Constitution, possessed the right that belongs to every political
society, of determining what persons should be permitted to enter its
territories. Each of them had a complete right to judge for itself how
far it would go, in recognizing or aiding the laws or institutions of
the other States. It is obvious, moreover, that States which are in
general independent of each other, but which propose to enter into
national relations with each other under a common government, for
certain great political and social ends, may have reasons for giving a
particular effect to each other's laws, or for sustaining each other's
institutions, which do not operate with societies not standing in such
a relation; and that these reasons may be of a character so grave and
important, as to amount to a moral obligation. Thus independent and
disconnected nations are ordinarily under no obligation to support or
guarantee each other's forms of government. But the American States,
in entering into the new Union under their national Constitution,
found that a republican form of government in every State was a thing
so essential to the welfare and safety of all of them, as to make it
both a necessity and a duty for all to guarantee that form of
government to each other. In the same way, although nations in
general do not recognize the relation of master and servant prevailing
by the law of another country, so far as to stipulate for the
surrender of persons escaping from that relation, the American States
found themselves surrounded by circumstances so imperative, as to make
it both a necessity and a duty to make with each other that
stipulation. These circumstances I shall now briefly state.
I have already referred to all the known proceedings in the Convention
on this subject, and have stated to what extent those proceedings
justify the opinion that the Constitution could not have been formed
without this provision.[372] But there is higher evidence both of its
necessity and its propriety than anything that may have been said by
individuals or delegations. The States were about to establish a more
perfect Union, under a peculiar form of national government, the
effect of which would necessarily bring them into closer relations
with each other, multiplying greatly the means and opportunities of
intercourse, and enabling them to act on each other's internal
condition with an influence that would be nearly irresistible, unless
it should be arrested by constitutional barriers. Among the features
of their internal condition, the relation of master and servant, or
the local institution of servitude, was one that must either be placed
under national cognizance, or be left exclusively to the local
authority of each State. There was no middle or debatable ground,
which it could with safety be suffered to occupy. The African race,
although scattered throughout all of the States, was placed in very
different circumstances in different parts of the country. There could
have been no national legislation with respect to that race,
concerning the time or mode of emancipation, the tenure of the
master's right, or the treatment of the slave, that would not have
been forced to adapt itself to an almost endless variety of
circumstances in different localities. At the same time, it was one of
the fundamental principles on which the whole Constitution was
proposed to be founded, that, where the national authority could not
furnish a uniform rule, its legislative power was not to extend.
Whatever required one rule in Massachusetts and another rule in
Virginia, for the exigencies of society, was necessarily left to the
separate authority of the respective States. It was upon matters on
which the States could not legislate alike, but on which the national
power could furnish a safe and advantageous uniform rule, that the
want of a national Constitution was felt, and for these alone was its
legislative power to be created.
We may suppose, then, that the framers of the Constitution had sought
to bring the relation of master and servant, or the condition of the
African race, within the States, under the cognizance of national
legislation; and we may imagine, for the purposes of the argument,
that consent had been given by every one of the States. The power
must have remained dormant, or its exercise would have been positively
mischievous. It never could have been exercised beneficially for
either of the two races; not only because it could not have followed
any uniform system, but because the confusions and jealousies which
must have attended any attempt to legislate specially, must either
have totally obstructed the power, or must have made its exercise
absolutely pernicious. These consequences, which the least reflection
will reveal, may serve to show us, far better than any declarations or
debates, why the framers of the Constitution studiously avoided
acquiring any power over the institution of slavery in the
States;--why the representatives of one class of States could not have
consented to give, and the representatives of another class could
never have desired to obtain, such a power for the national
Constitution.
But it may be asked,--and the question is often prompted by a feeling
of pity towards individual cases of hardship,--Why did not the framers
of the Constitution content themselves with the negative position,
which leaves the institution of slavery to the uncontrolled direction
of every State in which it is found? Why did they establish a rule
that obtains nowhere else among distinct communities, and require that
the fugitive from this relation of a purely local character, who has
committed no crime, and has fled only to acquire a natural liberty,
shall be restored to the dominion of the local law which declares him
to be a slave? Why should the States which had abolished, or were
about to abolish, this relation, consent to the use of force within
their own territories, for the purpose of upholding the relation in
other States? These questions are pertinent to the estimate which
mankind may be called upon to form concerning the provisions of our
national Constitution, and they admit of an answer.
The most material answer to them is, that, without some stipulation on
the part of the States where slavery was not to exist that their free
territory should not be made the means of a practical interference
with the relation in other States, the mere concession of the abstract
principle that slavery was to be exclusively under the control of
State authority would have been of no real value to any one of the
States, or to any of their inhabitants, of either race. But some
active security for this principle was of the utmost importance, not
merely as a concession which would secure the formation of the new
Union, but as a means to secure the beneficent working of the
Constitution after its acceptance had been obtained. It was as
important to the black race as it was to the whites; for it is not to
be doubted, that the continuance of a division into separate States,
and the firm maintenance of an exclusive local authority over the
domestic relations of their inhabitants, have been the cause, under
the Divine Providence, of a far higher civilization, and consequently
of a far better condition of the subjected race, than could have been
attained in the same localities if the States had been in all respects
resolved into one consolidated republic.
Let the reader spread before him the map of the thirteen republics of
1787, and mark upon each of them the relative numbers of their white
and colored inhabitants, and then efface the boundaries of the States.
Let him imagine all legislative power, all the superintending care of
government, withdrawn into a central authority, whose seat must have
been somewhere near the centre of the free white population. Let him
observe how that population must have tended away from the regions
where the labor of slaves would be most productive, and how dense the
slave populations must there have become. All that now constitutes the
pride of men in their separate State, that induces to residence and
makes it the home of their affections, would have passed away; and at
the same time, vast tracts of wonderful fertility must have retained
the African, and with him scarcely any white man but the speculator,
the overseer, and a solitary tradesman. Into such regions as those,
the national authority could not have penetrated with success.
Legislation would have wanted the necessary machinery, by which to
reach and elevate the condition of society at such remote extremities
from the centre. A more than Russian despotism would not have sufficed
to carry the authority of government and the restraints of law into
communities so depopulated of freemen, so filled with slaves, and so
far removed from the seat of power.
But now let the same map be again unfolded, with all the lines that
mark the distinct sovereignties of the States. In each of them there
is a complete and efficient government. Each has its history, unbroken
since the first settlers laid the foundations of a State. In each
there is a centre of civilization, a source of law, and the public
conscience of an organized self-governing community. Each of them can
act, and does act, upon the condition of the African race within its
own limits, according to its own judgment of the exigencies of the
case; and it is a fact capable of easy verification, that, in the
progress of three quarters of a century, this local power has effected
for that race what no national legislature could have accomplished.
For, if we look back to the period when the Constitution of the United
States was adopted, and suppose it to have acquired the means of
acting on the institution of slavery within the States, we shall see
that, if the national authority had approached the subject of
emancipation at all, it must have applied the same rule in South
Carolina as in Pennsylvania, and at the same time. But the
emancipation of the half a million of slaves held in widely different
proportions in the various subdivisions of the country, or of their
still more numerous descendants, by a single and uniform measure
comprehending them all, would at no time since the Constitution was
adopted have been a merciful or defensible act. Nothing could have
remained, therefore, for the national power to do, but to attempt such
legislation as might tend to regulate and ameliorate the condition of
servitude; and such legislation must have been wholly ineffectual, and
would soon have been abandoned, or been superseded by schemes that
must have increased the evils which they aimed to remove.
In thus placing a high value upon the exclusive power of the separate
States over this the most delicate and embarrassing of all the social
problems involved in their destiny, I have not forgotten that, since
the adoption of the national Constitution, nine slave States have been
added to the Union, and that the slaves have increased to more than
three millions. This increase, however, has not been in a greater
_ratio_ than that of the white population, nor greater than it must
have been under any form of polity which the thirteen original States
might have seen fit to adopt in the year 1787, unless that polity had
had a direct tendency to restrain the growth of the country, and to
prevent the settlement of new regions.[373] As it is, it is to be
remembered that, wherever the institution of slavery has gone, there
has gone with it the system of State government, the power and
organization of a distinct community, and consequently a better
civilization than could have been the lot of distant provinces of a
great empire, or distant territories of a consolidated republic.
These considerations will account for that apparent inconsistency
which has sometimes attracted the attention of those who view the
institutions of the United States from a distance, and without a
sufficient knowledge of the circumstances in which they originated.
It has been occasionally made a matter of reproach, that a people who
fought for political and personal freedom, who proclaimed in their
most solemn papers the natural rights of man, and who proceeded to
form a constitution of government that would best secure the blessings
of liberty to themselves and their posterity, should have left in
their borders certain men from whom those rights and blessings are
withheld. But in truth the condition of the African slaves was neither
forgotten nor disregarded by the generation who established the
Constitution of the United States; and it was dealt with in the best
and the only mode consistent with the facts and with their welfare.
The Constitution of the United States does not purport to secure the
blessings of liberty to all men within the limits of the Union, but to
the people who established it, and their posterity. It could not have
done more; for the slaveholding States could not, and ought not, to
have entered a Union which would have conferred freedom upon men
incapable of receiving it, or which would have required those States
to surrender to a central and insufficient power that trust of custody
and care which, in the providence of God, had been cast upon their
more effectual local authority. The reproach to which they would have
been justly liable would have been that which would have followed a
desertion of the duty they owed to those who could not have cared for
themselves, and whose fate would have been made infinitely worse by a
consolidation of all government into a single community, or by an
attempt to extend the principles of liberty to all men. The case is
reduced, therefore, to the single question, whether the people of the
United States should have foregone the blessings of a free republican
government, because they were obliged by circumstances to limit the
application of the maxims of liberty on which it rests. On this
question, they may challenge the judgment of the world.
FOOTNOTES:
[359] See and compare Art. IV. of the Confederation and Art. IV. § 2
of the Constitution.
[360] So far as the proceedings in the Convention are to be regarded
as a guide to construction, it appears clearly that the clause which
empowers Congress to "prescribe the manner in which such acts,
records, and proceedings shall be proved, _and the effect thereof_,"
was intended to give a power to declare the effect of the acts,
records, and judicial proceedings of any State, when offered in
evidence in another State, as well as to prescribe the mode of proving
them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion
on this clause in Story's Commentaries, §§ 1302-1313.
[361] Elliot, V. 487.
[362] July 23d. Elliot, V. 357.
[363] Art. XIV. of the report of the committee of detail.
[364] These are the words of Mr. Madison's Minutes. Elliot, V. 487.
This was on the 26th of August.
[365] Madison, _ut supra_. The motion was made by Butler and Pinckney,
according to Mr. Madison.
[366] By Wilson.
[367] By Sherman.
[368] Madison, _ut supra_. August 28.
[369] The reader who will consult a paper in the fourth volume of the
Collections of the Massachusetts Historical Society (p. 194), written
by Dr. Belknap, in 1795, will find that slavery, in the sense in which
the term is now commonly understood, existed in Massachusetts Bay as
early as 1630. The proof of it consists,--1. In the provisions of the
colonial laws and ordinances, which recognize and regulate a relation
very different from that of service for hire. On this subject, the
early colonists of Massachusetts held and practised the law of Moses.
