foundations of our Federal Constitution. The first compromise, by
conceding equal representation to the states in the Senate, enlisted the
small states in favour of the new scheme, and by establishing a national
system of representation in the lower house, prepared the way for a
government that could endure. This was Madison's great victory, secured
by the aid of Sherman and Ellsworth, without which nothing could have
been effected. The second compromise, at the cost of giving
disproportionate weight to the slave states, gained their support for
the more perfect union that was about to be formed. The third
compromise, at the cost of postponing for twenty years the abolition of
the foreign slave-trade, secured absolute free-trade between the states,
with the surrender of all control over commerce into the hands of the
federal government. After these steps had been taken, the most difficult
and dangerous part of the road had been travelled; the remainder, though
extremely important, was accomplished far more easily. It was mainly the
task of building on the foundations already laid.
[Sidenote: Powers granted to the federal government.]
In the grants to the federal government of powers hitherto reserved to
the several states, the diversity of opinion among the members of the
convention was but slight compared to the profound antagonism which had
been allayed by the three initial compromises. It was admitted, as a
matter of course, that the federal government alone could coin money,
fix the standard of weights and measures, establish post-offices and
post-roads, and grant patents and copyrights. To it alone was naturally
intrusted the whole business of war and of international relations. It
could define and punish felonies committed on the high seas; it could
maintain a navy and issue letters of marque and reprisal; it could
support an army and provide for calling forth the militia to execute the
laws of the Union, to suppress insurrections, and to repel invasions.
But in relation to this question of the army and the militia there was
some characteristic discussion. It was at first proposed that Congress
should have the power "to subdue a rebellion in any state on the
application of its legislature." The Shays rebellion was then fresh in
the memory of all the delegates, and their arguments simply reflected
the impression which that unpleasant affair had left upon them. Charles
Pinckney, Gouverneur Morris, and John Langdon wished to have the power
given to Congress unconditionally, without waiting for an application
from the legislature. But Gerry, who had been on the ground, spoke
sturdily against such a needless infraction of state rights. He was
utterly opposed, he said, to "letting loose the myrmidons of the United
States on a state without its own consent. The states will be the best
judges in such cases. More blood would have been spilt in Massachusetts
in the late insurrection if the general authority had intermeddled."
Ellsworth suggested that Congress should use its discretion only in
cases where the legislature of the state could not meet; but Randolph
forcibly replied that if Congress is to judge whether a state
legislature can or cannot meet, the difficulty is in no wise surmounted.
Gerry's view at last prevailed, and in accordance therewith it was
decided that the federal power should guarantee to every state a
republican form of government, and should protect each of them against
invasion; and on application of the legislature, or of the executive (if
the legislature could not be convened), it should protect them against
domestic violence. This arrangement did not fully provide against such
an emergency as that of rival and hostile executives in the same state,
as under the so-called "carpet-bag" governments which followed after the
War of Secession, but it was doubtless as sound a provision as any
general constitution could make.
The federal government was further empowered to borrow money on the
credit of the United States; and it was declared that all debts
contracted and engagements entered into before the adoption of this
constitution should be as valid against the United States under this
constitution as under the confederation. There was to be no repudiation
or readjustment of debts on the ground of inability to pay. Congress was
further empowered to establish a uniform rule of naturalization and a
uniform law of bankruptcy. But it was prohibited from passing bills of
attainder or _ex post facto_ laws, or suspending the writ of _habeas
corpus_, except under the stress of rebellion or invasion. It was
provided that all duties, imposts, or excises should be uniform
throughout the United States. The federal government could not give
preference to one state over another in its commercial regulations. It
could not tax exports. It could not draw money from the treasury save by
due process of appropriation, and all bills relating to the raising of
revenue must originate in the lower house, which directly represented
the people. Congress was empowered to admit new states into the Union,
but it was not allowed to interfere with the territorial areas of states
already existing without the express consent of the local legislatures.
