THE FEDERAL CONVENTION.
[Sidenote: Difficult problem before the convention.]
[Sidenote: Washington's solemn appeal.]
The Federal Convention did wisely in withholding its debates from the
knowledge of the people. It was felt that discussion would be more
untrammelled, and that its result ought to go before the country as the
collective and unanimous voice of the convention. There was likely to be
wrangling enough among themselves; but should their scheme be unfolded,
bit by bit, before its parts could be viewed in their mutual relations,
popular excitement would become intense, there might be riots, and an
end would be put to that attitude of mental repose so necessary for the
constructive work that was to be done. It was thought best that the
scheme should be put forth as a completed whole, and that for several
years, even, until the new system of government should have had a fair
trial, the traces of the individual theories and preferences concerned
in its formation should not be revealed. For it was generally assumed
that a system of government new in some important respects would be
proposed by the convention, and while the people awaited the result the
wildest speculations and rumours were current. A few hoped, and many
feared, that some scheme of monarchy would be established. Such
surmises found their way across the ocean, and hopes were expressed in
England that, should a king be chosen, it might be a younger son of
George III. It was even hinted, with alarm, that, through gratitude to
our recent allies, we might be persuaded to offer the crown to some
member of the royal family of France. No such thoughts were entertained,
however, by any person present in the convention. Some of the delegates
came with the design of simply amending the articles of confederation by
taking away from the states the power of regulating commerce, and
intrusting this power to Congress. Others felt that if the work were not
done thoroughly now another chance might never be offered; and these men
thought it necessary to abolish the confederation, and establish a
federal republic, in which the general government should act directly
upon the people. The difficult problem was how to frame a plan of this
sort which people could be made to understand and adopt. At the very
outset some of the delegates began to exhibit symptoms of that peculiar
kind of moral cowardice which is wont to afflict free governments, and
of which American history furnishes so many instructive examples. It was
suggested that palliatives and half measures would be far more likely to
find favour with the people than any thorough-going reform, when
Washington suddenly interposed with a brief but immortal speech, which
ought to be blazoned in letters of gold, and posted on the wall of every
American assembly that shall meet to nominate a candidate, or declare a
policy, or pass a law, so long as the weakness of human nature shall
endure. Rising from his president's chair, his tall figure drawn up to
its full height, he exclaimed in tones unwontedly solemn with suppressed
emotion, "It is too probable that no plan we propose will be adopted.
Perhaps another dreadful conflict is to be sustained. If, to please the
people, we offer what we ourselves disapprove, how can we afterward
defend our work? Let us raise a standard to which the wise and the
honest can repair; the event is in the hand of God."
This outburst of noble eloquence carried conviction to every one, and
henceforth we do not hear that any attempt was avowedly made to avoid
the issues as they came up. It was a most wholesome tonic. It braced up
the convention to high resolves, and impressed upon all the delegates
that they were in a situation where faltering or trifling was both
wicked and dangerous. From that moment the mood in which they worked
caught something from the glorious spirit of Washington. There was need
of such high purpose, for two plans were presently laid before the
meeting, which, for a moment, brought out one of the chief elements of
antagonism existing between the states, and which at first seemed
irreconcilable. It was the happy compromise which united and harmonised
these two plans that smoothed the further work of the convention, and
made it possible for a stable and powerful government to be constructed.
[Sidenote: The root of all the difficulties.]
The first of these plans was known as the Virginia plan. It was agreed
upon in a committee of the delegates of that state, and was brought
forward by Edmund Randolph, governor of Virginia, in the name of the
state, but its chief author was Madison. It struck instantly at the root
of the difficulties under which the country had been staggering ever
since the Declaration of Independence. The federal government had
possessed no means of enforcing obedience to its laws. Its edicts were
without a sanction; and this was because they operated upon states, and
not upon individuals. When an individual defies the law, you can lock
him up in jail, or levy an execution upon his property. The immense
force of the community is arrayed against him, and he is as helpless as
a straw on the billows of the ocean. He cannot raise a militia to
protect himself. But when the law is defied by a state, it is quite
otherwise. You cannot put a state into jail, nor seize its goods; you
can only make war on it, and if you try that expedient you find that the
state is not helpless. Its local pride and prejudices are aroused
against you, and its militia will turn out in full force to uphold the
infraction of law. Against this obstinate and exasperated military force
what superior force can you bring? Under some rare combination of
circumstances you might get the military force of several of the other
states; but ordinarily, when what you are trying to do is simply to
enforce every-day laws, and when you simply represent a distrusted
general government in conflict with a local government, you cannot do
this. The other states will sympathize with the delinquent state; they
will feel that the very same condition of things which leads you to
attack that state to-day will lead you to attack some other state
to-morrow. Hence you cannot get any military help, and you are
powerless.
Such was the case with the Continental Congress. A novel and distrusted
institution, it was called upon to enforce its laws upon
long-established communities, full of sturdy independence and obstinate
local prejudices. It was able to act, though with clumsy slowness, as
long as there was an enemy in the field who was even more dreaded. But
as soon as this enemy had been beaten out of sight it could not act at
all. This had been because it did not represent the American people, but
only the American states. The vital force which moved it was not the
resistless force of a whole people, but only a shadowy semblance of
force, derived from a theoretical consent of thirteen corporate bodies,
which in their corporate capacity could never be compelled to agree
about anything under the sun; and unless compelled they would not agree.
Four years of disturbance in every part of the country, in the course of
which troops had been called out in several states, and civil war had
been narrowly averted at least half a dozen times, had proved this
beyond all cavil. With almost any other people than the Americans civil
war would have come already. With all the vast future interests that
were involved in these quarrels looming up before their keen, sagacious
minds, it was a wonder that they had been kept from coming to blows.