They regarded it as lawful to _buy_ and _sell_ "slaves taken in lawful
war," or reduced to servitude by judicial sentence, and placed them
under the same privileges as those given by the Mosaic law. But they
punished man-_stealing_ capitally, re-enacting expressly the 16th
verse of the 21st chapter of Exodus; and when there were any negroes
in their jurisdiction who had been stolen, or "fraudulently" acquired
in Africa, they endeavored to send them back again. 2. In the actual
presence of negro slaves, brought from Africa, who had been "lawfully"
acquired, that is, by fair purchase from those who held them as
prisoners of war. These existed to some extent in the Colony in 1638,
and were numerous in 1673; and of course were included in all the
legislation of that period respecting service, being sometimes
described as "slaves," and sometimes by the more general and
comprehensive term of "servants."--Slavery by judicial sentence was
inflicted for no higher crimes than theft and burglary. Thus at a
Quarter Court holden at Boston the 4th day of the 10th month, 1638,
"John Hazlewood being found guilty of severall thefts and breaking
into severall houses, was censured to be severely whipped and
delivered up a _slave_ to whom the Court shall appoint." (Shurtleff's
Edition of Records of Massachusetts, I. 246.) Many of the Indians
taken prisoners in King Philip's war, who had formerly submitted to
the Colonial government and had been called "Praying Indians" from
their supposed conversion to Christianity, were adjudged guilty of
"rebellion," and were sold into slavery in foreign countries. Dr.
Belknap says that some of them found their way back again, and took a
severe revenge on the English in a subsequent war. (Hist. Soc. Coll.
_ut supra_.)
[370] Mr. Madison stated in the Convention of Virginia in which the
Constitution was ratified, that "this clause was expressly inserted,
to enable owners of slaves to reclaim them." (Elliot's Debates, III.
453.)
[371] August 29. Elliot, V. 492.
[372] I am not aware of any more positive evidence than that above
given in the text, that this clause of the Constitution was expressly
made in the Convention a condition of assent by any of the States.
[373] In 1790, the slaves numbered 697,897, and the whites 3,172,464.
In 1850, the slaves had increased to 3,204,313, and the whites to
19,533,068.
CHAPTER XVI.
REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.--GUARANTY OF REPUBLICAN
GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE
CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF
THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION.
The power and duty of the United States to guarantee a republican form
of government to each State, and to protect each State against
invasion and domestic violence, had been declared by a resolution, the
general purpose of which has been already described. It should be said
here, however, that the objects of such a provision were two; first,
to prevent the establishment in any State of any form of government
not essentially republican in its character, whether by the action of
a minority or of a majority of the inhabitants; second, to protect the
State against invasion from without, and against every form of
domestic violence.[374] When the committee of detail came to give
effect to the resolution, they prepared an article, which made it the
duty of the United States to guarantee to each State a republican form
of government, and to protect each State against invasion, without any
application from its authorities; and to protect the State against
domestic violence, on the application of its legislature.[375] No
change was made by the Convention in the substance of this article,
excepting to provide that the application, in a case of domestic
violence, may be made by the executive of the State, when the
legislature cannot be convened.[376]
It now remains for me to state what appears to have been the meaning
of the framers of the Constitution, embraced in these provisions. It
is apparent, then, from all the proceedings and discussions on this
subject, that, by guaranteeing a republican form of government, it was
not intended to maintain the existing constitutions of the States
against all changes. This would have been to exercise a control over
the sovereignty of the people of a State, inconsistent with the nature
and purposes of the Union. The people must be left entirely free to
change their fundamental law, at their own pleasure, subject only to
the condition, that they continue the republican form of government.
The question arises then, What is that form? Does it imply the
existence of some organic law, establishing the departments of a
government, and prescribing their powers, or does it admit of a form
of the body politic under which the public will may be declared from
time to time, either with or without the agency of any established
organs or representatives? Is it competent to a State to abolish
altogether that body of its fundamental law which we call its
Constitution, and to proceed as a mere democracy, enacting,
expounding, and executing laws by the direct action of the people, and
without the intervention of any representative system constituting
what is known as a government?
The Constitution of the United States assumes, in so many of its
provisions, that the States will possess organized governments, in
which legislative, executive, and judicial departments will be known
and established, that it must be taken for granted that the existence
of such agents of the public will is a necessary feature of a State
government, within the meaning of this clause. No State could
participate in the government of the Union, without at least two of
these agents, namely, a legislature and an executive; for the people
of a State, acting in their primary capacity, could not appoint a
Senator of the United States; nor fill a vacancy in the office of
Senator; nor appoint Electors of the President of the United States,
without the previous designation by a legislature of the mode in which
such Electors were to be chosen; nor apply to the government of the
United States to protect them against "domestic violence," through any
other agent than the legislature or the executive of the State. It is
manifest, therefore, that each State must have a government,
containing at least these distinct departments; and whether this
government is organized periodically, under mere laws perpetually
re-enacted, and subject to perpetual changes without reference to
forms, or under standing and fundamental laws, changeable only in a
prescribed form, and being so far what is called a constitution, it is
apparent that there must be a "form of government" possessed of these
distinct agencies.
There must be, moreover, not only this "form of government," but it
must be a "republican" form; and in order to determine the sense in
which this term qualifies the nature of the government in other
respects besides those already referred to, it is necessary to take
into view the previous history of American political institutions,
because that history shows what is meant, in the American sense, by a
"republican" government.
History, then, establishes the fact, that, in the American system of
government, the people are regarded as the sole original source of all
political authority; that all legitimate government must rest upon
their will. But it also teaches that the will of the people is to be
exercised through representative forms. For even in the exercise of
original suffrage, which has never been universal in any of the States
of the Union, and in the bestowal of power upon particular organs,
those who are regarded as competent to express the will of society
are, in that expression, deemed to represent all its members; and
those who, in the distribution of political functions, exercise the
sovereignty of the people, so far as it has been thus imparted to
them, exercise a representative function, to which they are appointed,
directly or indirectly, by popular suffrage, that may be more or less
restricted, according to the public will. It may be said, therefore,
with strictness, that in the American system a republican government
is one based on the right of the people to govern themselves, but
requiring that right to be exercised through public organs of a
representative character; and these organs constitute the government.
How much or how little power shall be imparted to this government,
what restrictions shall be imposed upon it, and what the precise
functions of its several departments shall be, with respect to the
internal concerns of the State, the Constitution of the United States
leaves untouched, except in a few particulars. It merely declares that
a government having the essential characteristics of an American
republican system shall be guaranteed by the United States; that is to
say, that no other shall be permitted to be established.
The provision by which the State is protected against domestic
violence was necessary to complete the republican character of the
system intended to be upheld. The Constitution of the United States
assumes that the governments of the States, existing when it goes into
operation, are rightfully in the exercise of the authority of the
State, and will so continue until they are changed. But it means that
no change shall be made by force, by public commotion, or by setting
aside the authority of the existing government. It recognizes the
right of that government to be protected against domestic violence; in
which expression is to be included every species of force directed
against that government, excepting the will of the people operating
to change it through the forms of constitutional action.
The next topic on which the Convention was required to act was the
question whether the Constitution should be made capable of amendment,
and in what mode amendments were to be proposed and adopted. The
Confederation, from its nature as a league between States otherwise
independent of each other, was made incapable of alteration excepting
by the unanimous consent of the States. It affords a striking
illustration of the different character of the government established
by the Constitution, that a mode was devised by which changes in the
organic law could become obligatory upon all the States, by the action
of a less number than the whole.
The frame of government which the members of the Convention were
endeavoring to establish, if once adopted, was to endure, as a
continuing power, indefinitely; and that it might, as far as possible,
be placed beyond the danger of destruction, it was necessary to make
it subject to such peaceful changes as experience might render proper,
and which, by being made capable of introduction by the organic law
itself, would preserve the identity of the government. The existence
and operation of a prescribed method of changing particular features
of a government mark the line between amendment and revolution, and
render a resort to the latter, for the purpose of melioration or
reform, save in extreme cases of oppression, unnecessary. According to
our American theory of government, revolution and amendment both rest
upon the doctrine, that the people are the source of all political
power, and each of them is the exercise of an ultimate right. But this
right is exercised, in the process of amendment, in a prescribed form,
which preserves the continuity of the existing government, and changes
only such of its fundamental rules as require revision, without the
destruction of any public or private rights that may have become
vested under the former rule. Revolution, on the contrary, proceeds
without form, is the violent disruption of the obligations resting on
the authority of the former government, and terminates its existence
often, without saving any of the rights which may have grown up under
it. The question, therefore, whether the Constitution should be made
capable of amendment, was identical with the question whether some
mode of amending it should be prescribed in the instrument itself,
since, without an ascertained and limited method of proceeding, all
change becomes, in effect, revolution; and this was accordingly, in
substance, the same as the question whether revolution should be the
only method by which the American people could ever modify their
system of government, when in the progress of time changes might
become indispensable.
It was originally proposed in the Convention, that provision should be
made for amending the Constitution, without requiring the assent of
the national legislature.[377] But this was justly regarded as a very
important question, and the Convention came to no other decision,
when the committee of detail were instructed, than to declare that
provision ought to be made for amending the Constitution whenever it
should seem necessary.[378] The mode selected by the committee, and
embraced in the first draft of the instrument, was to have a
convention called by the Congress, when applied for by the
legislatures of two thirds of the States; but they did not declare
whether the legislatures were to propose amendments and the convention
was to adopt them, or whether the convention was both to propose and
adopt them, or only to propose them for adoption by some other body or
bodies not specified. There lay, therefore, at the basis of this whole
subject, the very grave question whether there should ever be another
national convention, to act in any manner upon or in reference to the
national Constitution, after its adoption, and if so, what its
functions and authority were to be. There would follow, also, the
further question, whether this should be the sole method in which the
Constitution should be made capable of amendment. Several reasons
concurred to render it highly inexpedient to make a resort to a
convention the sole method of reaching amendments, and we can now see
that the decision that was made on this subject was a wise one. It was
a rare combination of circumstances that gave to the first national
Convention its success. The war of the Revolution, and the exigencies
which it caused, had produced a class of men, possessing an influence,
as well as qualifications for the duty assigned to them, that would
not be likely to be again witnessed. Of these men, Washington was the
head; and no second Washington could be looked for. The peculiar
crisis, too, occasioned by the total failure of the Confederation,
notwithstanding the apparent fitness and actual necessity of that
government at the time of its formation, could never occur again.
There were, moreover, but thirteen States in the confederacy, nearly
all of which dated their settlement and their existence as political
communities from about the same period, and all had passed through the
same revolutionary history. But the number of the States was evidently
destined to be greatly increased, and the new members of the Union
would also be likely to be very different in character from the old
States. It was not probable, therefore, that the time would ever
arrive when the people of the United States would feel that another
national convention, for the purpose of acting on the national
Constitution, would be safe or practicable. Still, it would not have
been proper to have excluded the possibility of a resort to this
method of amendment; since the national legislature might itself be
interested to perpetuate abuses springing from defects in the
Constitution, and to incur the hazards attending a convention might
become a far less evil than the continuance of such abuses, or the
failure to make the necessary reforms.
But it was indispensable that the precise functions and authority of
such a convention should be defined, lest its action might result in
revolution. The method of amendment proposed by the committee of
detail did not enable the Congress to call a convention on their own
motion, and did not prescribe the action of such a body, or provide
any mode in which the amendments proposed by it should be adopted.
Hamilton and Madison both opposed this plan;--the former, because it
was inadequate, and because he considered it desirable that a much
easier method should be devised for remedying the defects that would
become apparent in the new system; the latter, on account of the
vagueness of the plan itself. Accordingly, Mr. Madison brought
forward, as a substitute, a method of proceeding, which, with some
modifications, became what is now the fifth article of the
Constitution; namely, that the Congress, whenever two thirds of both
houses shall deem it necessary, shall propose amendments; or, on the
application of the legislatures of two thirds of the States, shall
call a convention for proposing amendments. In either case, the
amendments proposed are to become valid as part of the Constitution,
when ratified by the legislatures of three fourths of the States, or
by conventions in three fourths of the States, as the one or the other
mode of ratification may be proposed by the Congress.[379]
But when this provision had been agreed upon, the grave question
arose, whether the power of amendment was to be subjected to any
limitations. There were two objects, in respect to which, as we have
more than once had occasion to see, different classes of the States
felt great jealousy. One of them had been covered by the stipulations
that the States should not be prohibited before the year 1808 from
admitting further importations of slaves, and that no capitation or
other direct tax should be laid unless in proportion to the census or
enumeration of the inhabitants of the States, in which three fifths
only of the slaves were included.[380] The other was the equality of
representation in the Senate, so long and at length so successfully
contended for by the smaller States.[381] At the instance of Mr.