To insure the independence of the federal government, it was provided
that senators and representatives should be paid out of the federal
treasury, and not by their respective states, as had been the case under
the confederation. Except for such offences as treason, felony, or
breach of the peace, they should be "privileged from arrest during their
attendance, at the session of their respective houses, and in going to
or returning from the same; and for any speech or debate in either
house" they were not to be "questioned in any other place." It was
further provided that a territory not exceeding ten miles square should
be ceded to the United States, and set apart as the site of a federal
city, in which the general government should ever after hold its
meetings, erect its buildings, and exercise exclusive jurisdiction.
During the past four years the Continental Congress had skipped about
from Philadelphia to Princeton, to Annapolis, to Trenton, to New York,
until it had become a laughing-stock, and the newspapers were full of
squibs about it. Verily, said one facetious editor, the Lord shall make
this government like unto a wheel, and keep it rolling back and forth
betwixt Dan and Beersheba, and grant it no rest this side of Jordan.
This inconvenience was now to be remedied. Congress was hereafter to
have a federal police force at its disposal, and was never more to be
reduced to the humiliation of a fruitless appeal to the protecting arm
of a state government, as at Philadelphia in the summer of 1783.
Furthermore, the Continental Congress had of late years commanded so
little respect, and had offered so few temptations to able men in quest
of political distinction, that its meetings were often attended by no
more than eight or ten members. It was actually on the point of dying a
natural death through sheer lack of public interest in it. To prevent
any possible continuance of such a disgraceful state of things, it was
agreed that the Federal Congress should be "authorized to compel the
attendance of absent members, in such manner and under such penalties
as each house may provide." Had the political life of the country
continued to go on as under the confederation, it is very doubtful
whether such a provision as this would have remedied the evil. But the
new Federal Congress, drawing its life directly from the people, was
destined to afford far greater opportunities for a political career than
were afforded by the feeble body of delegates which preceded it; and a
penal clause, compelling members to attend its meetings, was hardly
needed under the new circumstances which arose.
[Sidenote: Powers denied to the states.]
[Sidenote: Emphatic condemnation of paper money.]
While the powers of the federal government were thus carefully defined,
at the same time several powers were expressly denied to the states. No
state was allowed, without explicit authority from Congress, to lay any
tonnage or custom-house duties, "keep troops or ships of war in time of
peace, enter into any agreement or compact with another state or with a
foreign power, or engage in war unless actually invaded, or in such
imminent danger as will not admit of delays." The following clause
provided against a recurrence of some of the worst evils which had been
felt under the "league of friendship:" "No state shall enter into any
treaty, alliance, or confederation; grant letters of marque and
reprisal; coin money; emit bills of credit; make anything but gold and
silver coin a tender in payment of debts; pass any bill of attainder,
_ex post facto_ law, or law impairing the obligation of contracts; or
grant any title of nobility." Henceforth there was to be no repetition
of such disgraceful scenes as had lately been witnessed in Rhode
Island. So far as the state legislatures were concerned, paper money was
to be ruled out forever. But how was it with the federal government? By
the articles of confederation the United States were allowed to issue
bills of credit, and make them a tender in payment of debts. In the
Federal Convention the committee of detail suggested that this
permission might remain under the new constitution; but the suggestion
was almost unanimously condemned. All the ablest men in the convention
spoke emphatically against it. Gouverneur Morris urged that the federal
government, no less than the state governments, should be expressly
prohibited from issuing bills of credit, or in any wise making its
promissory notes a legal tender. He went over the history of the past
ten years; he called attention to the obstinacy with which the wretched
device had been resorted to again and again, after its evils had been
thrust before everybody's eyes; and he proved himself a true prophet
when he said that if the United States should ever again have a great
war to conduct, people would have forgotten all about these things, and
would call for fresh issues of inconvertible paper, with similar
disastrous results. Now was the time to stop it once for all. "Yes,"
echoed Roger Sherman, "this is the favourable crisis for crushing paper
money." "This is the time," said his colleague, Ellsworth, "to shut and
bar the door against paper money, which can in no case be necessary.