Such self-restraint had been greatly to their credit. It was the blessed
fruit of more than a century of government by free discussion, while yet
these states were colonies, peopled by the very cream of English
freemen who had fought the decisive battle of civil and religious
freedom for mankind in that long crisis when the Invincible Armada was
overwhelmed and the Long Parliament won its triumphs. Such
self-restraint had this people shown in days of trial, under a vicious
government adopted in a time of hurry and sore distress. But late events
had gone far to show that it could not endure.
The words of Randolph's opening speech are worth quoting in this
connection. "The confederation," he said, "was made in the infancy of
the science of constitutions, when the inefficiency of requisitions was
unknown; when no commercial discord had arisen among states; when no
rebellion like that in Massachusetts had broken out; when foreign debts
were not urgent; when the havoc of paper money had not been foreseen;
when treaties had not been violated; and when nothing better could have
been conceded by states jealous of their sovereignty. But it offered no
security against foreign invasion, for Congress could neither prevent
nor conduct a war, nor punish infractions of treaties or of the law of
nations, nor control particular states from provoking war. The federal
government has no constitutional power to check a quarrel between
separate states; nor to suppress a rebellion in any one of them; nor to
establish a productive impost; nor to counteract the commercial
regulations of other nations; nor to defend itself against the
encroachments of the states. From the manner in which it has been
ratified in many of the states, it cannot be claimed to be paramount to
the state constitutions; so that there is a prospect of anarchy from the
inherent laxity of the government. As the remedy, the government to be
established must have for its basis the republican principle."
[Sidenote: The Virginia plan; a radical cure.]
Having thus tersely stated the whole problem, Randolph went on to
present the Virginia plan. To make the federal government operate
directly upon individuals, one provision was absolutely necessary. It
did not solve the whole problem, but it was an indispensable beginning.
This was the proposal that there should be a national legislature, in
which the American _people_ instead of the American states should be
represented. For the purposes of federal legislation, there must be an
assembly elected directly by the people, and with its members
apportioned according to population. There must be such an assembly as
our present House of Representatives, standing in the same immediate
relation to the people of the whole country as was sustained by the
assembly of each separate state to the people of that state. Without
such direct representation of the whole people in the Federal Congress,
it would be impossible to achieve one secure step toward the radical
reform of the weaknesses and vices of the confederation. It was the only
way in which the vexed question of one nation or thirteen could be made
to yield a satisfactory answer. At the same time it could not be denied
that such a proposal was revolutionary in character. It paved the way
for a national consolidation which might go further than any one could
foresee, and much further than was desirable. The moribund Congress of
the Confederation, with its delegates chosen by the state assemblies,
and casting its vote simply by states, had utterly failed to serve as a
national legislature. There was a good deal of truth in what John Adams
once said of it, that it was more a diplomatic than a legislative body.
It was, indeed, because of this consciously felt diplomatic character
that it was called a Congress, and not a Parliament. In its lack of
coercive power it resembled the international congresses of Europe
rather than the supreme legislature of any country. To substitute
abruptly for such a body a truly national legislature, based not upon
states but upon population, was quietly to inaugurate a revolution of no
less magnitude than that which had lately severed us from Great Britain.
So bold a step, while all-essential in order to complete that
revolution, and make its victorious issue fortunate instead of
disastrous to the American people, was sufficiently revolutionary to
awaken the fears of many members of the Federal Convention. To the
familiar state governments which had so long possessed their love and
allegiance, it was super-adding a new and untried government, which it
was feared would swallow up the states and everywhere extinguish local
independence. Nor can it be said that such fears were unreasonable. Our
federal government has indeed shown a strong tendency to encroach upon
the province of the state governments, especially since our late Civil
War. Too much centralization is our danger to-day, as the weakness of
the federal tie was our danger a century ago. The rule of the
Federalist party was needed in 1789 as the rule of the Republican party
was needed in 1861, to put a curb upon the centrifugal tendencies. But
after Federalism had fairly done its great work, at the beginning of the
nineteenth century, it was well that the administration of our national
affairs should pass into the hands of the party to which Thomas
Jefferson and Samuel Adams belonged, and which Madison, in his calm
statesmanlike wisdom, had come to join. And now that, in our own day,
the disruptive forces have been even more thoroughly and effectually
overcome, it is time for the principles of that party to be reasserted
with fresh emphasis. If the day should ever arrive (which God forbid!)
when the people of the different parts of our country shall allow their
local affairs to be administered by prefects sent from Washington, and
when the self-government of the states shall have been so far lost as
that of the departments of France, or even so far as that of the
counties of England,--on that day the progressive political career of
the American people will have come to an end, and the hopes that have
been built upon it for the future happiness and prosperity of mankind
will be wrecked forever.
I do not think that the historian writing at the present day need fear
any such direful calamity, for the past century has shown most
instructively how, in such a society as ours, the sense of political
dangers slowly makes its way through the whole mass of the people, until
movements at length are made to avert them, and the pendulum swings in
the opposite direction. The history of political parties in the United
States is especially rich in lessons of this sort. Compared with the
statesmen of the Federal Convention, we are at a great advantage in
studying this question of national consolidation; and we have no excuse
for failing to comprehend the attitude of the men who dreaded the
creation of a national legislature as the entering wedge which would by
and by rend asunder the structure of our liberties. The great mind of
Madison was one of the first to entertain distinctly the noble
conception of two kinds of government operating at one and the same time
upon the same individuals, harmonious with each other, but each supreme
in its own sphere. Such is the fundamental conception of our partly
federal, partly national, government, which appears throughout the
Virginia plan as well as in the Constitution which grew out of it. It
was a political conception of a higher order than had ever before been
entertained; it took a great deal of discussion to make it clear to the
minds of the delegates generally; and the struggle over this initial
measure of a national legislature was so bitter as to come near breaking
up the convention.
