a by no means inconspicuous part. Even telling the whole truth

did not lie upon his conscience, for, speaking on the question of the

number of Americans who were descendants from transported felons and

indented servants, he said that “Having a hand full, he opened his

little finger.”[2]

Nevertheless, Bancroft constantly recurs in his writings to that “higher

power” which is operating in human affairs, although he avoids citing

specific events which may be attributed to it. It appears to him to be

the whole course of history, rather than any event or set of events,

which justifies his theory. “However great,” he says, “may be the number

of those who persuade themselves that there is in man nothing superior

to himself, history interposes with evidence that tyranny and wrong lead

inevitably to decay; that freedom and right, however hard may be the

struggle, always prove resistless. Through this assurance ancient

nations learn to renew their youth; the rising generation is incited to

take a generous part in the grand drama of time; and old age, staying

itself upon sweet Hope as its companion and cherisher, not bating a jot

of courage, nor seeing cause to argue against the hand or the will of a

higher power, stands waiting in the tranquil conviction that the path of

humanity is still fresh with the dews of morning, that the Redeemer of

the nations liveth.”[3]

The second school of historical interpretation, which in the order of

time followed that of Bancroft, may be called the Teutonic, because it

ascribes the wonderful achievements of the English-speaking peoples to

the peculiar political genius of the Germanic race. Without distinctly

repudiating the doctrine of the “higher power” in history, it finds the

secret to the “free” institutional development of the Anglo-Saxon world

in innate racial qualities.

The thesis of this school is, in brief, as follows. The Teutonic peoples

were originally endowed with singular political talents and aptitudes;

Teutonic tribes invaded England and destroyed the last vestiges of the

older Roman and British culture; they then set an example to the world

in the development of “free” government. Descendants of this specially

gifted race settled America and fashioned their institutions after old

English models. The full fruition of their political genius was reached

in the creation of the Federal Constitution.

For more than a generation the Teutonic theory of our institutions

deeply influenced historical research in the United States; but it was

exhausted in the study of local government rather than of great epochs;

and it produced no monument of erudition comparable to Stubbs’

_Constitutional History of England_. Whatever may be said of this

school, which has its historical explanation and justification,[4] it

served one exceedingly useful purpose: it was scrupulously careful in

the documentation of its preconceptions and thus cultivated a more

critical spirit than that which characterized the older historians.[5]

The third school of historical research is not to be characterized by

any phrase. It is marked rather by an absence of hypotheses. Its

representatives, seeing the many pitfalls which beset the way of earlier

writers, have resolutely turned aside from “interpretation” in the

larger sense, and concerned themselves with critical editions of the

documents and with the “impartial” presentation of related facts. This

tendency in American scholarship has been fruitful in its results, for

it has produced more care in the use of historical sources and has given

us many excellent and accurate surveys of outward events which are

indispensable to the student who would inquire more deeply into

underlying causes.[6]

Such historical writing, however, bears somewhat the same relation to

scientific history which systematic botany bears to ecology; that is, it

classifies and orders phenomena, but does not explain their proximate or

remote causes and relations. The predominance of such a historical ideal

in the United States and elsewhere is not altogether inexplicable; for

interpretative schools seem always to originate in social

antagonisms.[7] The monarchy, in its rise and development, was never

correctly understood as long as it was regarded by all as a mystery

which must not be waded into, as James I put it, by ordinary mortals.

Without the old régime there would have been no Turgot and Voltaire;

Metternich and Joseph de Maistre came after the Revolution.