Give the government credit, and other resources will offer. The power
may do harm, never good." There was no way, he added, in which powerful
friends could so soon be gained for the new constitution as by
withholding this power from the government. James Wilson took the same
view. "It will have the most salutary influence on the credit of the
United States," said he, "to remove the possibility of paper money."
"Rather than grant the power to Congress," said John Langdon, "I would
reject the whole plan." "The words which grant this power," said George
Read of Delaware, "if not struck out, will be as alarming as the mark of
the Beast, in the Apocalypse." On none of the subjects that came up for
discussion during that summer was the convention more nearly unanimous
than in its condemnation of paper money. The only delegate who ventured
to speak in its favour was Mercer of Maryland. What Hamilton would have
said, if he had been present that day, we may judge from his vigorous
words published some time before. The power to emit an inconvertible
paper as a sign of value ought never hereafter to be used; for in its
very nature, said he, it is "pregnant with abuses, and liable to be made
the engine of imposition and fraud, holding out temptations equally
pernicious to the integrity of government and to the morals of the
people." Paterson called it "sanctifying iniquity by law." The same
views were entertained by Washington and Madison. There were a few
delegates, however, who thought it unsafe to fetter Congress absolutely.
To use Luther Martin's expression, they did not set themselves up to be
"wise beyond every event." George Mason said he "had a mortal hatred to
paper money, yet, as he could not foresee all emergencies, he was
unwilling to tie the hands of the legislature. The late war," he
thought, "could not have been carried on had such a prohibition
existed." Randolph spoke to the same effect. It was finally decided, by
the vote of nine states against New Jersey and Maryland, that the power
to issue inconvertible paper should not be granted to the federal
government. An express prohibition, such as had been adopted for the
separate states, was thought unnecessary. It was supposed that it was
enough to withhold the power, since the federal government would not
venture to exercise it unless expressly permitted in the Constitution.
"Thus," says Madison, in his narrative of the proceedings, "the pretext
for a paper currency, and particularly for making the bills a tender,
either for public or private debts, was cut off." Nothing could be more
clearly expressed than this. As Mr. Justice Field observes, in his able
dissenting opinion in the recent case of Juilliard _vs._ Greenman, "if
there be anything in the history of the Constitution which can be
established with moral certainty, it is that the framers of that
instrument intended to prohibit the issue of legal-tender notes both by
the general government and by the states, and thus prevent interference
with the contracts of private parties." Such has been the opinion of our
ablest constitutional jurists, Marshall, Webster, Story, Curtis, and
Nelson. There can be little doubt that, according to all sound
principles of interpretation, the Legal Tender Act of 1862 was passed in
flagrant violation of the Constitution. Could Ellsworth and Morris,
Langdon and Madison, have foreseen the possibility of such extraordinary
judgments as have lately emanated from the Supreme Court of the United
States, they would doubtless have insisted upon the express prohibition,
instead of leaving it to posterity to root out the plague, as it will
apparently some time have to do, by the cumbrous process of an amendment
to the Constitution.
The work of the convention, as thus far considered, related to the
legislative department of the new government. While these discussions
were going on, much attention had been paid, from time to time, to the
characteristics of the proposed federal executive. The debates on this
question, though long kept up, were far less acrimonious than the
debates on representation and the power of Congress over trade, because
here there was no obvious clashing of local interests. But for this very
reason the convention had no longer so clear a chart to steer by. On the
question of the slave-trade, the Pinckneys knew accurately just what
South Carolina wanted, how much it would do to claim, and how far it
would be necessary to yield. As to the regulation of commerce by a bare
majority of votes in Congress, King and Sherman on the one hand, Mason
and Randolph on the other, were able to pursue a thoroughly definite
course of action in behalf of what were supposed to be the special
interests of New England or of Virginia. Consequently, the debates kept
close to the point; the controversy was keen, and sometimes, as we have
seen, angry.
[Sidenote: Debates as to the federal executive.]
It was very different with the question as to the federal executive.