In its original shape the Virginia plan went much further toward
national consolidation than the Constitution as adopted. The reaction
against the evils of the loose-jointed confederation, which Randolph so
ably summed up, was extreme. According to the Virginia plan, the
national legislature was to be composed of two houses, like the
legislatures of the several states. The members of the lower house
should be chosen directly by the people; members of the upper house, or
Senate, should be elected by the lower house out of persons nominated by
the state legislatures. In both the lower and the upper branches of this
national legislature the votes were to be the votes of individuals, and
no longer the votes of states, as in the Continental Congress. Under the
articles of confederation each state had an equal vote, and two thirds
were required for every important measure. Under the proposed
Constitution each state was to have a number of representatives
proportionate either to its wealth or to the number of its free
inhabitants, and a bare majority of votes was to suffice to pass all
measures in the ordinary course of business; and these rules were to
apply both to the lower house and to the Senate. To adopt such a plan
would overthrow the equality of the states altogether. It would give
Virginia, the greatest state, sixteen representatives, where Georgia,
the smallest state, had but one; and besides, as the votes were no
longer to be taken by states, individual members could combine in any
way they pleased, quite irrespective of state lines. It was not strange
that to many delegates in the convention such a beginning should have
seemed revolutionary. This impression was deepened when it was further
proposed not only to clothe this national legislature with original
powers of legislation in all cases to which the several states are
incompetent, but also to allow it to set aside at discretion such state
laws as it might deem unconstitutional. It is interesting to find
Madison, whose Federalism afterward came to be so moderate, now
appearing as the earnest defender of this extreme provision, so
incompatible with state rights. But in Madison's mind at this moment, in
the actual presence of the anarchy of the confederation, the only
alternative which seemed to present itself was that of armed coercion.
"A negative on state laws," he said, "is the mildest expedient that can
be devised for enforcing a national decree. Should no such precaution be
engrafted, the only remedy would be coercion. The negative would render
the use of force unnecessary. This prerogative of the general government
is the great pervading principle that must control the centrifugal
tendency of the states, which, without it, will continually fly out of
their proper orbits, and destroy the order and harmony of the political
system." But these views were not destined to find favour with the
convention, which finally left the matter to be much more satisfactorily
adjusted through the medium of the federal judiciary.
Such were the fundamental provisions of the Virginia plan with regard to
the national legislature. To carry out the laws, it was proposed that
there should be a national executive, to be chosen by the national
legislature for a short term, and ineligible a second time. Whether the
executive power should be invested in a single person or in several was
not specified. As will be seen hereafter, this was regarded as an
extremely delicate point, with which it was thought best not to
embarrass the Virginia plan at the outset. Passing lightly over this, it
was urged that, in order to complete the action of the government upon
individuals, there must be a national judiciary to determine cases
arising under the Constitution, cases in admiralty, and cases in which
different states or their citizens appear as parties. The judges were to
be chosen by the national legislature, to hold office during good
behaviour.
[Sidenote: First reception of the Virginia plan.]
Such, in its main outlines, was the plan which Randolph laid before the
convention, in the name of the Virginia delegation. An audacious scheme!
exclaimed some of the delegates; it was enough to take your breath away.
If they were going to begin like this, they might as well go home, for
all discussion would be time wasted. They were not sent there to set on
foot a revolution, but to amend and strengthen the articles of
confederation. But this audacious plan simply abolished the
Confederation in order to substitute for it a consolidated national
government. Foremost in urging this objection were Yates and Lansing of
New York, with Luther Martin of Maryland. Dickinson said it was pushing
things altogether too far, and his colleague, George Read, hinted that
the delegation from Delaware might feel obliged to withdraw from the
convention if the election of representatives according to population
should be adopted. By the tact of Madison and Gouverneur Morris this
question was postponed for a few days. After some animated discussion,
the issues became so narrowed and defined that they could be taken up
one by one. It was first decided that the national legislature should
consist of two branches. Then came a warm discussion as to whether the
members of the lower house should be elected directly by the people.
Curiously enough, in a country where the principle of popular election
had long since taken such deep root, where the assemblies of the several
states had been chosen by the people from the very beginning, there was
some doubt as to whether the same principle could safely be applied to
the national House of Representatives. Gerry, with his head full of the
Shays rebellion and the "Know Ye" measures of the neighbouring state,
thought the people could not be trusted. "The people do not want
virtue," said he, "but are the dupes of pretended patriots." Roger
Sherman took a similar view, and was supported by Martin, Rutledge, and
both the Pinckneys; but the sounder opinion prevailed. On this point
Hamilton was at one with Mason, Wilson, and Dickinson. The proposed
assembly, said Mason, was to be, so to speak, our House of Commons, and
ought to know and sympathize with every part of the community. It ought
to have at heart the rights and interests of every class of the people,
and in no other way could this end be so completely attained as by
popular election. "Yes," added Wilson, "without the confidence of the
people no government, least of all a republican government, can long
subsist.... The election of the first branch by the people is not the
corner-stone only, but the foundation of the fabric." "It is essential
to the democratic rights of the community," said Hamilton, "that the
first branch be directly elected by the people." Madison argued
powerfully on the same side, and the question was finally decided in
favour of popular election.
[Sidenote: Antagonism between large states and small states.]
[Sidenote: The New Jersey plan; a feeble palliative.]