But the origin of different schools of interpretation in controversies

and the prevalence of many mere preconceptions bolstered with a show of

learning should not lead us to reject without examination any new

hypothesis, such as the theory of economic determinism, on the general

assumption of Pascal “that the will, the imagination, the disorders of

the body, the thousand concealed infirmities of the intelligence

conspire to reduce our discovery of justice and truth to a process of

haphazard, in which we more often miss than hit the mark.” Such a

doctrine of pessimism would make of equal value for the student who

would understand, for instance, such an important matter as the origin

of the state, Mr. Edward Jenk’s severely scientific _History of

Politics_ and Dr. Nathaniel Johnston’s _The Excellency of Monarchical

Government, especially the English Monarchy, wherein is largely treated

of the Several Benefits of Kingly Government and the Inconvenience of

Commonwealths.... Likewise the Duty of Subjects and the Mischief of

Faction, Sedition, and Rebellion_, published in 1686.

It is not without significance, however, that almost the only work in

economic interpretation which has been done in the United States seems

to have been inspired at the University of Wisconsin by Professor

Turner, now of Harvard. Under the direction of this original scholar and

thinker, the influence of the material circumstances of the frontier on

American politics was first clearly pointed out. Under his direction

also the most important single contribution to the interpretation of the

movement for the federal Constitution was made: O. G. Libby’s

_Geographical Distribution of the Vote of the Thirteen States on the

Federal Constitution_.

In a preface to this work, Professor Turner remarks that the study was

designed to contribute “to an understanding of the relations between the

political history of the United States, and the physiographic, social,

and economic conditions underlying this history.... It is believed that

many phases of our political history have been obscured by the attention

paid to state boundaries and to the sectional lines of North and South.

At the same time the economic interpretation of our history has been

neglected. In the study of the persistence of the struggle for state

particularism in American constitutional history, it was inevitable that

writers should make prominent the state as a political factor. But, from

the point of view of the rise and growth of sectionalism and

nationalism, it is much more important to note the existence of great

social and economic areas, independent of state lines, which have acted

as units in political history, and which have changed their political

attitude as they changed their economic organization and divided into

new groups.”[8]

Although the hypothesis that economic elements are the chief factors in

the development of political institutions has thus been used in one or

two serious works, and has been more or less discussed as a philosophic

theory,[9] it has not been applied to the study of American history at

large—certainly not with that infinite detailed analysis which it

requires. Nor has it received at the hands of professed historians that

attention which its significance warrants. On the contrary, there has

been a tendency to treat it with scant courtesy and to dismiss it with a

sharpness bordering on contempt.[10] Such summary judgment is, of

course, wholly unwarranted and premature; for as Dr. William Cunningham

remarks, the validity of no hypothesis can be determined until it has

been worked to its utmost limits. It is easier to write a bulky volume

from statutes, congressional debates,[11] memoirs, and diplomatic notes

than it is to ascertain the geographical distribution and political

significance of any important group of economic factors. The theory of

economic determinism has not been tried out in American history, and

until it is tried out, it cannot be found wanting.

Sadly as the economic factors have been ignored in historical studies,

the neglect has been all the more pronounced in the field of private and

public law. The reason for this is apparent. The aim of instruction in

these subjects is intensely practical; there are few research

professorships in law; and the “case” system of teaching discourages

attempts at generalization and surveys.[12] Not even the elementary work

has been done. There has been no generous effort to describe the merely

superficial aspects of the development of private law in the United

States. There has been no concerted attempt to bring together and make

available to students the raw materials of such a history. Most of the

current views on the history of our law are derived from occasional

disquisitions of judges which are all too frequently shot through with

curious errors of fact and conception.

Nor has England advanced far beyond us in the critical interpretation of

legal evolution—its explanation in terms of, or in relation to, the

shifting economic processes and methods in which the law is tangled. It

is true that English scholars have produced admirable histories of the

law in its outward aspects, such as the monumental work of Pollock and

Maitland; and they have made marvellous collections of raw materials,

like the publications of the Selden Society. But apart from scattered

and brilliant suggestions thrown off occasionally by Maitland[13] in

passing, no interpretation has been ventured, and no effort has been

made to connect legal phases with economic changes.