Rutledge of South Carolina, a proviso was added, which forbade any
amendment before the year 1808 affecting in any manner the clauses
relating to the slave-trade and the capitation or other direct
taxes.[382] This proviso having now become inoperative, those clauses
are, like others, subject to amendment. At the instance of Mr. Sherman
of Connecticut, a restriction that is of perpetual force was placed
upon the power of amendment, which prevents each State from being
deprived of its equality of representation in the Senate, without its
consent.[383]
The oath or affirmation to support the Constitution was provided for
by the committee of detail, in accordance with the resolution
directing that it should be taken by the members of both houses of
Congress and of the State legislatures, and by all executive and
judicial officers of the United States and of the several States; and
for the purpose of for ever preventing any connection between church
and state, and any scrutiny into men's religious opinions, the
Convention unanimously added the clause, that "no religious test shall
ever be required as a qualification to any office or public trust
under the United States."[384]
We are next to ascertain in what mode the Constitution, which had thus
been framed, was to provide for its own establishment and authority.
There is a great difference between the importance of this question,
as it presented itself to the framers of the Constitution, and its
importance to this or any succeeding generation. To us it is chiefly
interesting because it displays the basis of a government which has
been established for seventy years over the thirteen original States
of the confederacy, and is now acknowledged by more than twice the
number of those original States. To those who made the Constitution,
and to the people who were to vote upon it and to put it into
operation, the mode in which it was to become the organic law of the
Union was a topic of serious import and delicacy. It involved the
questions, of what course would be politic with reference to the
people; of what would be practicable; of the initiation of the new
government without force; of its establishment on a firm, just, and
legitimate authority; and of its right to supersede the Confederation,
without a breach of faith toward the members of that body by whose
inhabitants the new system might be rejected.
The Convention had already decided that the Constitution must be
ratified by the people of the States; but a difficulty had all along
existed, in the opinions held by some of the members respecting the
compact then subsisting between the States, which they regarded as
indissoluble but by the consent of all the parties to it. The
resolution, which the committee of detail were instructed to carry
out, had declared that the new plan of government should first be
submitted to the approbation of the existing Congress, and then to
assemblies of representatives to be recommended by the State
legislatures and to be expressly chosen by the people to consider and
decide upon it. But this direction embraced no decision of the
question, whether the ratification by the people of a less number than
all the States should be sufficient for putting the government into
operation. If the people of a smaller number than the whole of the
States could establish this form of government, what was to be its
future relation to the States which might reject or refuse to consider
it? Could any number of the States thus withdraw themselves from the
Confederation, and establish for themselves a new general government,
and could that government have any authority over the rest? Various
and widely opposite theories were maintained. One opinion was, that
all the States must accept the Constitution, or it would be a
nullity;--another, that a majority of the States might establish it,
and so bind the minority, upon the principle that the Union was a
society subject to the control of the greater part of its
members;--still another, that the States which might ratify it would
bind themselves, but no one else.
The truth with regard to these questions, which perplexed the minds of
men in that assembly somewhat in proportion to their acuteness and
their proneness to metaphysical speculations, was in reality not very
far off. The Articles of Confederation had certainly declared that no
alteration should be made in any of them, unless first proposed by the
Congress, and afterwards unanimously agreed to by the State
legislatures. But in two very important particulars the Convention had
already passed beyond what could be deemed an alteration of those
Articles. They had prepared and were about to propose a system of
government that would not merely alter, but would abolish and
supersede, the Confederation; and they had determined to obtain, what
they regarded as a legitimate authority for this purpose, the consent
of the people of the States, by whose will the State governments
existed, from whom those governments derived their authority to enter
into the compact of the Confederation, and whose sovereign right to
ameliorate their own political condition could not be disputed. This
system they intended should be offered to all. The refusal of some
States to accept it could not, upon principles of natural justice and
right, oblige the others to remain fettered to a government which had
been pronounced by twelve of the thirteen legislatures to be
defective and inadequate to the exigencies of the Union. At the same
time, the independent political existence of the people of each State
made it impossible to treat them as a minority subject to the power of
such majority as would be formed by the States that might adopt the
Constitution. If the people of a State should ratify it, they would be
bound by it. If they should refuse to ratify it, they would simply
remain out of the new Union that would be formed by the rest. It was
therefore determined that the Constitution should undertake to be in
force only in those States by whose inhabitants it might be
adopted.[385]
Then came the question, in what mode the assent of the people of the
States was to be given. The constitution of one of the States[386]
provided that it should be altered only in a prescribed mode; and it
was said that the adoption of the Constitution now proposed would
involve extensive changes in the constitution of every State. This was
equally true of the constitutions of those States which had provided
no mode for making such changes, and in which the State officers were
all bound by oath to support the existing constitution. These
difficulties, however, were by no means insurmountable. It was
universally acknowledged that the people of a State were the fountain
of all political power, and if, in the method of appealing to them,
the consent of the State government that such appeal should be made
were involved, there could be no question that the proceeding would
be in accordance with what had always been regarded as a cardinal
principle of American liberty. For, since the birth of that liberty,
it had been always assumed that, when it has become necessary to
ascertain the will of the people on a new exigency, it is for the
existing legislative power to provide for it by an ordinary act of
legislation.[387]
Whatever changes, therefore, in the State constitutions might become
necessary in consequence of the adoption of the national Constitution,
it would be a just presumption that the will of the people, duly
ascertained by their legislature, had decided, by that adoption, that
such changes should be made; and the formal act of making them could
follow at any time when arrangements might be made for it. But if no
mode of ratification of the national Constitution were to be
prescribed, and it were left to each State to act upon it in any
manner that it might prefer, there would be no uniformity in the mode
of creating the new government in the different States; and if the
Convention and the Congress were to refer its adoption to the State
legislatures, it would not rest on the direct authority of the people.
For these reasons, the Convention adhered to the plan of having the
Constitution submitted directly to assemblies of representatives of
the people in each State, chosen for the express purpose of deciding
on its adoption.[388]
There was still another question, of great practical importance, to
be determined. Was the Constitution to go into operation at all,
unless adopted by all the States, and if so, what number should be
sufficient for its establishment? It appeared clearly enough, that to
require a unanimous adoption would defeat all the labors of the
Convention. Rhode Island had taken no part in the formation of the
Constitution, and could not be expected to ratify it. New York had not
been represented for some weeks in the Convention, and it was at least
doubtful how the people of that State would receive the proposed
system, to which a majority of their delegates had declared themselves
to be strenuously opposed.[389] Maryland continued to be present in
the Convention, and a majority of her delegates still supported the
Constitution; but Luther Martin confidently predicted its rejection by
the State, and it was evident that his utmost energies would be put
forth against it. Under these circumstances, to have required a
unanimous adoption by the States would have been fatal to the
experiment of creating a new government. Some of the members were in
favor of such a number as would form both a majority of the States and
a majority of the people of the United States. But there was an idea
familiar to the people, in the number that had been required under the
Confederation upon certain questions of grave importance; and in order
that the Constitution might avail itself of this established usage, it
was determined that the ratifications of the conventions of _nine_
States should be sufficient to establish the Constitution between the
States that might so ratify it.[390]
The Constitution, as thus finally prepared, received the formal assent
of the States in the Convention, on the last day of the session.[391]
The great majority of the members desired that the instrument should
go forth to the public, not only with an official attestation that it
had been agreed upon by the States represented, but also with the
individual sanction and signatures of their delegates. Three of the
members present, however, Randolph and Mason of Virginia, and Gerry of
Massachusetts, notwithstanding the proposed form of attestation
contained no personal approbation of the system, and signified only
that it had been agreed to by the unanimous consent of the States then
present, refused to sign the instrument.[392] The objections which
these gentlemen had to different features of the Constitution would
have been waived, if the Convention had been willing to take a course
quite opposite to that which had been thought expedient. They desired
that the State conventions should be at liberty to propose amendments,
and that those amendments should be finally acted upon by another
general convention.[393] The nature of the plan, however, and the form
in which it was to be submitted to the people of the States, made it
necessary that it should be adopted or rejected as a whole, by the
convention of each State. As a process of amendment by the action of
the Congress and the State legislatures had been provided in the
instrument, there was the less necessity for holding a second
convention. The State conventions would obviously be at liberty to
propose amendments, but not to make them a condition of their
acceptance of the government as proposed.
A letter having been prepared to accompany the Constitution, and to
present it to the consideration and action of the existing Congress,
the instrument was formally signed by all the other members then
present. The official record sent to the Congress of the resolutions,
which directed that the Constitution be laid before that body, recited
the presence of the States of New Hampshire, Massachusetts,
Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia. New York was not regarded
as officially present; but in order that the proceedings might have
all the weight that a name of so much importance could give to them,
in the place that should have been filled by his State, was recited
the name of "Mr. Hamilton from New York." The prominence thus given to
the name of Hamilton, by the absence of his colleagues, was
significant of the part he was to act in the great events and
discussions that were to attend the ratification of the instrument by
the States. His objections to the plan were certainly not less grave
and important than those which were entertained by the members who
refused to give to it their signatures; but like Madison, like
Pinckney and Franklin and Washington, he considered the choice to be
between anarchy and convulsion, on the one side, and the chances of
good to be expected of this plan, on the other. Upon this issue, in
truth, the Constitution went to the people of the United States. There
is a tradition, that, when Washington was about to sign the
instrument, he rose from his seat, and, holding the pen in his hand,
after a short pause, pronounced these words:--"Should the States
reject this excellent Constitution, the probability is that an
opportunity will never again offer to cancel another in peace,--the
next will be drawn in blood."[394]
FOOTNOTES:
[374] Elliot, V. 332, 333.
[375] First draft of the Constitution, Art. XVIII. Elliot, V. 381.
[376] Constitution, Art. IV. § 4.
[377] Elliot, V. 157.
[378] Elliot, V. 376.
[379] Elliot, V. 530-532.
[380] Constitution, Art. I § 9.
[381] Ibid. Art. I. § 3.
[382] Elliot, V. 532.
[383] Ibid. 551, 552. Constitution, Art. I § 3.
[384] Constitution, Art. VI.
[385] Elliot, V. 499.
[386] Maryland.
[387] Works of Daniel Webster, VI. 227.
[388] The vote, however, was only six States to four. Elliot, V. 500.
[389] Two of the New York delegates, Messrs. Yates and Lansing, left
the Convention on the 5th of July. Hamilton had previously returned to
the city of New York, on private business. He left June 29 and
returned August 13. It appears from his correspondence that he was
again in the city of New York on the 20th of August, and that he
remained there until the 28th. On the 6th of September he was in the
Convention. The vote of the State was not taken in the Convention
after the retirement of Yates and Lansing.
[390] 1 Elliot, V. 499-501. The article embodying this decision was
the 21st in the report of the committee of detail. It became, on the
revision, Article VIII. of the Constitution.
[391] September 17.
[392] This form of attestation had been adopted in the hope of gaining
the signatures of all the members, but without success.
[393] Mr. Madison has given the principal grounds of objection which
these gentlemen felt to the Constitution. It is not necessary to
repeat them here, as they were nearly all met by the subsequent
amendments, so far as they were special, and did not relate to the
general tendency of the system. (See Madison, Elliot, V. 552-558.)
[394] My authority for this anecdote is the Pennsylvania Journal of
November 14, 1787, where it was stated by a writer who dates his
communication from Elizabethtown, November 7.
BOOK V.
ADOPTION OF THE CONSTITUTION.
CHAPTER I.
GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT
BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS,
NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW
HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS.