Upon this point the discussions were guided rather by general
speculations as to what would be most likely to work well, and
accordingly they wandered far and wide. Some of the delegates seemed to
think we should sooner or later come to adopt a hereditary monarchy, and
that the chief thing to be done was to postpone the event as long as
possible. Many wild ideas were broached: such, for example, as a
triple-headed executive, to represent the eastern, middle, and southern
states, somewhat as associated Roman emperors at times administered
affairs in the different portions of an undivided empire. The Virginia
plan had not stated whether its proposed executive was to be single or
plural, because the Virginia delegates could not agree. Madison wished
it to be single, to insure greater efficiency, but to Randolph and Mason
a tyranny seemed to lurk in such an arrangement. When James Wilson and
Charles Pinckney suggested that the executive power should be intrusted
into the hands of one man, a profound silence fell upon the convention.
No one spoke for several minutes, until Washington, from the chair,
asked if he should put the question. Franklin then got up, and said it
was an interesting subject, and he should like to hear what the members
had to say; and so the ball was set rolling. Rutledge said there was no
need of their being so shy. A man might frankly express his opinions,
and afterwards change them if he saw good reason for so doing. For his
part, he was in favour of vesting the executive power in a single
person, to secure efficiency of administration and concentration of
responsibility; but he would not give him the power to declare war and
make peace. Sherman then made the far-reaching suggestion, that the
executive magistracy was really "nothing more than an institution for
carrying the will of the legislature into effect; that the person or
persons ought to be appointed by and accountable to the legislature
only, which was the depository of the supreme will of the society. As
they were the best judges of the business which ought to be done by the
executive department, ... he wished the number might not be fixed, but
that the legislature should be at liberty to appoint one or more, as
experience might dictate." It would greatly have astonished the
convention had they been told that this suggestion of Sherman's was a
move in the very same line of development which the British government
had been following for more than half a century; yet such, as we shall
presently see, was the case. Had this point been understood then as we
understand it now, the proceedings of the convention could not have
failed to be profoundly affected by it. As it was, the suggestion did
not receive due attention, and the stream of discussion was turned into
a very different channel. Wilson argued powerfully in favour of a single
chief magistrate, and this view finally prevailed.
[Sidenote: There should be a president, but how should he be elected.]
After it had been decided that there should be one man set in so high a
position, there was endless discussion as to whether he should be
elected by the people or by Congress, and whether he should serve for
one, or two, or three, or four, or ten, or fifteen years. "Better call
it twenty," said Rufus King, sarcastically; "it is the average reign of
princes." Hamilton and Gouverneur Morris would have had him chosen for
life, subject to removal for misbehaviour; but the preference for a
short term of service was soon manifest. As to the method of election,
opinions oscillated back and forth for several weeks. Wilson said "he
was almost unwilling to declare the mode which he wished to take place,
being apprehensive that it might appear chimerical. He would say,
however, at least, that in theory he was for an election by the people.
Experience, particularly in New York and Massachusetts, showed that an
election of the first magistrate by the people at large was both a
convenient and a successful mode. The objects of choice in such cases
must be persons whose merits have general notoriety." Mason, Rutledge,
and Strong agreed with Sherman that the executive should be chosen by
the legislature; but Washington, Madison, Gerry, and Gouverneur Morris
strongly disapproved of this. Morris argued that an election by the
national legislature would be the work of intrigue and corruption, like
the election of the king of Poland by a diet of nobles; but Mason
declared, on the other hand, that "to refer the choice of a proper
character for a chief magistrate to the people would be as unnatural as
to refer a trial of colours to a blind man." A decision was first
reached against an election by Congress, because it was thought that if
the chief magistrate should prove himself thoroughly competent he ought
to be reëligible; but if reëligible he would be exposed to the
temptation of truckling to the most powerful party or cabal in Congress,
in order to secure his reëlection. It did not occur to any one to
suggest that under ordinary circumstances the executive ought to follow
the policy of the most powerful party in Congress, and that he might at
the same time preserve all needful independence by being clothed with
the power of dissolving Congress and making an appeal to the people in a
new election. It is interesting to consider what might have come of such
a suggestion, following upon the heels of that made by Roger Sherman. As
we shall presently see, it would have immeasurably simplified the
machinery of our government, besides making the executive what it ought
to be, the arm of the legislature, instead of a separate and coördinate
power. Upon this point the minds of nearly all the members were so far
under the sway of an incorrect theory that such an idea occurred to none
of them. It was decided that the chief magistrate ought to be
reëligible, and therefore should not be elected by Congress.