In the absence of a critical analysis of legal evolution, all sorts of

vague abstractions dominate most of the thinking that is done in the

field of law. The characteristic view of the subject taken by American

commentators and lawyers immersed in practical affairs is perhaps summed

up as finely by Carter as by any writer. “In free, popular states,” he

says, “the law springs from and is made by the people; and as the

process of building it up consists in applying, from time to time, to

human actions the popular ideal or standard of justice, justice is only

interest consulted in the work.... The law of England and America has

been a pure development proceeding from a constant endeavor to apply to

the civil conduct of men the ever advancing standard of justice.”[14] In

other words, law is made out of some abstract stuff known as “justice.”

What set the standard in the beginning and why does it advance?

The devotion to deductions from “principles” exemplified in particular

cases, which is such a distinguishing sign of American legal thinking,

has the same effect upon correct analysis which the adherence to

abstract terms had upon the advancement of learning—as pointed out by

Bacon. The absence of any consideration of the social and economic

elements determining the thought of the thinkers themselves is all the

more marked when contrasted with the penetration shown by European

savants like Jhering, Menger, and Stammler. Indeed, almost the only

indication of a possible economic interpretation to be found in current

American jurisprudence is implicit in the writings of a few scholars,

like Professor Roscoe Pound and Professor Goodnow,[15] and in occasional

opinions rendered by Mr. Justice Holmes of the Supreme Court of the

United States.[16]

What has here been said about our private law may be more than repeated

about our constitutional history and law. This subject, though it has

long held an honorable position in the American scheme of learning, has

not yet received the analytical study which its intrinsic importance

merits. In the past, it has often been taught in the law schools by

retired judges who treated it as a branch of natural and moral

philosophy or by practical lawyers who took care for the instant need of

things. Our great commentaries, Kent, Story, Miller, are never

penetrating; they are generally confined to statements of fact; and

designed to inculcate the spirit of reverence rather than of

understanding. And of constitutional histories, strictly speaking, we

have none, except the surveys of superficial aspects by Curtis and

Bancroft.

In fact, the juristic theory of the origin and nature of the

Constitution is marked by the same lack of analysis of determining

forces which characterized older historical writing in general. It may

be stated in the following manner: The Constitution proceeds from the

whole people; the people are the original source of all political

authority exercised under it; it is founded on broad general principles

of liberty and government entertained, for some reason, by the whole

people and having no reference to the interest or advantage of any

particular group or class. “By calm meditation and friendly councils,”

says Bancroft, “they [the people] had prepared a Constitution which, in

the union of freedom with strength and order, excelled every one known

before.... In the happy morning of their existence as one of the powers

of the world, they had chosen justice for their guide; and while they

proceeded on their way with a well-founded confidence and joy, all the

friends of mankind invoked success on their endeavor as the only hope

for renovating the life of the civilized world.”[17]

With less exaltation, Chief Justice Marshall states the theory, in his

opinion in the case of McCulloch _v._ Maryland: “The government proceeds

directly from the people; is ‘ordained and established’ in the name of

the people; and is declared to be ordained ‘in order to form a more

perfect union, to establish justice, insure domestic tranquillity, and

secure the blessings of liberty’ to themselves and to their posterity.

The assent of the states, in their sovereign capacity, is implied in

calling a convention, and thus submitting that instrument to the people.

But the people were at perfect liberty to accept or reject it; and their

act was final.... The government of the Union, then (whatever may be the

influence of this fact on the case) is emphatically and truly a

government of the people. In form and in substance it emanates from

them. Its powers are granted by them, and are to be exercised directly

on them, and for their benefit.... It is the government of all; its

powers are delegated by all; it represents all, and acts for all.”[18]