It was now the 4th of June, when the great question came up which nearly
wrecked the convention before it was settled, after a whole month of
stormy debate. This was the question as to how the states should be
represented in the new Congress. On the Virginia plan, the smaller
states would be virtually swamped. Unless they could have equal votes,
without regard to wealth or population, they would be at the mercy of
the great states. In the division which ensued, the four most populous
states--Virginia, Massachusetts, Pennsylvania, and North
Carolina--favoured the Virginia plan; and they succeeded in carrying
South Carolina with them. Georgia, too, which, though weak at that
moment, possessed considerable room for expansion, voted upon the same
side. On the other hand, the states of Connecticut, New Jersey,
Delaware, and Maryland--which were not only small in area, but were cut
off from further expansion by their geographical situation--were not
inclined to give up their equal vote in either branch of the national
legislature. At this stage of the proceedings the delegation from New
Hampshire had not yet arrived upon the scene. On several occasions the
majority of the Maryland delegation went with the larger states, but
Luther Martin, always opposed to the Virginia plan, usually succeeded in
dividing the vote of the delegation. Of the New York members, Yates and
Lansing, here as always, thwarted Hamilton by voting with the smaller
states. Their policy throughout was one of obstruction. The members from
Connecticut were disposed to be conciliatory; but New Jersey was
obstinate and implacable. She knew what it was to be tyrannized over by
powerful neighbours. The wrongs she had suffered from New York and
Pennsylvania rankled in the minds of her delegates. Accordingly, in the
name of the smaller states, William Paterson laid before the convention
the so-called "New Jersey plan" for the amendment of the articles of
confederation. This scheme admitted a federal legislature, consisting of
a single house, an executive in the form of a council to be chosen by
Congress, and likewise a federal judiciary, with powers less extensive
than those contemplated by the Virginia plan. It gave to Congress the
power to regulate foreign and domestic commerce, to levy duties on
imports, and even to raise internal revenue by means of a Stamp Act. But
with all this apparent liberality on the surface, the New Jersey plan
was vicious at bottom. It did not really give Congress the power to act
immediately upon individuals. The federal legislature which it proposed
was to represent states, and not individuals, and the states were to
vote equally, without regard to wealth or population. If things were to
be left in this shape, there was no security that the powers granted to
Congress could ever be really exercised. Nay, it was almost certain that
they could not be put into operation. It was easy enough on paper to
give Congress the permission to levy duties and regulate commerce, but
such a permission would amount to nothing unless Congress were armed
with the power of enforcing its decrees upon individuals. And it could
in no wise acquire such power unless as the creature of the people, and
not of the states. The New Jersey plan, therefore, furnished no real
remedy for the evils which afflicted the country. It was vigorously
opposed by Hamilton, Madison, Wilson, and King. Hamilton, indeed, took
this occasion to offer a plan of his own, which, in addition to
Madison's scheme of a purely national legislature, contained the
features of a tenure for life or good behaviour, for the executive and
the members of the upper house. But to most of the delegates this scheme
seemed too little removed from a monarchy, and Hamilton's brilliant
speech in its favour, while applauded by many, was supported by none.
The weighty arguments of Wilson, King, and Madison prevailed, and the
New Jersey plan lost its original shape when it was decided that
Congress should consist of two houses. The principle of equal state
representation, however, remained as a stumbling-block. Paterson,
supported by his able colleague Brearley, as well as by Martin and the
two irreconcilables from New York, stoutly maintained that to depart
from this principle would be to exceed the powers of the convention,
which assuredly was not intended to remodel the government from
beginning to end. But Randolph answered, "When the salvation of the
republic is at stake, it would be treason to our trust not to propose
what we find necessary;" and Hamilton pithily reminded the delegates
that as they were there only for the purpose of recommending a scheme
which would have to be submitted to the states for acceptance, they
need not be deterred by any false scruples from using their wits to the
best possible advantage. The debate on the merits of the question was an
angry one. According to the Virginia plan, said Brearly, the three
states of Virginia, Massachusetts, and Pennsylvania will carry
everything before them. "It was known to him, from facts within New
Jersey, that where large and small counties were united into a district
for electing representatives for the district, the large counties always
carried their point, and consequently the large states would do so....
Was it fair, on the other hand, that Georgia should have an equal vote
with Virginia? He would not say it was. What remedy, then? One only:
that a map of the United States be spread out, that all the existing
boundaries be erased, and that a new partition of the whole be made into
thirteen equal parts." "Yes," said Paterson, "a confederacy supposes
sovereignty in the members composing it, and sovereignty supposes
equality. If we are to be considered as a nation, all state distinctions
must be abolished, the whole must be thrown into hotchpot, and when an
equal division is made then there may be fairly an equality of
representation." This argument was repeated with a triumphant air, as
seeming to reduce the Virginia plan to absurdity. Paterson went on to
say that "there was no more reason that a great individual state,
contributing much, should have more votes than a small one, contributing
little, than that a rich individual citizen should have more votes than
an indigent one. If the ratable property of A was to that of B as forty
to one, ought A, for that reason, to have forty times as many votes as
B?... Give the large states an influence in proportion to their
magnitude, and what will be the consequence? Their ambition will be
proportionally increased, and the small states will have everything to
fear. It was once proposed by Galloway [in the first Continental
Congress] that America should be represented in the British Parliament,
and then be bound by its laws. America could not have been entitled to
more than one third of the representatives which would fall to the share
of Great Britain: would American rights and interests have been safe
under an authority thus constituted?" Then, warming with the subject, he
exclaimed, If the great states wish to unite on such a plan, "let them
unite if they please, but let them remember that they have no authority
to compel the others to unite.... Shall I submit the welfare of New
Jersey with five votes in a council where Virginia has sixteen?... I
will never consent to the proposed plan. I will not only oppose it here,
but on my return home will do everything in my power to defeat it there.
Neither my state nor myself will ever submit to tyranny."
Paterson was ably answered by James Wilson, of Pennsylvania, who pointed
out the absurdity of giving 180,000 men in one part of the country as
much weight in the national legislature as 750,000 in another part. It
is unjust, he said. "The gentleman from New Jersey is candid. He
declares his opinions boldly. I commend him for it. I will be equally
candid.... I never will confederate on his principles." The convention
grew nervous and excited over this seemingly irreconcilable antagonism.