[Sidenote: Suggestion of an electoral college.]
An immediate choice by the people, however, did not meet with general
favour. To obviate the difficulty, Ellsworth and King suggested the
device of an electoral college, in which the electors should be chosen
by the state legislatures, and should hold a meeting at the federal city
for the sole purpose of deciding upon a chief magistrate. It was then
objected that it would be difficult to find competent men who would be
willing to undertake a long journey simply for such a purpose. The
objection was felt to be a very grave one, and so the convention
returned to the plan of an election by Congress, and again confronted
the difficulty of the chief magistrate's intriguing to secure his
reëlection. Wilson thought to do away with this difficulty by
introducing the element of blind chance, as in some of the states of
ancient Greece, and choosing the executive by a board of electors taken
from Congress by lot; but the suggestion found little support. Dickinson
thought it would be well if the people of each state were to choose its
best citizen,--in modern parlance, its "favourite son;" then out of
these thirteen names a chief magistrate might be chosen, either by
Congress or by a special board of electors. At length, on the 26th of
July, at the motion of Mason, the convention resolved that there should
be a national executive, to consist of a single person, to be chosen by
the national legislature for the term of seven years, and to be
ineligible for a second term. He was to be styled President of the
United States of America.
This decision remained until the very end of August, when the whole
question was reopened by a motion of Rutledge that the two houses of
Congress, in electing the president, should proceed by "joint ballot."
The object of this motion was to prevent either house from exerting a
negative on the choice of the other. It was carried in spite of the
opposition of some of the smaller states, which might hope to exercise a
greater relative influence upon the choice of presidents, if the Senate
were to vote separately. At this point the fears of Gouverneur Morris,
that an election by Congress would result in boundless intrigue, were
revived; and in a powerful speech he persuaded the convention to return
to the device of the electoral college, which might be made equal in
number and similar in composition to the two houses of Congress sitting
together. It need not be required of the electors, after all, that they
should make a long journey to the seat of the federal government. They
might meet in their respective states, and vote by ballot for two
persons, one of whom must be an inhabitant of a different state. By this
provision it was hoped to diminish the chances for extreme sectional
partiality. A list of these votes might be sent under seal to the
presiding officer of the Senate, to be counted. Should no candidate turn
out to have a majority of the votes, the Senate might choose a president
from the five highest candidates on the list. The candidate having the
next highest number of votes might be declared vice-president, and
preserve the visible continuity of the government in case of the death
of the president during his term of office. By these changes the method
of electing the president, as finally decided upon, was nearly
completed. But Mason, Randolph, Gerry, King, and Wilson were not
satisfied with the provision that the Senate might choose the president
in case of a failure of choice on the part of the electoral college:
they preferred to give this power to the House of Representatives. It
was thought that the Senate would be likely to prove an aristocratic
body, somewhat removed from the people in its sympathies, and there was
a dread of intrusting to it too many important functions. Mason thought
that the sway of an aristocracy would be worse than an absolute
monarchy; and if the Senate might every now and then elect the
president, there would be a risk that the dignity of his office might
degenerate, until he should become a mere creature of the Senate. On the
other hand, the small states, in order to have an equal voice with the
large ones, in such an emergency as the failure of choice by the
electoral college, wished to keep the eventual choice in the hands of
the Senate. Among the delegates from the small states, only Langdon and
Dickinson at first supported the change, and only New Hampshire voted
for it. At length Sherman proposed a compromise, which was carried. It
was agreed that the eventual choice should be given to the House of
Representatives, and not to the Senate, but that in exercising this
function the vote in the House of Representatives should be taken by
states. Thus the humours of the delegates from the small states, and of
those who dreaded the accumulation of powers into the hands of an
oligarchy, were alike gratified. This arrangement was finally adopted by
the votes of ten states against Delaware.