The national Convention was dissolved on the 14th of September. The
state of expectation and anxiety throughout the country during its
deliberations, and at the moment of its adjournment, will appear from
a few leading facts and ideas, which illustrate the condition of the
popular mind when the Constitution made its appearance.
The secrecy with which the proceedings of the Convention had been
conducted, the nature of its business, and the great eminence and
personal influence of its principal members, had combined to create
the deepest solicitude in the public mind in all the chief centres of
population and intelligence throughout the Union. An assembly of many
of the wisest and most distinguished men in America had been engaged
for four months in preparing for the United States a new form of
government, and the public had acquired no definite knowledge of
their transactions, and no information respecting the nature of the
system they were likely to propose. Under these circumstances, we may
expect to find the most singular rumors prevailing during the session
of the Convention, and a great excitement in the public mind in many
localities, when the result was announced. Among the reports that were
more or less believed through the latter part of the summer, was the
idle one that the Convention were framing a system of monarchical
government, and that the Bishop of Osnaburg was to be sent for, to be
the sovereign of the new kingdom.
Foolish as it may appear to us, this story occasioned some real alarm
in its day. It is to be traced to a favorite idea of that class of
Americans who had either been avowed "Tories" during the Revolution,
or had secretly felt a greater sympathy with the mother country than
with the land of their birth, and who were at this period generally
called "Loyalists." Some of these persons had taken no part, on either
side, during the Revolutionary war, and had abstained from active
participation in public affairs since the peace. They were all of that
class of minds whose tendencies led them to the belief that the
materials for a safe and efficient republican government were not to
be found in these States, and that the public disorders could be
corrected only by a government of a very different character. Their
feelings and opinions carried them towards a reconciliation with
England, and their grand scheme for this purpose was to invite hither
the titular Bishop of Osnaburg.[395]
Their numbers were not large in any of the States; but the feeling of
insecurity and the dread of impending anarchy were shared by others
who had no particular inclination towards England; and it is not to
be doubted that the Constitution, among the other mischiefs which it
averted, saved the country from a desperate attempt to introduce a
form of government which must have been crushed beneath commotions
that would have made all government, for a long time at least,
impracticable. The public anxiety, created by the reports in
circulation, had reached such a point in the month of August,--when
it was rumored that the Convention had recently given a higher tone to
the system they were preparing,--that members found it necessary to
answer numerous letters of inquiry from persons who had become
honestly alarmed. "Though we cannot affirmatively tell you," was their
answer, "what we are doing, we can negatively tell you what we are
_not_ doing:--we never once thought of a king."[396]
All doubt and uncertainty were dispelled, however, by the publication
of the Constitution in the newspapers of Philadelphia, on the 19th of
September. It was at once copied into the principal journals of all
the States, and was perhaps as much read by the people at large as any
document could have been in the condition of the means of public
intelligence which a very imperfect post-office department then
afforded. It met everywhere with warm friends and warm opponents; its
friends and its opponents being composed of various classes of men,
found, in different proportions, in almost all of the States. Those
who became its advocates were, first, a large body of men, who
recognized, or thought they recognized, in it the admirable system
which it in fact proved to be when put into operation; secondly, those
who, like most of the statesmen who made it, believed it to be the
best attainable government that could be adopted by the people of the
United States, overlooking defects which they acknowledged, or
trusting to the power of amendment which it contained; and, thirdly,
the mercantile and manufacturing classes, who regarded its commercial
and revenue powers with great favor. Its adversaries were those who
had always opposed any enlargement of the federal system; those whose
consequence as politicians would be diminished by the establishment of
a government able to attract into its service the highest classes of
talent and character, and presenting a service distinct from that of
the States; those who conscientiously believed its provisions and
powers dangerous to the rights of the States and to public liberty;
and, finally, those who were opposed to any government, whether State
or national or federal, that would have vigor and energy enough to
protect the rights of property, to prevent schemes of plunder in the
form of paper money, and to bring about the discharge of public and
private debts. The different opponents of the Constitution being
animated by these various motives, great care should be taken by
posterity, in estimating the conduct of individuals, not to confound
these classes with each other, although they were often united in
action.
As the Constitution presented itself to the people in the light of a
proposal to enlarge and reconstruct the system of the Federal Union,
its advocates became known as the "Federalists," and its adversaries
as the "Anti-Federalists." This celebrated designation of Federalist,
which afterwards became so renowned in our political history as the
name of a party, signified at first nothing more than was implied in
the title of the essays which passed under that name, namely, an
advocacy of the Constitution of the United States.[397]
Midway between the active friends and opponents of the Constitution
lay that great and somewhat inert mass of the people, which, in all
free countries, finally decides by its preponderance every seemingly
doubtful question of political changes. It was composed of those who
had no settled convictions or favorite theories respecting the best
form of a general government, and who were under the influence of no
other motive than a desire for some system that would relieve their
industry from the oppressions under which it had long labored, and
would give security, peace, and dignity to their country. Ardently
attached to the principles of republican government and to their
traditionary maxims of public liberty, and generally feeling that
their respective States were the safest depositaries of those
principles and maxims, this portion of the people of the United States
were likely to be much influenced by the arguments against the
Constitution founded on its want of what was called a Bill of Rights,
on its omission to secure a trial by jury in civil cases, and on the
other alleged defects which were afterwards corrected by the first ten
Amendments. But they had great confidence in the principal framers of
the instrument, an unbounded reverence for Washington and Franklin,
and a willingness to try any experiment sanctioned by men so
illustrious and so entirely incapable of any selfish or unworthy
purpose.[398] There were, however, considerable numbers of the
people, in the more remote districts of several of the States, who had
a very imperfect acquaintance, if they had any, with the details of
the proposed system, at the time when their legislatures were called
upon to provide for the assembling of conventions; for we are not to
suppose that what would now be the general and almost instantaneous
knowledge of any great political event or topic, could have taken
place at that day concerning the proposed Constitution of the United
States. Still it was quite generally understood before its final
ratification in the States where its adoption was postponed to the
following year, where information was most wanted, and where the chief
struggles occurred; and it is doubtless correct to assert that its
adoption was the intelligent choice of a majority of the people of
each State, as well as the choice of their delegates, when their
conventions successively acted upon it.
On the adjournment of the Convention, Madison, King, and Gorham, who
held seats in the Congress of the Confederation, hastened to the city
of New York, where that body was then sitting. They found eleven
States represented.[399] But they found also that an effort was likely
to be made, either to arrest the Constitution on its way to the people
of the States, or to subject it to alteration before it should be sent
to the legislatures. It was received by official communication from
the Convention in about ten days after that assembly was dissolved.
All that was asked of the Congress was, that they should transmit it
to their constituent legislatures for their action. The old objection,
that the Congress could with propriety participate in no measure
designed to change the form of a government which they were appointed
to administer, having been answered, Richard Henry Lee of Virginia
proposed to amend the instrument by inserting a Bill of Rights, trial
by jury in civil cases, and other provisions in conformity with the
objections which had been made in the Convention by Mr. Mason.
To the address and skill of Mr. Madison, I think, the defeat of this
attempt must be attributed. If it had succeeded, the Constitution
could never have been adopted by the necessary number of States; for
the recommendation of the Convention did not make the action of the
State legislatures conditional upon their receiving the instrument
from the Congress; the legislatures would have been at liberty to send
the document published by the Convention to the assemblies of
delegates of the people, without adding provisions that might have
been added by the Congress; some of them would have done so, while
others would have followed the action of the Congress, and thus there
would have been in fact two Constitutions before the people of the
States, and their acts of ratification would have related to
dissimilar instruments. This consideration induced the Congress, by a
unanimous vote of the States present, to adopt a resolution which,
while it contained no approval of the Constitution, abstained from
interfering with it as it came from the Convention, and transmitted
it to the State legislatures, "in order to be submitted to a
convention of delegates chosen in each State by the people thereof, in
conformity to the resolves of the Convention made and provided in that
case."[400]
In Massachusetts, the Constitution was well received, on its first
publication, so far as its friends in the central portion of the Union
could ascertain. Mr. Gerry was a good deal censured for refusing to
sign it, and the public voice, in Boston and its neighborhood,
appeared to be strongly in its favor. But in a very short time three
parties were formed among the people of the State, in such proportions
as to make the result quite uncertain. The commercial classes, the men
of property, the clergy, the members of the legal profession,
including the judges, the officers of the late army, and most of the
people of the large towns, were decidedly in favor of the
Constitution. This party amounted to three sevenths of the people of
the State. The inhabitants of the district of Maine, who were then
looking forward to the formation of a new State, would be likely to
vote for the new Constitution, or to oppose it, as they believed it
would facilitate or retard their wishes; and this party numbered two
sevenths. The third party consisted of those who had been concerned in
the late insurrection under Shays, and their abettors; the majority of
them desiring the annihilation of debts, public and private, and
believing that the proposed Constitution would strengthen all the
rights of property. Their numbers were estimated at two sevenths of
the people.[401] It was evident that a union of the first two parties
would secure the ratification of the instrument, and a union of the
last two would defeat it. Great caution, conciliation, and good temper
were, therefore, required, on the part of its friends. The influence
of Massachusetts on Virginia, on New York, and indeed on all the
States that were likely to act after her, would be of the utmost
importance. The State convention was ordered to assemble in January.
In New York, as elsewhere, the first impressions were in favor of the
Constitution. In the city, and in the southern counties generally, it
was from the first highly popular. But it was soon apparent that the
whole official influence of the executive government of the State
would be thrown against it. There had been a strong party in the
State, ever since its refusal to bestow on the Congress the powers
asked for in the revenue system of 1783, who had regarded the Union
with jealousy, and steadily opposed the surrender to it of any further
powers. Of this party, the Governor, George Clinton, was now the head;
and the government of the State, which embraced a considerable amount
of what is termed "patronage," was in their hands. Two of the
delegates of the State to the national Convention, Yates and Lansing,
had retired from that body before the Constitution was completed, and
had announced their opposition to it in a letter to the Governor,
which, from its tone and the character of its objections, was likely
to produce a strong impression on the public mind. It became evident
that the Constitution could be carried in the State of New York in no
other way than by a thorough discussion of its merits,--such a
discussion as would cause it to be understood by the people, and would
convince them that its adoption was demanded by their interests. For
this purpose, Hamilton, Madison, and Jay, under the common signature
of Publius, commenced the publication of the series of essays which
became known as The Federalist. The first number was issued in the
latter part of October.
In January, the Governor presented the official communication of the
instrument from the Congress to the legislature, with the cold remark,
that, from the nature of his official position, it would be improper
for him to have any other agency in the business than that of laying
the papers before them for their information. Neither he nor his
party, however, contented themselves with this abstinence. After a
severe struggle, resolutions ordering a State convention to be elected
were passed by the bare majorities of three in the Senate and two in
the House, on the first day of February, 1788. The elections were held
in April; and when the result became known, in the latter part of May,
it appeared that the Anti-Federalists had elected two thirds of the
members of the Convention, and that probably four sevenths of the
people of the State were unfriendly to the Constitution. Backed by
this large majority, the leaders of the Anti-Federal party intended to
meet in convention at the appointed time, in June, and then to adjourn
until the spring or summer of 1789. Their argument for this course
was, that, if the Constitution had been adopted in the course of a
twelvemonth by nine other States, New York would have an opportunity
to witness its operation and to act according to circumstances. They
would thus avoid an immediate rejection,--a step which might lead the
Federalists to seek a separation of the southern from the northern
part of the State, for the purpose of forming a new State. On the
other hand, the Federalists rested their hopes upon what they could do
to enlighten the public at large, and upon the effect on their
opponents of the action of other States, especially of Virginia, whose
convention was to meet at nearly the same time. The Convention of New
York assembled at Poughkeepsie,[402] on the 17th of June, 1788.