The discussion was kept up with much learning and acuteness by Madison,
Ellsworth, and Martin, and history was ransacked for testimony from the
Amphiktyonic Council to Old Sarum, and back again to the Lykian League.
Madison, rightly reading the future, declared that if once the proposed
union should be formed, the real danger would come not from the rivalry
between large and small states, but from the antagonistic interests of
the slave-holding and non-slaveholding states. Hamilton pointed out that
in the state of New York five counties had a majority of the
representatives, and yet the citizens of the other counties were in no
danger of tyranny, as the laws have an equal operation upon all. Rufus
King called attention to the fact that the rights of Scotland were
secure from encroachments, although her representation in Parliament was
necessarily smaller than that of England. But New Jersey and Delaware,
mindful of recent grievances, were not to be argued down or soothed.
Gunning Bedford of Delaware was especially violent. "Pretences to
support ambition," said he, "are never wanting. The cry is, Where is the
danger? and it is insisted that although the powers of the general
government will be increased, yet it will be for the good of the whole;
and although the three great states form nearly a majority of the people
of America, they never will injure the lesser states. _Gentlemen, I do
not trust you._ If you possess the power, the abuse of it could not be
checked; and what then would prevent you from exercising it to our
destruction?... Sooner than be ruined, _there are foreign powers who
will take us by the hand_. I say this not to threaten or intimidate, but
that we should reflect seriously before we act." This language called
forth a rebuke from Rufus King. "I am concerned," said he, "for what
fell from the gentleman from Delaware,--_take a foreign power by the
hand!_ I am sorry he mentioned it, and I hope he is able to excuse it to
himself on the score of passion."
[Sidenote: The Connecticut compromise.]
The situation had become dangerous. "The convention," said Martin, "was
on the verge of dissolution, scarce held together by the strength of a
hair." When things were looking darkest, Oliver Ellsworth and Roger
Sherman suggested a compromise. "Yes," said Franklin, "when a joiner
wishes to fit two boards, he sometimes pares off a bit from both." The
famous Connecticut compromise led the way to the arrangement which was
ultimately adopted, according to which the national principle was to
prevail in the House of Representatives, and the federal principle in
the Senate. But at first the compromise met with little favour. Neither
party was willing to give way. "No compromise for us," said Luther
Martin. "You must give each state an equal suffrage, or our business is
at an end." "Then we are come to a full stop," said Roger Sherman. "I
suppose it was never meant that we should break up without doing
something." When the question as to allowing equality of suffrage to the
states in the Federal Senate was put to vote, the result was a tie.
Connecticut, New York, New Jersey, Delaware, and Maryland--five
states--voted in the affirmative; Massachusetts, Pennsylvania, Virginia,
North Carolina, and South Carolina--five states--voted in the negative;
the vote of Georgia was divided and lost. It was Abraham Baldwin, a
native of Connecticut and lately a tutor in Yale College, a recent
emigrant to Georgia, who thus divided the vote of that state, and
prevented a decision which would in all probability have broken up the
convention. His state was the last to vote, and the house was hushed in
anxious expectation, when this brave and wise young man yielded his
private conviction to what he saw to be the paramount necessity of
keeping the convention together. All honour to his memory!
The moral effect of the tie vote was in favour of the Connecticut
compromise; for no one could doubt that the little states, New Hampshire
and Rhode Island, had they been represented in the division, would have
voted upon that side. The matter was referred to a committee as
impartially constituted as possible, with Elbridge Gerry as chairman;
and On the 5th of July, after a recess of three days, the committee
reported in favour of the compromise. Fresh objections on the part of
the large states were now offered by Wilson and Gouverneur Morris, and
gloom again overhung the convention. Gerry said that, while he did not
fully approve of the compromise, he had nevertheless supported it,
because he felt sure that if nothing were done war and confusion must
ensue, the old confederation being already virtually at an end. George
Mason observed that "it could not be more inconvenient for any
gentleman to remain absent from his private affairs than it was for him;
but he would bury his bones in that city rather than expose his country
to the consequences of a dissolution of the convention." Mason's
subsequent behaviour was hardly in keeping with the promise of this
brave speech, and in Gerry we shall observe like inconsistency. At
present a timely speech from Madison soothed the troubled waters; but it
was only after eleven days of somewhat more tranquil debate that the
compromise was adopted on the 16th of July. Even then it was but
narrowly secured. The ayes were Connecticut, New Jersey, Delaware,
Maryland, and North Carolina,--five states; the noes were Pennsylvania,
Virginia, South Carolina, and Georgia,--four states; Gerry and Strong
against King and Gorham divided the vote of Massachusetts, which was
thus lost. New York, for reasons presently to be stated, was absent. It
is accordingly to Elbridge Gerry and Caleb Strong that posterity are
indebted for here preventing a tie, and thus bringing the vexed question
to a happy issue.
According to the compromise secured with so much difficulty, it was
arranged that in the lower house population was to be represented, and
in the upper house the states, each of which, without regard to size,
was forever to be entitled to two senators. In the lower house there was
to be one representative for every 40,000 inhabitants, but at
Washington's suggestion the number was changed to 30,000, so as to
increase the house, which then seemed likely to be too small in numbers.
Some one suggested that with the growth of population that rate would
make an unwieldy house within a hundred and fifty years from that time,
whereat Gorham of Massachusetts laughed to scorn the idea that any
system of government they could devise in that room could possibly last
a hundred and fifty years. The difficulty has been surmounted by
enlarging from time to time the basis of representation. It now seemed
inadvisable that the senators should be chosen by the lower house out of
persons nominated by the state legislatures; and it was accordingly
decided that they should be not merely nominated, but elected, by the
state legislatures. Thus the Senate was made quite independent of the
lower house. At the same time, the senators were to vote as individuals,
and thus the old practice of voting by states, except in certain
peculiar emergencies, was finally done away with.
