Each of the American States, when its people adopted the national

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.

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