However strong the opposition in other States, it was to be in
Virginia far more formidable, from the abilities and influence of its
leaders, from the nature of their objections, and from the peculiar
character of the State. Possessed of a large number of men justly
entitled to be regarded then and always as statesmen, although many of
them were prone to great refinements in matters of government; filled
with the spirit of republican freedom, although its polity and
manners were marked by several aristocratic features; having, on the
one hand, but few among its citizens interested in commerce, and still
fewer, on the other hand, of those levelling and licentious classes
which elsewhere sought to overturn or control the interests of
property; ever ready to lead in what it regarded as patriotic and
demanded by the interests of the Union, but jealous of its own dignity
and of the rights of its sovereignty;--the State of Virginia would
certainly subject the Constitution to as severe an ordeal as it could
undergo anywhere, and would elicit in the discussion all the good or
the evil that could be discovered in the examination of a system
before it had been practically tried. The State was to feel, it is
true, the almost overshadowing influence of Washington, in favor of
the new system, exerted, not by personal participation in its
proceedings, but in a manner which could leave no doubt respecting his
opinion. But it was also to feel the strenuous opposition of Patrick
Henry, that great natural orator of the Revolution, whose influence
over popular assemblies was enormous, and who added acuteness,
subtilty, and logic to the fierce sincerity of his unstudied
harangues, although his knowledge was meagre and his range of thought
circumscribed; and the not less strenuous or effective opposition of
George Mason, who had little of the eloquence and passion of his
renowned compatriot, but who was one of the most profound and able of
all the American statesmen opposed to the Constitution, while he was
inferior in general powers and resources to not more than two or
three of those who framed or advocated it. Richard Henry Lee, William
Grayson, Benjamin Harrison, John Tyler, and others of less note, were
united with Henry and Mason in opposing the Constitution. Its leading
advocates were to be Madison, Marshall, the future Chief Justice of
the United States, George Nicholas, and the Chancellor Pendleton. The
Governor, Edmund Randolph, occupied for a time a middle position
between its friends and its opponents, but finally gave to it his
support, from motives which I have elsewhere described as eminently
honorable and patriotic.
One of the most distinguished of the public men of Virginia had been
absent in the diplomatic service of the country for three years. His
eminent abilities and public services, his national reputation, and
the influence of his name, naturally made both parties anxious to
claim the authority of Jefferson, and he was at once furnished with a
copy of the Constitution as soon as it appeared. In the heats of
subsequent political conflicts he has been often charged by his
opponents with a general hostility to the Constitution. The truth is,
that Mr. Jefferson's opinions on the subject of government, and of
what was desirable and expedient to be done in this country, united
with the effect of his long absence from home,[403] did lead him, at
first, to think and to say that the Constitution had defects which, if
not corrected, would destroy the liberties of America. He was by far
the most democratic, in the tendency of his opinions, of all the
principal American statesmen of that age. He was, according to his own
avowal, no friend to an energetic government anywhere. He carried
abroad the opinion that the Confederation could be adapted, with a few
changes, to all the wants of the Union; and this opinion he continued
to retain, because the events which had taken place here during his
absence did not produce upon his mind the effect which they produced
upon the great majority of public men who remained in the midst of
them. He freely declared to more than one of his correspondents in
Virginia, at this time, that such disorders as had been witnessed in
Massachusetts were necessary to public liberty, and that the national
Convention had been too much influenced by them, in preparing the
Constitution. He held that the natural progress of things is for
liberty to lose and for government to gain ground; and that no
government should be organized without those express and positive
restraints which will jealously guard the liberties of the people,
even if those liberties should periodically break into licentiousness.
One of his favorite maxims of government was "rotation in office"; and
he thought the government of the Union should have cognizance only of
matters involved in the relations of the people of each State to
foreign countries, or to the people of the other States, and that each
State should retain the exclusive control of all its internal and
domestic concerns, and especially the power of direct taxation.
Hence it is not surprising that, when Mr. Jefferson received at Paris,
early in November, a copy of the Constitution, and when he found in it
no express declarations insuring the freedom of religion, freedom of
the press, and freedom of the person under the uninterrupted
protection of the _habeas corpus_, and no trial by jury in civil
cases, and found also that the President would be re-eligible, and
that the government would have the power of direct taxation, his
anxiety should have been excited. It is a mistake, however, to suppose
that he counselled a direct rejection of the instrument by the people
of Virginia. His first suggestion was, that the nine States which
should first act upon it should adopt it, unconditionally, and that
the four remaining States should accept it only on the previous
condition that certain amendments should be made. This plan of his
became known in Virginia in the course of the winter of 1787-88, and
it gave the Anti-Federalists what they considered a warrant for using
his authority on their side. But before the following spring, when he
had had an opportunity to see the course pursued by Massachusetts, he
changed his opinion, and authorized his friends to say that he
regarded an unconditional acceptance by each State, and subsequent
amendments, in the mode provided by the Constitution, as the only
rational plan.[404] He also abandoned the opinion that the general
government ought not to have the power of direct taxation; but he
never receded from his objections founded on the want of a bill of
rights, and of trial by jury, and on the re-eligibility of the
President.
Immediately after his return to Mount Vernon from the national
Convention, Washington sent copies of the Constitution to Patrick
Henry, Mason, Harrison, and other leading persons whose opposition he
anticipated, with a temperate but firm expression of his own opinion.
The replies of these gentlemen furnished him with the grounds of their
objections, and at the same time relieved him, as to all of them but
Henry, from the apprehension that they might resist the calling of a
State convention. Mason and Henry were both members of the
legislature. The former was expressly instructed by his constituents
of Alexandria county[405] to vote for a submission of the Constitution
to the people of the State in convention;--a vote which he would
probably have given without instruction, as he declared to General
Washington that he should use all his influence for this purpose. Mr.
Henry was not instructed, and the friends of the Constitution
expected his resistance. The legislature assembled in October, and on
the first day of the session, in a very full House, Henry declared, to
the surprise of everybody, that the proposed Constitution must go to a
popular convention. The elections for such a body were ordered to be
held in March and April of the following spring. When they came on,
the news that the convention of New Hampshire had postponed their
action was employed by the Anti-Federalists, who insisted that this
step had been taken in deference to Virginia; although it was in fact
taken merely in order that the delegates of New Hampshire might get
their previous instructions against the Constitution removed by their
constituents. The pride of Virginia was touched by this electioneering
expedient, and the result was that the parties in the State convention
were nearly balanced, the Federalists however having, as they
supposed, a majority.[406] The convention was to assemble on the 2d of
June, 1788.
In the legislature of South Carolina the Constitution was debated,
with great earnestness, for three days, before it was decided to send
it to a popular convention. This was owing to the great persistency of
Rawlins Lowndes, who carried on the discussion in opposition to the
Constitution, almost single-handed and with great ability, against the
two Pinckneys, Pierce Butler, John and Edward Rutledge, John Julius
Pringle, Robert Barnwell, Dr. David Ramsay, and many other gentlemen.
At length, on the 19th of January, a resolution was passed, directing
a convention of the people to assemble on the 12th of May. The debate
in the legislature had tended to diffuse information respecting the
system, but it had also produced a formidable minority throughout the
State. Mr. Lowndes had employed, with a good deal of skill, the local
arguments which would be most likely to form the objections of a
citizen of South Carolina. He inveighed against the regulation of
commerce, the power over the slave-trade that was to belong to
Congress at the end of twenty years, and the preponderance which he
contended would be given to the Eastern States by the system of
representation in Congress; and although he was ably answered on all
points, the effect of the discussion was such, that a large minority
was returned to the Convention having a strong hostility to the
proposed system.[407]
The legislature of Maryland assembled in December, and directed the
delegates who had represented the State in the national Convention to
attend and give an account of the proceedings of that assembly. It
was in compliance with this direction that Luther Martin laid before
the legislature that celebrated communication which embodied not only
a very clear statement of the mode in which the principal compromises
of the Constitution were framed, as seen from the point of view
occupied by one who resisted them at every step, but also an
exceedingly able argument against the fundamental principle of the
proposed government. It was a paper, too, marked throughout with an
earnestness almost amounting to fanaticism. Repelling, with natural
indignation and dignity, the imputation that he was influenced by a
State office which he then held, he referred to the numerous honors
and emoluments which the Constitution of the United States would
create, and suggested--what his abilities and reputation well
justified--that his chance of obtaining a share of them was as good as
most men's. "But this," was his solemn conclusion, "I can say with
truth,--that so far was I from being influenced in my conduct by
interest, or the consideration of office, that I would cheerfully
resign the appointment I now hold; I would bind myself never to accept
another, either under the general government or that of my own State;
I would do more, sir;--so destructive do I consider the present system
to the happiness of my country, I would cheerfully sacrifice that
share of property with which Heaven has blessed a life of industry; I
would reduce myself to indigence and poverty; and those who are dearer
to me than my own existence, I would intrust to the care and
protection of that Providence who hath so kindly protected myself,--if
on _those terms only_ I could procure my country to reject those
chains which are forged for it."
Such a strength of conviction as this, on the part of a man of high
talent, was well calculated to produce an effect. No document that
appeared anywhere, against the Constitution, was better adapted to
rouse the jealousy, to confirm the doubts, or to decide the opinions,
of a certain class of minds. But it was an argument which reduced the
whole question substantially to the issue, whether the principle of
the Union could safely be changed from that of a federal league, with
an equality of representation and power as between the States, to a
system of national representation in a legislative body having
cognizance of certain national interests, in one branch of which the
people inhabiting the respective States should have power in
proportion to their numbers.[408] This was a question on which men
would naturally and honestly differ; but it was a question which a
majority of reflecting men, in almost every State, were likely, after
due inquiry, to decide against the views of Mr. Martin, because it was
clear that the Confederation had failed, and had failed chiefly by
reason of the peculiar and characteristic nature of its representative
system, and because the representative system proposed in the
Constitution was the only one that could be agreed upon as the
alternative. Mr. Martin's objections, however, like those of other
distinguished men who took the same side in other States, were of a
nature to form the creed of an earnest, conscientious, and active
minority. They had this effect in the State of Maryland. The
legislature ordered a State convention, to consider the proposed
Constitution, and directed it to meet on the 21st of April, 1788.
The convention of New Hampshire was to assemble in February. A large
portion of the State lay remote from the channels of intelligence, and
a considerable part of the people in the interior had not seen the
Constitution, when they were called upon to elect their delegates. The
population, outside of two or three principal places, was a rural one,
thinly scattered over townships of large territorial extent, lying
among the hills of a broken and rugged country, extending northerly
from the narrow strip of sea-coast towards the frontier of Canada. It
was easy for the opposition to persuade such a people that a scheme of
government had been prepared which they ought to reject; and the
consequence of their efforts was that the State convention assembled,
probably with a majority, certainly with a strong minority, of its
members bound by positive instructions to vote against the
Constitution which they were to consider.
I have thus, in anticipation of the strict order of events, given a
general account of the position of this great question in six of the
States, down to the time of the meeting of their respective
conventions, because when the session of the convention of
Massachusetts commenced, in January, 1788, the people of the five
States of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut
had successively ratified the Constitution without proposing any
amendments, and because the action of the others, extending through
the six following months, embraced the real crisis to which the
Constitution was subjected, and developed what were thereafter to be
considered as its important defects, according to the view of a
majority of the States, and probably also of a majority of the people
of all the States. For although the people of Delaware, Pennsylvania,
New Jersey, Georgia, and Connecticut ratified the Constitution without
insisting on previous or subsequent amendments, it is certain that
some of the same topics were the causes of anxiety and objection in
those States, which occasioned so much difficulty, and became the
grounds of special action, in the remaining States.