[Sidenote: It was a decisive victory for Madison's scheme.]
[Sidenote: Irreconcilables go home.]
It is seldom, if ever, that a political compromise leaves things evenly
balanced. Almost every such arrangement, when once set working, weighs
down the scales decidedly to the one side or the other. The Connecticut
compromise was really a decisive victory for Madison and his party,
although it modified the Virginia plan so considerably. They could well
afford to defer to the fears and prejudices of the smaller states in the
structure of the Senate, for by securing a lower house, which
represented the American people, and not the American states, they won
the whole battle in so far as the question of radically reforming the
government was concerned. As soon as the foundation was thus laid for a
government which should act directly upon individuals, it obviously
became necessary to abandon the articles of confederation, and work out
a new constitution in all its details. The plan, as now reported,
omitted the obnoxious adjective "national," and spoke of the _federal_
legislature and _federal_ courts. But to the men who were still blindly
wedded to the old confederation this soothing change of phraseology did
not conceal their defeat. On the very day that the compromise was
favourably reported by the committee, Yates and Lansing quit the
convention in disgust, and went home to New York. After the departure of
these uncongenial colleagues, Hamilton might have acted with power, had
he not known too well that the sentiment of his state did not support
him. As a mere individual he could do but little, and accordingly he
went home for a while to attend to pressing business, returning just in
time to take part in the closing scenes. His share in the work of
framing the Federal Constitution was very small. About the time that
Hamilton returned, Luther Martin, whose wrath had waxed hotter every
day, as he saw power after power extended to the federal government, at
length gave way and went back to Maryland, vowing that he would have
nothing more to do with such high-handed proceedings.
While the Connecticut compromise thus scattered a few scintillations of
discontent, and relieved the convention of some of its most discordant
elements, its general effect was wonderfully harmonizing. The men who
had opposed the Virginia plan only through their dread of the larger
states were now more than conciliated. The concession of equal
representation in the Senate turned out to have been a master stroke of
diplomacy. As soon as the little states were assured of an equal share
in the control of one of the two central legislative bodies, they
suddenly forgot their scruples about thoroughly overhauling the
government, and none were readier than they to intrust extensive powers
to the new Congress. Paterson of New Jersey, the fiercest opponent of
the Virginia plan, became from that time forth to the end of his life
the most devoted of Federalists.
[Sidenote: Other antagonisms; vague dread of the future west.]
[Sidenote: Antagonism between slave states and free states.]
That first step which proverbially gives the most trouble had now been
fairly taken. But other compromises were needed before the work of
construction could properly be carried out. As the antagonism between
great and small states disappeared from the scene, other antagonisms
appeared. It is worth noting that just for a moment there was revealed a
glimmering of jealousy and dread on the part of the eastern states
toward those of which the foundations were laid in the northwestern
territory. Many people in New England feared that their children would
be drawn westward in such numbers as to create immense states beyond the
Ohio; and thus it was foreseen that the relative political weight of New
England in the future would be diminished. To a certain extent this
prediction has been justified by events, but Roger Sherman rightly
maintained that it afforded no just grounds for dread. King and Gerry
introduced a most illiberal and mischievous motion, that the total
number of representatives from new states must never be allowed to
exceed the total number from the original thirteen. Such an arrangement,
which would surely have been enough to create that antagonism between
east and west which it sought to forestall and avoid, was supported by
Massachusetts and Connecticut, with Delaware and Maryland; but it was
defeated by the combination of New Jersey with the four states south of
Maryland. The ground was thus cleared for a very different kind of
sectional antagonism,--that which, as Madison truly said, would prove
the most deep-seated and enduring of all,--the antagonism between north
and south. The first great struggle between the pro-slavery and
anti-slavery parties began in the Federal Convention, and it resulted in
the first two of the long series of compromises by which the
irrepressible conflict was postponed until the north had waxed strong
enough to confront the dreaded spectre of secession, and, summoning all
its energies in one stupendous effort, exorcise it forever. From this
moment down to 1865 we shall continually be made to realize how the
American people had entered into the shadow of the coming Civil War
before they had fairly emerged from that of the Revolution; and as we
pass from scene to scene of the solemn story, we shall learn how to be
forever grateful for the sudden and final clearing of the air wrought by
that frightful storm which men not yet old can still so well remember.
The first compromise related to the distribution of representatives
between north and south. Was representation in the lower house of
Congress to be proportioned to wealth, or to population; and if the
latter, were all the inhabitants, or only all the free inhabitants, to
be counted? It was soon agreed that wealth was difficult to reckon and
population easy to count; and to an extent sufficient for all ordinary
purposes, population might serve as an index of wealth. A state with
500,000 inhabitants would be in most cases richer than one with 400,000.
In those days, when cities were few and small, this was approximately
true. In our day it is not at all true. A state with large commercial
and manufacturing cities is sure to be much richer than a state in which
the population is chiefly rural. The population of Massachusetts is
somewhat smaller than that of Indiana; but her aggregate wealth is more
than double that of Indiana. Disparities like this, which do not trouble
us to-day, would have troubled the Federal Convention. We no longer
think it desirable to give political representation to wealth, or to
anything but persons. We have become thoroughly democratic, but our
great-grandfathers had not. To them it seemed quite essential that
wealth should be represented as well as persons; but they got over the
main difficulty easily, because under the economic conditions of that
time population could serve roughly as an index to wealth, and it was
much easier to count noses than to assess the value of farms and stock.
[Sidenote: Were slaves to be reckoned as persons or as chattels?]