In the juristic view, the Constitution is not only the work of the whole

people, but it also bears in it no traces of the party conflict from

which it emerged. Take, for example, any of the traditional legal

definitions of the Constitution; Miller’s will suffice: “A constitution,

in the American sense of the word, is any instrument by which the

fundamental powers of the government are established, limited, and

defined, and by which these powers are distributed among the several

departments for their more safe and useful exercise, for the benefit of

the body politic.... It is not, however, the origin of private rights,

nor the foundation of laws. It is not the cause, but the consequence of

personal and political freedom. It declares those natural and

fundamental rights of individuals, for the security and common enjoyment

of which governments are established.”[19]

Nowhere in the commentaries is there any evidence of the fact that the

rules of our fundamental law are designed to protect any class in its

rights, or secure the property of one group against the assaults of

another. “The Constitution,” declares Bancroft, “establishes nothing

that interferes with equality and individuality. It knows nothing of

differences by descent, or opinions, of favored classes, or legalized

religion, or the political power of property. It leaves the individual

along-side of the individual.... As the sea is made up of drops,

American society is composed of separate, free, and constantly moving

atoms, ever in reciprocal action ... so that the institutions and laws

of the country rise out of the masses of individual thought, which, like

the waters of the ocean, are rolling evermore.”[20]

In turning from the vague phraseology of Bancroft to an economic

interpretation of constitutional history, it is necessary to realize at

the outset that law is not an abstract thing, a printed page, a volume

of statutes, a statement by a judge. So far as it becomes of any

consequence to the observer it must take on a real form; it must govern

actions; it must determine positive relations between men; it must

prescribe processes and juxtapositions.[21] A statute may be on the

books for an age, but unless, under its provisions, a determinate

arrangement of human relations is brought about or maintained, it exists

only in the imagination. Separated from the social and economic fabric

by which it is, in part, conditioned and which, in turn, it helps to

condition, it has no reality.

Now, most of the law (except the elemental law of community defence) is

concerned with the property relations of men, which reduced to their

simple terms mean the processes by which the ownership of concrete forms

of property is determined or passes from one person to another. As

society becomes more settled and industrial in character, mere defence

against violence (a very considerable portion of which originates in

forcible attempts to change the ownership of property) becomes of

relatively less importance; and property relations increase in

complexity and subtlety.

But it may be said that constitutional law is a peculiar branch of the

law; that it is not concerned primarily with property or with property

relations, but with organs of government, the suffrage, administration.

The superficiality of this view becomes apparent at a second glance.

Inasmuch as the primary object of a government, beyond the mere

repression of physical violence, is the making of the rules which

determine the property relations of members of society, the dominant

classes whose rights are thus to be determined must perforce obtain from

the government such rules as are consonant with the larger interests

necessary to the continuance of their economic processes, or they must

themselves control the organs of government. In a stable despotism the

former takes place; under any other system of government, where

political power is shared by any portion of the population, the methods

and nature of this control become the problem of prime importance—in

fact, the fundamental problem in constitutional law. The social

structure by which one type of legislation is secured and another

prevented—that is, the constitution—is a secondary or derivative feature

arising from the nature of the economic groups seeking positive action

and negative restraint.

In what has just been said there is nothing new to scholars who have

given any attention to European writings on jurisprudence. It is based

in the first instance on the doctrine advanced by Jhering that law does

not “grow,” but is, in fact, “made”—adapted to precise interests which

may be objectively determined.[22] It was not original with Jhering.

Long before he worked out the concept in his epoch-making book, _Der

Zweck im Recht_, Lassalle had set it forth in his elaborate _Das System

der erworbenen Rechte_,[23] and long before Lassalle had thought it

through, our own Madison had formulated it, after the most wide-reaching

researches in history and politics.[24]