In coming, however, to the more particular description of the
resistance which the Constitution encountered, it will be necessary to
discriminate between the opposition that was made to the general plan
of the government, or to the particular features of it which it was
proposed to create, and that which was founded on its omission to
provide for certain things that were deemed essential. Of what may be
called the positive objections to the Constitution, it may be said, in
general, that, however fruitful of debate, or declamation, or serious
and important doubt, might be the question whether such a government as
had been framed by the national Convention should be substituted for
the Confederation, the opposition were not confined to this question,
as the means of persuading the people that the proposed system ought to
be rejected. One of the most deeply interested of the men who were
watching the currents of public opinion with extreme solicitude,
observed "a strong belief in the people at large of the insufficiency
of the Confederation to preserve the existence of the Union, and of the
necessity of the Union to their safety and prosperity; of course, a
strong desire of a change, and a predisposition to receive well the
propositions of the Convention."[409] But while the Constitution came
before the people with this conviction and this predisposition in its
favor, yet when its opponents, in addition to their positive objections
to what it did contain, could point to what it did _not_ embrace, and
could say that it proposed to establish a government of great power,
without providing for rights of primary importance, and without any
declaration of the cardinal maxims of liberty which the people had from
the first been accustomed to incorporate with their State
constitutions; and while the local interests, the sectional feelings,
and the separate policy, real or supposed, of different States,
furnished such a variety of means for defeating its adoption by the
necessary number of nine States;--we may not wonder that its friends
should have been doubtful of the issue. "It is almost arrogance," said
the same anxious observer, "in so complicated a subject, depending so
entirely upon the incalculable fluctuations of the human passions, to
attempt even a conjecture about the result."[410]
FOOTNOTES:
[395] It may be amusing to Americans of this and future generations to
know who this personage was for whom it was rumored that the Loyalists
desired to "send," and whose advent as a possible ruler of this
country was a vague apprehension in the popular mind for a good while,
and finally came to be imputed as a project to the framers of the
Constitution. The Bishop of Osnaburg was no other than the late Duke
of York, Frederick, the second son of King George III.; a prince whose
conduct as commander-in-chief of the army, in consequence of the sale
of commissions by his mistress, one Mrs. Clarke, became in 1809 a
subject of inquiry, leading to the most scandalous revelations, before
the House of Commons. The Duke was born in 1763, and was consequently,
at the period spoken of in the text, at the ripe age of twenty-four.
When about a year old (1764), he was chosen Bishop of Osnaburg. This
was a German province (Osnabrück), formerly a bishopric of great
antiquity, founded by Charlemagne. At the Reformation most of the
inhabitants became Lutherans, and by the Treaty of Westphalia it was
agreed that it should be governed alternately by a Roman Catholic and
a Protestant Bishop. In 1802 it was secularized, and assigned as an
hereditary principality to George III., in his capacity of King of
Hanover. Prince Frederick continued to be called by the title of
Bishop of Osnaburg, until he was created Duke of York. I am not aware
that the whispers of his name in the secret counsels of our Loyalists,
as a proposed king for America, became known in England. Whether such
knowledge would have excited a smile, or have awakened serious hopes,
is a question on which the reader can speculate. But it is certain
that there were persons in this country, and in the neighboring
British Provinces, who had long hoped for a reunion of the American
States with the parent country, through this or some other "mad
project." Colonel Humphreys, (who had been one of Washington's
_aides_,) writing to Hamilton, from New Haven, under date of September
16, 1787, says: "The quondam Tories have undoubtedly conceived hopes
of a future union with Great Britain, from the inefficacy of our
government, and the tumults which prevailed during the last winter. I
saw a letter, written at that period, by a clergyman of considerable
reputation in Nova Scotia, to a person of eminence in this State,
stating the impossibility of our being happy under our present
constitution, and proposing (now we could think and argue calmly on
all the consequences), that the efforts of the moderate, the virtuous,
and the brave should be exerted to effect a reunion with the parent
state.... It seems, by a conversation I have had here, that the
ultimate practicability of introducing the Bishop of Osnaburg is not a
novel idea among those who were formerly termed Loyalists. Ever since
the peace it has been occasionally talked of and wished for.
Yesterday, where I dined, half jest, half earnest, he was given as the
first toast. I leave you now, my dear friend, to reflect how ripe we
are for the most mad and ruinous project that can be suggested,
especially when, in addition to this view, we take into consideration
how thoroughly the patriotic part of the community, the friends of an
efficient government, are discouraged with the present system, and
irritated at the popular demagogues who are determined to keep
themselves in office, at the risk of everything. Thence apprehensions
are formed, that, though the measures proposed by the Convention may
not be equal to the wishes of the most enlightened and virtuous, yet
that they will be too high-toned to be adopted by our popular
assemblies. Should that happen, our political ship will be left afloat
on a sea of chance, without a rudder as well as without a pilot."
(Works of Hamilton, I. 443.) In a grave and comprehensive private
memorandum, drawn up by Hamilton soon after the Constitution appeared,
in which he summed up the probabilities for and against its adoption,
and the consequences of its rejection, the following occurs, as among
the events likely to follow such rejection: "A reunion with Great
Britain, from universal disgust at a state of commotion, is not
impossible, though not much to be feared. The most plausible shape of
such a business would be, the establishment of a son of the present
monarch in the supreme government of this country, with a family
compact." (Works, II. 419, 421.)
[396] Pennsylvania Journal, August 22, 1787.
[397] The history of the term "Federal," or "Federalist," offers a
curious illustration of the capricious changes of sense which
political designations often undergo, within a short period of time,
according to the accidental circumstances which give them their
application. During the discussions of the Convention which framed the
Constitution of the United States, the term _federal_ was employed in
its truly philosophic sense, to designate the nature of the government
established by the Articles of Confederation, in distinction from a
national system, that would be formed by the introduction of the plan
of having the States represented in the Congress in proportion to the
numbers of their inhabitants. But when the Constitution was before the
people of the States for their adoption, its friends and advocates
were popularly called Federalists, because they favored an enlargement
of the Federal government at the expense of some part of the State
sovereignties, and its opponents were called the Anti-Federalists. In
this use, the former term in no way characterized the nature of the
system advocated, but merely designated a supporter of the
Constitution. A few years later, when the first parties were formed,
in the first term of Washington's Administration, it so happened that
the leading men who gave a distinct character to the development which
the Constitution then received had been prominent advocates of its
adoption, and had been known therefore as Federalists, as had also
been the case with some of those who separated themselves from this
body of persons and formed what was termed the Republican, afterwards
the Democratic party. But the prominent supporters of the policy which
originated in Washington's administration continued to be called
Federalists, and the term thus came to denote a particular school of
politics under the Constitution, although it previously signified
merely an advocacy of its adoption. Thus, for example, Hamilton, in
1787, was no Federalist, because he was opposed to the continuance of
a federal, and desired the establishment of a national government. In
1788, he was a Federalist, because he wished the Constitution to be
adopted; and he afterwards continued to be a Federalist, because he
favored a particular policy in the administration of the government,
under the Constitution. It was in this latter sense that the term
became so celebrated in our political history. The reader will observe
that I use it, of course, in this work, only in the sense attached to
it while the Constitution was before the people of the States for
adoption.
[398] A striking proof of the importance attached by the people to the
opinions of Washington and Franklin may be found in a controversy
carried on for a short time in the newspapers of Philadelphia and New
York, after the Constitution appeared, whether those distinguished
persons _really approved_ what they had signed.
[399] All but Maryland and Rhode Island.
[400] Passed September 28, 1787. Journals, XII. 149-166.
[401] This is the substance of a careful account given by General Knox
to General Washington. (Works of Washington, IX. 310, 311.)
[402] A town on the Hudson River, seventy-five miles north of the city
of New York.
[403] He went abroad in the summer of 1784.
[404] Compare Mr. Jefferson's autobiography, and his correspondence,
in the first, second, and third volumes of his collected works
(edition of 1853), and the letters of Mr. Madison.
[405] In the newspapers of the time there is to be found a story that
Mr. Mason was very roughly received on his arrival at the city of
Alexandria, after the adjournment of the national Convention, on
account of his refusal to sign the Constitution. The occurrence is not
alluded to in Washington's correspondence, although he closely
observed Mr. Mason's movements, and regarded them with evident
anxiety. The story is told in the Pennsylvania Journal of October 17,
1787,--a strong Federal paper. I know of no other confirmation of it
than the fact that the people of Alexandria embraced the Constitution
from the first with "enthusiastic warmth," according to the account
given by General Washington to one of his correspondents. (Works, IX.
272.)
[406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346.
[407] This debate of three days in the South Carolina legislature was
one of the most able of all the discussions attending the ratification
of the Constitution. Mr. Lowndes was overmatched by his antagonists,
but he resisted with great spirit, finally closed with the declaration
that he saw dangers in the proposed government so great, that he could
wish, when dead, for no other epitaph than this: "Here lies the man
that opposed the Constitution, because it was ruinous to the liberty
of America." He lived to find his desired epitaph a false prophecy. He
was the father, of the late William Lowndes, who represented the State
of South Carolina in Congress, with so much honor and distinction,
during the administration of Mr. Madison.
[408] Mr. Martin's objections extended to many of the details of the
Constitution, but his great argument was that directed against its
system of representation, which he predicted would destroy the State
governments.
[409] Hamilton, Works, II. 419, 420.
[410] Hamilton, Works, II. 421.
CHAPTER II.
RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND
CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF
THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH
PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND, WITHOUT
OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND PROPOSES
AMENDMENTS.
The first State that ratified the Constitution, although its
convention was not the first to assemble, was Delaware. It was a
small, compact community, with the northerly portion of its territory
lying near the city of Philadelphia, with which its people had
constant and extensive intercourse. Its public men were intelligent
and patriotic. In the national Convention it had contended with great
spirit for the interests of the smaller States, and its people now had
the sagacity and good sense to perceive that they had gained every
reasonable security for their peculiar rights. The public press of
Philadelphia friendly to the Constitution furnished the means of
understanding its merits, and the discussions in the convention of
Pennsylvania, which assembled before that of Delaware, threw a flood
of light over the whole subject, which the people of Delaware did not
fail to regard. Their delegates unanimously ratified and adopted the
Constitution on the 7th of December.
The convention of Pennsylvania met, before that of any of the other
States, at Philadelphia, on the 20th of November. It was the second
State in the Union in population. Its chief city was perhaps the first
in the Union in refinement and wealth, and had often been the scene of
great political events of the utmost interest and importance to the
whole country. There had sat, eleven years before, that illustrious
Congress of deputies from the thirteen Colonies, who had declared the
independence of America, had made Washington commander-in-chief of her
armies, and had given her struggle for freedom a name throughout the
world. There, the Revolutionary Congress had continued, with a short
interruption, to direct the operations of the war. There, the alliance
with France was ratified, in 1778. There, the Articles of
Confederation were finally carried into full effect, in 1781. There,
within six months afterwards, the Congress received intelligence of
the surrender of Cornwallis, and walked in procession to one of the
churches of the city, to return thanks to God for a victory which in
effect terminated the war. There, the instructions for the treaty of
peace were given, in 1782, and there the Constitution of the United
States had been recently framed. For more than thirteen years, since
the commencement of the Revolution, and with only occasional
intervals, the people of Philadelphia had been accustomed to the
presence of the most eminent statesmen of the country, and had
learned, through the influences which had gone forth from their city,
to embrace in their contemplation the interests of the Union.
They placed in the State convention, that was to consider the proposed
Constitution of the United States, one of the wisest and ablest of its
framers,--James Wilson. The modesty of his subsequent career,[411] and
the comparatively little attention that has been bestowed by
succeeding generations upon the personal exertions that were made in
framing and establishing the Constitution, must be regarded as the
causes that have made his reputation, at this day, less extensive and
general than his abilities and usefulness might have led his
contemporaries to expect that it would be. Yet the services which he
rendered to the country, first in assisting in the preparation of the
Constitution, and afterwards in securing its adoption by the State of
Pennsylvania, should place his name high upon the list of its
benefactors. He had not the political genius which gave Hamilton such
a complete mastery over the most complex subjects of government, and
which enabled him, when the Constitution had been adopted, to give it
a development in practice that made it even more successful than its
theory alone could have allowed any one to regard as probable; nor had
he the talent of Madison for debate and for constitutional analysis;
but in the comprehensiveness of his views, and in his perception of
the necessities of the country, he was not their inferior, and he was
throughout one of their most efficient and best informed coadjutors.