But now there was in all the southern states, and in most of the
northern, a peculiar species of collective existence, which might be
described either as wealth or as population. As human beings the slaves
might be described as population, but in the eye of the law they were
chattels. In the northern states slavery was rapidly disappearing, and
the property in negroes was so small as to be hardly worth considering;
while south of Mason and Dixon's line this peculiar kind of property was
the chief wealth of the states. But clearly, in apportioning
representation, in sharing political power in the federal assembly, the
same rule should have been applied impartially to all the states. At
this point, Pierce Butler and Cotesworth Pinckney of South Carolina
insisted that slaves were part of the population, and as such must be
counted in ascertaining the basis of representation. A fierce and
complicated dispute ensued. The South Carolina proposal suggested a
uniform rule, but it was one that would scarcely alter the political
weight of the north, while it would vastly increase the weight of the
south; and it would increase it most in just the quarter where slavery
was most deeply rooted. The power of South Carolina, as a member of the
Union, would be doubled by such a measure. Hence the northern delegates
maintained that slaves, as chattels, ought no more to be reckoned as
part of the population than houses or ships. "Has a man in Virginia,"
exclaimed Paterson, "a number of votes in proportion to the number of
his slaves? And if negroes are not represented in the states to which
they belong, why should they be represented in the general
government?... If a meeting of the people were to take place in a slave
state, would the slaves vote? They would not. Why then should they be
represented in a federal government?" "I can never agree," said
Gouverneur Morris, "to give such encouragement to the slave-trade as
would be given by allowing the southern states a representation for
their negroes.... I would sooner submit myself to a tax for paying for
all the negroes in the United States than saddle posterity with such a
constitution."
[Sidenote: The three fifths compromise; a genuine English solution, if
ever there was one.]
The attitude taken by Virginia was that of peace-maker. On the one hand,
such men as Washington, Madison, and Mason, who were earnestly hoping to
see their own state soon freed from the curse of slavery, could not fail
to perceive that if Virginia were to gain an increase of political
weight from the existence of that institution, the difficulty of getting
the state legislature to abolish it would be enhanced. But on the other
hand, they saw that South Carolina was inexorable, and that her refusal
to adopt the Constitution for this reason would certainly carry Georgia
with her, and probably North Carolina, also. Even had South Carolina
alone been involved, it was not simply a question of forming a Union
which should either include her or leave her out in the cold. The case
was much more complicated than that. It was really doubtful if, without
the cordial assistance of South Carolina, a Union could be formed at
all. A Federal Constitution had not only to be framed, but it had to be
presented to the thirteen states for adoption. It was by no means clear
that enough states would ratify it to enable the experiment of the new
government to go into operation. New York and Rhode Island were known to
be bitterly opposed to it; Massachusetts could not be counted on as
sure; to add South Carolina to this list would be to endanger
everything. The event justified this caution. We shall hereafter see
that it was absolutely necessary to satisfy South Carolina, and that but
for her ratification, coming just at the moment when it did, the work of
the Federal Convention would probably have been done in vain. It was a
clear perception of the wonderful complication of interests involved in
the final appeal to the people that induced the Virginia statesmen to
take the lead in a compromise. Four years before, in 1783, when Congress
was endeavouring to apportion the quotas of revenue to be required of
the several states, a similar dispute had arisen. If taxation were to be
distributed according to population, it made a great difference whether
slaves were to be counted as population or not. If slaves were to be
counted, the southern states would have to pay more than their equitable
share into the federal treasury; if slaves were not to be counted, it
was argued at the north that they would be paying less than their
equitable share. Consequently, at that time the north had been inclined
to maintain that the slaves were population, while the south had
preferred to regard them as chattels. Thus we see that in politics, as
well as in algebra, it makes all the difference in the world whether you
start with _plus_ or with _minus_. On that occasion Madison had offered
a successful compromise, in which a slave figured as three fifths of a
freeman; and Rutledge of South Carolina, who was now present in the
convention, had supported the measure. Madison now proposed the same
method of getting over the difficulty about representation, and his
compromise was adopted. It was agreed that in counting population,
whether for direct taxation or for representation in the lower house of
Congress, five slaves should be reckoned as three individuals.
[Sidenote: In other words, it was the best solution attainable under the
circumstances.]
All this was thoroughly illogical, of course; it left the question
whether slaves are population or chattels for theorizers to wrangle
over, and for future events to decide. It was easy for James Wilson to
show that there was neither rhyme nor reason in it: but he subscribed to
it, nevertheless, just as the northern abolitionists, Rufus King and
Gouverneur Morris, joined with Washington and Madison, and with the
pro-slavery Pinckneys, in subscribing to it, because they all believed
that without such a compromise the Constitution would not be adopted;
and in this there can be little doubt that they were right. The evil
consequences were unquestionably very serious indeed. Henceforth, so
long as slavery lasted, the vote of a southerner counted for more than
the vote of a northerner; and just where negroes were most numerous the
power of their masters became greatest. In South Carolina there soon
came to be more blacks than whites, and the application of the rule
therefore went far toward doubling the vote of South Carolina in the
House of Representatives and in the electoral college. Every five
slaveholders down there were equal in political weight to not less than
eight farmers or merchants in the north; and thus this troublesome state
acquired a power of working mischief out of all proportion to her real
size. At a later date the operation of the rule in Mississippi was
similar; and in general it was just the most backward and barbarous
parts of the Union that were thus favoured at the expense of the most
civilized parts. Admitting all this, however, it remains undeniable that
the Constitution saved us from anarchy; and there can be little doubt
that slavery and every other remnant of barbarism in American society
would have thriven far more lustily under a state of chronic anarchy
than was possible under the Constitution. Four years of concentrated
warfare, animated by an intense and lofty moral purpose, could not hurt
the character or mar the fortunes of the people, like a century of
aimless and miscellaneous squabbling over a host of petty local
interests. The War of Secession was a terrible ordeal to pass through;
but when one tries to picture what might have happened in this fair land
without the work of the Federal Convention, the imagination stands
aghast.