In fact, the inquiry which follows is based upon the political science

of James Madison, the father of the Constitution and later President of

the Union he had done so much to create. This political science runs

through all of his really serious writings and is formulated in its most

precise fashion in _The Federalist_[25] as follows: “The diversity in

the faculties of men, from which the rights of property originate, is

not less an insuperable obstacle to a uniformity of interests. The

protection of these faculties is the first object of government. From

the protection of different and unequal faculties of acquiring property,

the possession of different degrees and kinds of property immediately

results; and from the influence of these on the sentiments and views of

the respective proprietors, ensues a division of society into different

interests and parties.... The most common and durable source of factions

has been the various and unequal distribution of property. Those who

hold and those who are without property have ever formed distinct

interests in society. Those who are creditors, and those who are

debtors, fall under a like discrimination. A landed interest, a

manufacturing interest, a mercantile interest, a moneyed interest, with

many lesser interests, grow up of necessity in civilized nations and

divide them into different classes, actuated by different sentiments and

views. The regulation of these various and interfering interests forms

the principal task of modern legislation, and involves the spirit of

party and faction in the necessary and ordinary operations of the

government.”

Here we have a masterly statement of the theory of economic determinism

in politics.[26] Different degrees and kinds of property inevitably

exist in modern society; party doctrines and “principles” originate in

the sentiments and views which the possession of various kinds of

property creates in the minds of the possessors; class and group

divisions based on property lie at the basis of modern government; and

politics and constitutional law are inevitably a reflex of these

contending interests. Those who are inclined to repudiate the hypothesis

of economic determinism as a European importation must, therefore,

revise their views, on learning that one of the earliest, and certainly

one of the clearest, statements of it came from a profound student of

politics who sat in the Convention that framed our fundamental law.

The requirements for an economic interpretation of the formation and

adoption of the Constitution may be stated in a hypothetical proposition

which, although it cannot be verified absolutely from ascertainable

data, will at once illustrate the problem and furnish a guide to

research and generalization.

It will be admitted without controversy that the Constitution was the

creation of a certain number of men, and it was opposed by a certain

number of men. Now, if it were possible to have an economic biography of

all those connected with its framing and adoption,—perhaps about 160,000

men altogether,—the materials for scientific analysis and classification

would be available. Such an economic biography would include a list of

the real and personal property owned by all of these men and their

families: lands and houses, with incumbrances, money at interest,

slaves, capital invested in shipping and manufacturing, and in state and

continental securities.

Suppose it could be shown from the classification of the men who

supported and opposed the Constitution that there was no line of

property division at all; that is, that men owning substantially the

same amounts of the same kinds of property were equally divided on the

matter of adoption or rejection—it would then become apparent that the

Constitution had no ascertainable relation to economic groups or

classes, but was the product of some abstract causes remote from the

chief business of life—gaining a livelihood.

Suppose, on the other hand, that substantially all of the merchants,

money lenders, security holders, manufacturers, shippers, capitalists,

and financiers and their professional associates are to be found on one

side in support of the Constitution and that substantially all or the

major portion of the opposition came from the non-slaveholding farmers

and the debtors—would it not be pretty conclusively demonstrated that

our fundamental law was not the product of an abstraction known as “the

whole people,” but of a group of economic interests which must have

expected beneficial results from its adoption? Obviously all the facts

here desired cannot be discovered, but the data presented in the

following chapters bear out the latter hypothesis, and thus a reasonable

presumption in favor of the theory is created.

Of course, it may be shown (and perhaps can be shown) that the farmers

and debtors who opposed the Constitution were, in fact, benefited by the

general improvement which resulted from its adoption. It may likewise be

shown, to take an extreme case, that the English nation derived immense

advantages from the Norman Conquest and the orderly administrative

processes which were introduced, as it undoubtedly did; nevertheless, it

does not follow that the vague thing known as “the advancement of

general welfare” or some abstraction known as “justice” was the

immediate, guiding purpose of the leaders in either of these great

historic changes. The point is, that the direct, impelling motive in

both cases was the economic advantages which the beneficiaries expected

would accrue to themselves first, from their action. Further than this,

economic interpretation cannot go. It may be that some larger

world-process is working through each series of historical events; but

ultimate causes lie beyond our horizon.

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