He had to encounter, in the convention of the State, a body of men, a
majority of whom were not unfriendly to the Constitution, but among
whom there was a minority very hard to be conciliated. In the counties
which lay west of the Susquehanna,--the same region which afterwards,
in Washington's administration, became the scene of an insurrection
against the authority of the general government,--there was a
rancorous, active, and determined opposition. Mr. Wilson, being the
only member of the State convention who had taken part in the framing
of the Constitution, was obliged to take the lead in explaining and
defending it. His qualifications for this task were ample. He had been
a very important and useful member of the national Convention; he had
read every publication of importance, on both sides of the question,
that had appeared since the Constitution was published, and his legal
and historical knowledge was extensive and accurate. No man succeeded
better than he did, in his arguments on that occasion, in combating
the theory that a State government possessed the whole political
sovereignty of the people of the State. However true it might be, he
said, in England, that the Parliament possesses supreme and absolute
power, and can make the constitution what it pleases, in America it
has been incontrovertible since the Revolution, that the supreme,
absolute, and uncontrollable power is in the people, before they make
a constitution, and remains in them after it is made. To control the
power and conduct of the legislature by an overruling constitution,
was an improvement in the science and practice of government reserved
to the American States; and at the foundation of this practice lies
the right to change the constitution at pleasure,--a right which no
positive institution can ever take from the people. When they have
made a State constitution, they have bestowed on the government
created by it a certain portion of their power; but the fee simple of
their power remains in themselves.
Mr. Wilson was equally clear in accounting for the omission to insert
a bill of rights in the Constitution of the United States. In a
government, he observed, consisting of enumerated powers, such as was
then proposed for the United States, a bill of rights, which is an
enumeration of the powers reserved by the people, must either be a
perfect or an imperfect statement of the powers and privileges
reserved. To undertake a perfect enumeration of the civil rights of
mankind, is to undertake a very difficult and hazardous, and perhaps
an impossible task; yet if the enumeration is imperfect, all implied
power seems to be thrown into the hands of the government, on subjects
in reference to which the authority of government is not expressly
restrained, and the rights of the people are rendered less secure than
they are under the silent operation of the maxim that every power not
expressly granted remains in the people. This, he stated, was the view
taken by a large majority of the national Convention, in which no
direct proposition was ever made, according to his recollection, for
the insertion of a bill of rights.[412] There is, undoubtedly, a
general truth in this argument, but, like many general truths in the
construction of governments, it may be open to exceptions when applied
to particular subjects or interests. It appears to have been, for the
time, successful; probably because the opponents of the Constitution,
with whom Mr. Wilson was contending, did not bring forward specific
propositions for the declaration of those particular rights which were
made the subjects of special action in other State conventions.
Besides a very thorough discussion of these great subjects, Mr. Wilson
entered into an elaborate examination and defence of the whole system
proposed in the Constitution. He was most ably seconded in his efforts
by Thomas McKean, then Chief Justice of Pennsylvania and afterwards
its Governor, the greater part of whose public life had been passed in
the service of Delaware, his native State, and who had always been a
strenuous advocate of the interests of the smaller States, but who
found himself satisfied with the provision for them made by the
Constitution for the construction of the Senate of the United
States.[413] "I have gone," said he, "through the circle of office, in
the legislative, executive, and judicial departments of government;
and from all my study, observation, and experience, I must declare,
that, from a full examination and due consideration of this system, it
appears to me the best the world has yet seen. I congratulate you on
the fair prospect of its being adopted, and am happy in the
expectation of seeing accomplished what has long been my ardent wish,
that you will hereafter have a salutary permanency in magistracy and
stability in the laws."
The result of the discussion in the convention of Pennsylvania was the
ratification of the Constitution. The official ratification sent to
Congress was signed by a very large majority of the delegates, and
contains no notice of any dissent.[414] But the representatives of
that portion of the State which lay west of the Susquehanna generally
refused their assent, and their district afterwards became the place
in which the proposition was considered whether the government should
be allowed to be organized.[415]
The convention of New Jersey was in session at the time of the
ratification by Pennsylvania. Mr. Madison had passed through the
State, in the autumn, on his way to the Congress, then sitting in the
city of New York, and could discover no evidence of serious opposition
to the Constitution. Lying between the States of New York and
Pennsylvania, New Jersey was closely watched by the friends and the
opponents of the Constitution in both of those States, and was likely
to be much influenced by the predominating sentiment in the one that
should first act.[416] But the people of New Jersey had, in truth,
fairly considered the whole matter, and had found what their own
interests required. They alone, of all the States, when the national
Convention was instituted, had expressly declared that the regulation
of commerce ought to be vested in the general government. They had
learned that to submit longer to the diverse commercial and revenue
systems in force in New York on the one side of them, and in
Pennsylvania on the other side, would be like remaining between the
upper and the nether millstone. Their delegates in the national
Convention had, it is true, acted with those of New York, in the long
contest concerning the representative system, resisting at every step
each departure from the principle of the Confederation, until the
compromise was made which admitted the States to an equal
representation in the Senate. Content with the security which this
arrangement afforded, the people of New Jersey had the sagacity to
perceive that their interests were no longer likely to be promoted by
following in the lead of the Anti-Federalists of New York. Their
delegates unanimously ratified the Constitution on the 12th of
December, five days after the ratification of Pennsylvania.
A few days later, there came from the far South news that the
convention of Georgia had, with like unanimity, adopted the
Constitution. Neither the people of the State, nor their delegates,
could well have acted under the influence of what was taking place in
the centre of the Union. Their situation was too remote for the
reception, at that day, within the same fortnight, of the news of
events that had occurred in Pennsylvania and New Jersey, and they
could scarcely have read the great discussions that were going on in
various forms of controversy in the cities of New York and
Philadelphia, and throughout the Middle and the Eastern States. Wasted
excessively during the Revolution, by the nature of the warfare
carried on within her limits; left at the peace to contend with a
large, powerful, and cruel tribe of Indians, that pressed upon her
western settlements; and having her southern frontier bordering upon
the unfriendly territory of a Spanish colony,--the State of Georgia
had strong motives to lead her to embrace the Constitution of the
United States, and found little in that instrument calculated to draw
her in the opposite direction. Her delegates had resisted the
surrender of control over the slave-trade, but they had acquiesced in
the compromise on that subject, and there was in truth nothing in the
position in which it was left that was likely to give the State
serious dissatisfaction or uneasiness. The people of Georgia had
something more important to do than to quarrel with their
representatives about the principles or details of the system to which
they had consented in the national Convention. They felt the want of a
general government able to resist, with a stronger hand than that of
the Confederation, the evils which pressed upon them.[417] Their
assent was unanimously given to the Constitution on the 2d of January,
1788.
The legislature of Connecticut had ordered a convention to be held on
the 4th of January. When the elections were over, it was ascertained
that there was a large majority in favor of the Constitution; but
there was to be some opposition, proceeding principally from that
portion of the people who resisted whatever tended to the vigor and
stability of government,--a spirit that existed to some extent in all
the New England States. When the convention of the State assembled,
the principal duty of advocating the adoption of the Constitution
devolved on Oliver Ellsworth, who had borne an active and
distinguished part in its preparation. He found that the topic which
formed the chief subject of all the arguments against the
Constitution, was the general power of taxation which it would confer
on the national government, and the particular power of laying
imposts. Mr. Ellsworth was eminently qualified to explain and defend
the proposed revenue system. While he contended for the necessity of
giving to Congress a general power to levy direct taxes, in order that
the government might be able to meet extraordinary emergencies, and
thus be placed upon an equality with other governments, he
demonstrated by public and well-known facts that an indirect revenue,
to be derived from imposts, would be at once the easiest and most
reliable mode of defraying the ordinary expenses of the government,
because it would interfere less than any other form of taxation with
the internal police of the States; and he argued, from sufficient
data, that a very small rate of duty would be enough for this
purpose.[418] Under his influence and that of Oliver Wolcott, Richard
Law, and Governor Huntington, the Constitution was ratified by a large
majority, on the 9th of January.[419]
The action of Connecticut completed the list of the States that
ratified the Constitution without any formal record of objections, and
without proposing or insisting upon amendments. The opposition in
these five States had been overcome by reason and argument, and they
were a majority of the whole number of States whose accession was
necessary to the establishment of the government. But a new act in the
drama was to open with the new year. The conventions of Massachusetts,
New York, and Virginia were still to meet, and each of them was full
of elements of opposition of the most formidable character, and of
different kinds, which made the result in all of them extremely
doubtful. If all the three were to adopt the Constitution, still one
more must be gained from the States of New Hampshire, Maryland, and
North and South Carolina. The influence of each accession to the
Constitution on the remaining States might be expected to be
considerable; but, unfortunately, the convention of New Hampshire was
to meet five months before those of Virginia and New York, and a large
number of its members had been instructed to reject the Constitution.
If New Hampshire and Massachusetts were to refuse their assent in the
course of the winter, the States that were to act in the spring could
scarcely be expected to withstand the untoward influence of such an
example, which would probably operate with a constantly accelerating
force throughout the whole number of the remaining States.
The convention of Massachusetts commenced its session on the 9th of
January, the same day on which that of Connecticut closed its
proceedings. The State certainly held a very high rank in the Union.
Her Revolutionary history was filled with glory; with sufferings
cheerfully borne; with examples of patriotism that were to give her
enduring fame. The blood of martyrs in that cause, which she had made
from the first the cause of the whole country, had been poured
profusely upon her soil, and in the earlier councils of the Union she
had maintained a position of commanding influence. But there had been
in her political conduct, since the freedom of the country was
achieved, an unsteadiness and vacillation of which her former
reputation gave no presage. In 1783, the legislature had refused to
give the revenue powers asked for by the Congress, for the miserable
reason that the Congress had granted half-pay for life to the officers
of the Revolutionary army. In May, 1785, the legislature adopted a
resolution for a convention of the States to consider the subject of
enlarging the powers of the Federal Union, and in the following
November they rescinded it. These, and other occurrences, when
remembered, gave the friends of the Constitution elsewhere great
anxiety, as they turned their eyes towards Massachusetts. They were
fully aware, too, that the recent insurrection in that State, and the
severe measures which had followed it, had created divisions in
society which it would be difficult, if not impossible, to heal.
But it was not easy for the most intelligent men out of the State to
appreciate fully all the causes that exposed the Constitution of the
United States to a peculiar hazard in Massachusetts, and made it
necessary to procure its ratification by a kind of compromise with the
opposition for a scheme of amendments. In no State was the spirit of
liberty more jealous and exacting. In the midst of the Revolution, and
led by the men who had carried on the profound discussions which
preceded it,--discussions in which the natural rights of mankind and
the civil rights of British subjects were examined and displayed as
they had never been before,--the people of Massachusetts had framed a
State constitution, filled with the most impressive maxims and the
most solemn securities with which public liberty has ever been
invested. Not content to trust obvious truths to implication, they
expressly declared that government is instituted for the happiness and
welfare of the governed, and they fenced it round not only with the
chief restrictions gained by their English ancestors, from Magna
Charta down to the Revolution of 1688, but with many safeguards which
had not descended to them from Runnymede or Westminster. It may be
that an anxious student of politics, examining the early constitution
of Massachusetts,--happily in its most important features yet
unchanged,--would pronounce it unnecessarily careful of personal
rights and too jealous for the interests of liberty. But no
intelligent mind, thoughtful of the welfare of society, can now think
that to have been an excess of wisdom which formed a constitution of
republican government that has so well withstood the assaults of
faction and the levelling tendencies of a levelling age, and has
withstood them because, while it carefully guarded the liberties of
the people, it secured those liberties by institutions which stand as
bulwarks between the power of the many and the rights of the few.