[Sidenote: Compromise between New England and South Carolina as to the
foreign slave-trade.]
The second great compromise between northern and southern interests
related to the abolition of the foreign slave-trade and the power of the
federal government over commerce. All the states except South Carolina
and Georgia wished to stop the importation of slaves; but the physical
conditions of rice and indigo culture exhausted the negroes so fast
that these two states felt that their industries would be dried up at
the very source if the importation of fresh negroes were to be stopped.
Cotesworth Pinckney accordingly declared that South Carolina would
consider a vote to abolish the slave-trade as simply a polite way of
telling her that she was not wanted in the Union. On the other hand, the
three New England states present in the convention had made up their
minds that it would not do to allow the several states any longer to
regulate commerce each according to its own whim. It was of vital
importance that this power should be taken from the states and lodged in
Congress; otherwise, the Union would soon be rent in pieces by
commercial disputes. The policy of New York had thoroughly impressed
this lesson upon all the neighbouring states. But none of the southern
states were in favour of granting this power unreservedly to Congress.
If a navigation act could be passed by a simple majority in Congress, it
was feared that the New Englanders would get all the carrying trade into
their own hands, and then charge ruinous freights for carrying rice,
indigo, and tobacco to the north and to Europe. On this point,
accordingly, the southern delegates acted as a unit in insisting that
Congress should not be empowered to pass navigation acts, except by a
two thirds vote of both houses. This would have tied the hands of the
federal government most unfortunately; and the New Englanders,
enlightened by their own interests, saw it to be so. Here were the
materials ready for a compromise, or, as the stout abolitionist,
Gouverneur Morris, truly called it, a "bargain" between New England and
the far south. New Hampshire, Massachusetts, and Connecticut consented
to the prolonging of the foreign slave-trade for twenty years, or until
1808; and in return South Carolina and Georgia consented to the clause
empowering Congress to pass navigation acts and otherwise regulate
commerce by a simple majority of votes. At the same time, as a
concession to rice and indigo, the New Englanders agreed that Congress
should be forever prohibited from taxing exports; and thus one remnant
of mediæval political economy was neatly swept away.
[Sidenote: This last compromise seems to make the adhesion of Virginia
doubtful.]
This compromise was carried against the sturdy opposition of Virginia.
The language of George Mason of Virginia is worth quoting, for it was
such as Theodore Parker might have used. He called the slave-trade "this
infernal traffic." "Slavery," said he, "discourages arts and
manufactures. The poor despise labour when performed by slaves. They
prevent the immigration of whites, who really strengthen and enrich a
country. They produce the most pernicious effect on manners. Every
master of slaves is born a petty tyrant. They bring the judgment of
Heaven on a country. As nations cannot be rewarded or punished in the
next world, they must be in this. By an inevitable chain of causes and
effects, Providence punishes national sins by national calamities." But
these prophetic words were powerless against the combination of New
England with the far south. One thing was now made certain,--that the
vast influence of Rutledge and the Pinckneys would be thrown
unreservedly in behalf of the new Constitution. "I will confess," said
Cotesworth Pinckney, "that I had prejudices against the eastern states
before I came here, but I have found them as liberal and candid as any
men whatever." But this compromise, which finally secured South Carolina
and Georgia, made Virginia for the moment doubtful; for Mason and
Randolph were so disgusted at the absolute power over commerce conceded
to Congress that, when the Constitution was finished and engrossed on
paper, they refused to sign it.
It is difficult to read this or any other episode in our history whereby
negro slavery was extended and fostered without burning indignation. But
this is not the proper mood for the historian, whose aim is to interpret
men's actions by the circumstances of their time, in order to judge
their motives correctly. In 1787 slavery was the cloud like unto a man's
hand which portended a deluge, but those who could truly read the signs
were few. From north to south, slavery had been slowly dying out for
nearly fifty years. It had become extinct in Massachusetts, it was
nearly so in all the other northern states, and it had just been forever
prohibited in the national domain. In Maryland and Virginia there was a
strong and growing party in favour of abolition. The movement had even
gathered strength in North Carolina. Only the rice-swamps of the far
south remained wedded to their idols. It was quite generally believed
that slavery was destined speedily to expire, to give place to a better
system of labour, without any great danger or disturbance; and this
opinion was distinctly set forth by many delegates in the convention.[7]
Even Charles Pinckney went so far as to express a hope that South
Carolina, if not too much meddled with, would by and by voluntarily rank
herself among the emancipating states; but his older cousin declared
himself bound in candour to acknowledge that there was very little
likelihood indeed of so desirable an event. Not even these South
Carolinians ventured to defend slavery on principle. This belief in the
moribund condition of slavery prevented the convention from realizing
the actual effect of the concessions which were made. Scarcely any
cotton was grown at that time, and none was sent to England. The
industrial revolution about to be wrought by the inventions of Arkwright
and Hargreaves, Cartwright and Watt and Whitney, could not be foreseen.
Nor could it be foreseen that presently, when there should thus arise a
great demand for slaves from Virginia as a breeding-ground, the
abolitionist party in that state would disappear, leaving her to join
in the odious struggle for introducing slavery into the national domain.
Though these things were so soon to happen, the wisest man in 1787 could
not foresee them. The convention hoped that twenty years would see not
only the end of the foreign slave-trade, but the restriction and
diminution of slavery itself. It was in such a mood that they completed
the compromise by recommending a tariff of ten dollars a head upon all
negroes imported, while at the same time a clause was added for insuring
the recovery of fugitive slaves, quite similar to the clause in the
ordinance for the government of the northwestern territory.
[Sidenote: The foundations of the Constitution were thus laid in
compromise.]