But in spite of all the minute and anxious care that was taken in
guarding this point, the contingency of an election being thus thrown
into the hands of the national legislature was not regarded as likely
often to occur. In point of fact, it has hitherto happened only twice in
the century, in the elections of 1800 and of 1824. It was recognized
that the work would ordinarily be done through the machinery of the
electoral college, and that thus the fear of intrigue between the
president and Congress, as it had originally been felt by the
convention, might be set aside. To make assurance doubly sure, it was
provided that "no person shall be appointed an elector who is a member
of the legislature of the United States, or who holds any office of
profit or trust under the United States." It then appeared that the
arguments which had been alleged against the eligibility of the
president for a second term had lost their force; and he was accordingly
made reëligible, while his term of service was reduced from seven years
to four.
[Sidenote: How to count the votes.]
The scheme had thus arrived substantially at its present shape, except
that the counting of the electoral vote still remained in the hands of
the Senate. On the 6th of September this provision was altered, and it
was decided that "the president of the Senate shall, in the presence of
the Senate and the House of Representatives, open all the certificates,
and the votes shall then be counted." The object of this provision was
to take the office of counting away from the Senate alone, and give it
to Congress as a whole; and while doing so, to guard against the failure
of an election through the disagreement of the two houses. The method of
counting was not prescribed, for it was thought that it might safely be
left to joint rules established by the two houses of Congress
themselves, after analogies supplied by the experience of the several
state legislatures. The case of double returns, sent in by rival
governments in the same state, was not contemplated by the convention;
and thus the door was left open for a danger considerably greater than
many of those over which the delegates were agitated. It may safely be
said, however, that not even the wildest license of interpretation can
find any support for the ridiculous doctrine suggested by some persons
blinded by political passion in 1877, that the business of counting the
votes and deciding upon the validity of returns belongs to the president
of the Senate. No such idea was for a moment entertained by the
convention. Any such idea is completely negatived by their action of the
6th of September. The express purpose of the final arrangement made on
that day was to admit the House of Representatives to active
participation in the office of determining who should have been elected
president. It was expressly declared that this work was too important to
be left to the Senate alone. What, then, would the convention have said
to the preposterous notion that this work might safely be left to the
presiding officer of the Senate? The convention were keenly alive to any
imaginable grant of authority that might enable the Senate to grow into
an oligarchy. What would they have said to the proposal to create a
monocrat _ad hoc_, an official permanently endowed by virtue of his
office with the function of king-maker?
[Sidenote: The convention foresaw imaginary dangers, but not the real
ones.]
In this connection it is worth our while to observe that in no respect
has the actual working of the Constitution departed so far from the
intentions of its framers as in the case of their provisions concerning
the executive. Against a host of possible dangers they guarded most
elaborately, but the dangers and inconveniences against which we have
actually had to contend they did not foresee. It will be observed that
Wilson's proposal for a direct election of the president by the people
found little favour in the convention. The schemes that were seriously
considered oscillated back and forth between an election by the national
legislature and an election by a special college of electors. The
electors might be chosen by a popular vote, or by the state
legislatures, or in any such wise as each state might see fit to
determine for itself. In point of fact, electors were chosen by the
legislature in New Jersey till 1816; in Connecticut till 1820; in New
York, Delaware, and Vermont, and with one exception in Georgia, till
1824; in South Carolina till 1868. Massachusetts adopted various plans,
and did not finally settle down to an election by the people until 1828.
Now there were several reasons why the Federal Convention was afraid to
trust the choice of the president directly to the people. One was that
very old objection, the fear of the machinations of demagogues, since
people were supposed to be so easily fooled. As already observed, the
democratic sentiment in the convention was such as we should now call
weak. Another reason shows vividly how wide the world seemed in those
days of slow coaches and mail-bags carried on horseback. It was feared
that people would not have sufficient data wherewith to judge of the
merits of public men in states remote from their own. The electors, as
eminent men exceptionally well informed, and screened from the sophisms
of demagogues, might hold little conventions and select the best
possible candidates, using in every case their own unfettered judgment.