It may hereafter become necessary for me to consider what degree of
importance justly belongs to the amendments which the State of
Massachusetts, and to those which other States, so impressively
insisted ought to be made to the Constitution of the United States.
Without at present turning farther aside from the narrative of events,
I content myself here with observing, that, whether the alleged
defects in the Constitution were important or unimportant, a people
educated as the people of Massachusetts had been would naturally
regard some provisions as essential which they did not find in the
plan presented to them.
The general aspect of parties in Massachusetts, down to the time when
the convention met, has been already considered. In the convention
itself there was a majority originally opposed to the Constitution;
and if a vote had been taken at any time before the proposition for
amendments was brought forward, the Constitution would have been
rejected. The opposition consisted of a full representation of the
various parties and interests already described as existing among the
people of the State who were unfriendly to it. One contemporary
account gives as many as eighteen or twenty members, who had actually
been out in what was called Shays's "army." Whether this enumeration
was strictly correct or not, it is well known that the western
counties of the State sent a large number of men whose sympathies were
with that insurrection, who were friends of paper money and tender
laws, and enemies of any system that would promote the security of
debts. The members from the province of Maine had their own special
objects to pursue. In addition to these were the honest and
well-meaning doubters, who had examined the Constitution with care and
objected to it from principle. The anticipated leader of this
miscellaneous host was that celebrated and ardent patriot of the
Revolution, Samuel Adams. With all his energy and his iron
determination of character, however, he could be cautious when caution
was expedient. He had read the Constitution, and all the principal
publications respecting it which had then appeared, and down to the
time of the meeting of the convention he had maintained a good deal of
reserve. But it was known that he disapproved of it.
This remarkable man--often called the American Cato--was far better
fitted to rouse and direct the storms of revolution, than to
reconstruct the political fabric after revolution had done its work.
He had the passionate love of liberty, fertility of resource, and
indomitable will, which are most needed in a truly great leader of a
popular struggle with arbitrary power. But that struggle over, his
usefulness in an emergency like the one in which Massachusetts was now
placed was limited to the actual necessity for the intervention of an
extreme devotion to the maxims and principles of popular freedom. He
believed that there was such a necessity, and he acted always as he
believed. But his influence, at this time, was by no means
commensurate with his power and reputation at a former day, and he
appears to have wisely avoided a direct contest with the large body of
very able men who supported the Constitution.
That body of men would certainly have been, in any assembly convened
for such a purpose, an overmatch in debate for Samuel Adams; for they
were the civilians Fisher Ames, Parsons, King, Sedgwick, Gorham, Dana,
Gore, Bowdoin, and Sumner, the Revolutionary officers Heath, Lincoln,
and Brooks, and several of the most distinguished clergymen in the
State. The names of the members who acted on the same side with Mr.
Adams, and were then regarded as leaders of the opposition, have
reached posterity in no other connection.[420] But some of the
elements of which that opposition was composed could not be controlled
by any superiority in debate, and were, therefore, little in need of
great powers of discussion or great wisdom in council. So far as their
objections related to the powers to be conferred on the general
government, or to the structure of the proposed system, they could be
answered, and many of them could be, and were, convinced. But with
respect to what they considered the defects of the Constitution,
theoretical reasoning, however able, could have no influence over men
whose minds were made up; and it became, as the reader will see,
necessary to make an effort to gain a majority by some course of
action which would involve the concession that the proposed system
required amendment.
There were great hazards attending this course, in reference to its
effect on other States, although it was not impossible to procure by
it the ratification of this convention. Notwithstanding all that had
detracted from the former high standing of the State,--notwithstanding
the easy explanation that might be given of the influence of her late
internal disturbances upon her subsequent political affairs,--she was
still Massachusetts; still she was the eldest of all the States but
one,--still she held in the sacred places of her soil the bones of the
first martyrs to liberty,--still she was renowned, as she has ever
been, for her intelligence,--still she wore a name of more than
ordinary consideration among her sisters of the Confederacy. If it
should go forth to New York, to Virginia, to the Carolinas, that
Massachusetts had pronounced the Constitution unfit for the acceptance
of a free people, or had declared that public liberty could not be
preserved under it without the addition of provisions which its
framers had not made, the effect might be disastrous beyond all
previous calculation. The legislature of New York, in session at the
same time with the convention of Massachusetts, was much divided on
the question of submitting the Constitution to a convention, and it
was the opinion of careful observers that the result in either way in
the latter State would involve that in the former. In Virginia the
elections for their convention were soon to take place. In
Pennsylvania the minority were becoming restless under their defeat,
and were agitating plans which looked to the obstruction of the
government when an attempt should be made to organize it. The
convention of South Carolina was not to meet until May, and North
Carolina stood in an extremely doubtful position. A great weight of
responsibility rested therefore upon the convention of Massachusetts.
Its proceedings commenced with a desultory debate upon the several
parts of the instrument, which lasted until the 30th of January; the
friends of the Constitution having carefully provided, by a vote at
the outset, that no separate question should be taken. The discussion
of the various objections having been exhausted, Parsons[421] moved
that the instrument be assented to and ratified. One or two general
speeches followed this motion, and then Hancock, the President of the
convention, descended from the chair, and, with some conciliatory
observations, laid before it a proposition for certain amendments.
This step was not taken by him upon his own suggestion merely,
although he was doubtless very willing to be the medium of a
reconciliation between the contending parties. He was at that time
Governor of the State, and had been placed in the chair of the
convention, partly in deference to his official station and his
personal eminence, and partly because he held a rather neutral
position with respect to the Constitution. These circumstances, as
well as his Revolutionary distinction, led the friends of the
Constitution to seek his intervention; and his love of popularity and
deference made the office of arbitrator exceedingly agreeable to him.
The selection was a wise one, for Hancock had great influence with the
classes of men composing the opposition, and he could not be suspected
of any undue admiration of the system the adoption of which he was to
recommend.
He proceeded with characteristic caution. It does not appear, from
what is preserved of the remarks with which he presented his
amendments, whether he intended they should become a condition
precedent to the ratification, or should be adopted as a
recommendation subsequent to the assent of the convention to the
Constitution then before it. He brought them forward, he said, to
quiet the apprehensions and remove the doubts of gentlemen, relying on
their candor to bear him witness that his wishes for a good
constitution were sincere. But the form of ratification which he
proposed contained a distinct and separate acceptance of the
Constitution, and the amendments followed it, with a recommendation
that they "be introduced into the said Constitution." Samuel Adams,
with much commendation of the Governor's proposition, immediately
affected to understand it as recommending conditional amendments, and
advocated it in that sense. Other members of the opposition understood
it in the opposite sense, and, fearing its effect, insisted that the
convention had no power to propose amendments, and that there could be
no probability that, if recommended to the attention of the first
Congress that might sit under the Constitution, they would ever be
adopted. Upon both of these points, the arguments of the other side
were sufficient to convince a few of the more candid members of the
opposition, and the Constitution was ratified on the 7th of February,
by a majority of nineteen votes,[422] the ratification being followed
by a recommendation of certain amendments, and an injunction addressed
to the representatives of the State in Congress to insist at all times
on their being considered and acted upon in the mode provided by the
fifth article of the Constitution.
The smallness of the majority in favor of the Constitution was in a
great degree compensated by the immediate conduct of those who had
opposed it. Many of them, before the final adjournment, expressed
their determination, now that it had received the assent of a
majority, to exert all their influence to induce the people to
anticipate the blessings which its advocates expected from it. They
acted in accordance with their professions; and those portions of the
people whose sentiments they had represented exhibited generally the
same candor and patriotism, and acquiesced at once in the result. This
course of the opposition in Massachusetts was observed elsewhere, and
largely contributed to give to the action of the State, in proposing
amendments, a salutary influence in some quarters, which would
otherwise have probably failed to attend it.
The amendments proposed by the convention of Massachusetts were, as
was claimed by those who advocated them, of a general, and not a local
character; but they were at the same time highly characteristic of the
State. They may be divided into three classes. One of them embraced
that general declaration which was afterwards incorporated with the
amendments to the Constitution, and which expressly reserved to the
States or the people the powers not delegated to the United States.
Another class of them comprehended certain restraints upon the powers
granted to Congress by the Constitution, with respect to elections,
direct taxes, the commercial power, the jurisdiction of the courts,
and the power to consent to the holding of titles or offices conferred
by foreign sovereigns. The third class contemplated the two great
provisions of a presentment by a grand jury, for crimes by which an
infamous or a capital punishment might be incurred, and trial by jury
in civil actions at the common law between citizens of different
States.
The people of Boston, although in general strongly in favor of the
Constitution, had carefully abstained from every attempt to influence
the convention. But now that the ratification was carried, they
determined to give to the event all the importance that belonged to
it, by public ceremonies and festivities. On the 17th of February,
there issued from the gates of Faneuil Hall an imposing procession of
five thousand citizens, embracing all the trades of the town and its
neighborhood, each with its appropriate decorations, emblems, and
mottoes. In the centre of this long pageant, to mark the relation of
everything around it to maritime commerce, and the relation of all to
the new government, was borne the ship Federal Constitution, with full
colors flying, and attended by the merchants, captains, and seamen of
the port.[423] On the following day, the rejoicings were terminated by
a public banquet, at which each of the States that had then adopted
the Constitution was separately toasted, the minorities of
Connecticut and Massachusetts were warmly praised for their frank and
patriotic submission, and strong hopes were expressed of the State of
New York.
In this manner the Federalists of Massachusetts wisely sought to
kindle the enthusiasm of the country, and to conciliate the opinion of
the States which were still to act, in favor of the new Constitution.
The influence of their course did not fail in some quarters. In the
convention of New Hampshire, which assembled immediately after that of
Massachusetts was adjourned, although there was a majority who, either
bound by instructions or led by their own opinions, would have
rejected the Constitution if required to vote upon it immediately, yet
that same majority was composed chiefly of men willing to hear
discussion, willing to be convinced, and likely to feel the influence
of what had occurred in the leading State of New England. There was a
body of Federalists in New Hampshire acting in concert with the
leading men of that party in Massachusetts. They caused the same form
of ratification and the same amendments which had been adopted in the
latter State, with some additional ones, to be presented to their own
convention.[424] The discussions changed the opinions of many of the
members, but it was not deemed expedient to incur the hazard of a
vote. The friends of the Constitution found it necessary to consent to
an adjournment, in order that the instructed delegates might have an
opportunity to lay before their constituents the information which
they had themselves received, and of which the people in the more
remote parts of the State were greatly in need. Unfortunately,
however, for the course of things in other States, the occurrence of a
general election in New Hampshire made it necessary to adjourn the
convention until the middle of June. We have seen what was the effect
of this proceeding in Virginia, where it was both misunderstood and
misrepresented. But it saved the Constitution in New Hampshire.
Six States only, therefore, had adopted the Constitution at the
opening of the spring of 1788. The convention of Maryland assembled at
Annapolis on the 21st of April. The convention of South Carolina was
to follow in May, and the conventions of Virginia and New York were to
meet in June. So critical was the period in which the people of
Maryland were to act, that Washington considered that a postponement
of their decision would cause the final defeat of the Constitution;
for if, under the influence of such a postponement, following that of
New Hampshire, South Carolina should reject it, its fate would turn
on the determination of Virginia.
The people of Maryland appear to have been fully aware of the
importance of their course. They not only elected a large majority of
delegates known to be in favor of the Constitution, but a majority of
the counties instructed their members to ratify it as speedily as
possible, and to do no other act. This settled determination not to
consider amendments, and not to have the action of the State
misinterpreted, or its influence lost, gave great dissatisfaction to
the minority. Their efforts to introduce amendments were disposed of
quite summarily. The majority would entertain no proposition but the
single question of ratification, which was carried by sixty-three
votes against eleven, on the 28th of April.