In this connection the words of Hamilton are worth quoting. In the
sixty-eighth number of the "Federalist" he says: "The mode of
appointment of the chief magistrate of the United States is almost the
only part of the system which has escaped without severe censure, or
which has received the slightest mark of approbation from its opponents.
The most plausible of these who has appeared in print has even deigned
to admit that the election of the president is well guarded.... It was
desirable that the sense of the people should operate in the choice of
the person to whom so important a trust was to be confided.... It was
equally desirable that the immediate election should be made by men
capable of analyzing the qualities adapted to the station, and acting
under circumstances favourable to deliberation and to a judicious
combination of all the reasons and inducements that were proper to
govern their choice. A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to possess
the information and discernment requisite to so complicated an
investigation.... It was also peculiarly desirable to afford as little
opportunity as possible to tumult and disorder. This evil was not least
to be dreaded in the election of a magistrate who was to have so
important an agency in the administration of the government."
[Sidenote: Actual working of the electoral scheme.]
Such was the theory as set forth by a thinker endowed with rare ability
to follow out in imagination the results of any course of political
action. It is needless to say that the actual working of the scheme has
been very different from what was expected. In our very first great
struggle of parties, in 1800, the electors divided upon party lines,
with little heed to the "complicated investigation" for which they were
supposed to be chosen. Quite naturally, for the work of electing a
candidate presupposes a state of mind very different from that of serene
deliberation. In 1800 the electors acted simply as automata recording
the victory of their party, and so it has been ever since. In our own
time presidents and vice-presidents are nominated, not without elaborate
intrigue, by special conventions quite unknown to the Constitution; the
people cast their votes for the two or three pairs of candidates thus
presented, and the electoral college simply registers the results. The
system is thus fully exposed to all the dangers which our forefathers
dreaded from the frequent election of a chief magistrate by the people.
Owing to the great good-sense and good-nature of the American people,
the system does not work so badly as might be expected. It has, indeed,
worked immeasurably better than any one would have ventured to predict.
It is nevertheless open to grave objections. It compels a change of
administration at stated astronomical periods, whether any change of
policy is called for or not; it stirs up the whole country every fourth
year with a furious excitement that is often largely factitious; and
twice within the century, in 1801 and again in 1877, it has brought us
to the verge of the most foolish and hopeless species of civil war, in
view of that thoroughly monarchical kind of accident, a disputed
succession.[8]
[Sidenote: The convention supposed itself to be copying from the British
Constitution.]
The most curious and instructive point concerning the peculiar executive
devised for the United States by the Federal Convention is the fact that
the delegates proceeded upon a thoroughly false theory of what they were
doing. As already observed, in this part of its discussions the
convention had not the clearly outlined chart of local interests to
steer by. It indulged in general speculations and looked about for
precedents; and there was one precedent which American statesmen then
always had before their eyes, whether they were distinctly aware of it
or not. In creating an executive department, the members of the
convention were really trying to copy the only constitution of which
they had any direct experience, and which most of them agreed in
thinking the most efficient working constitution in existence,--as
indeed it was. They were trying to copy the British Constitution,
modifying it to suit their republican ideas: but curiously enough, what
they copied in creating the office of president was not the real English
executive or prime minister, but the fictitious English executive, the
sovereign. And this was associated in their minds with another profound
misconception, which influenced all this part of their work. They
thought that to keep the legislative and executive offices distinct and
separate was the very palladium of liberty; and they all took it for
granted, without a moment's question, that the British Constitution did
this thing. England, they thought, is governed by King, Lords, and
Commons, and the supreme power is nicely divided between the three, so
that neither one can get the whole of it, and that is the safeguard of
English liberty. So they arranged President, Senate, and Representatives
to correspond, and sedulously sought to divide supreme power between the
three, so that they might operate as checks upon each other. If either
one should ever succeed in acquiring the whole sovereignty, then they
thought there would be an end of American liberty.
[Sidenote: Influence of Montesquieu and Blackstone.]
Now in the earlier part of the work of the Federal Convention, in
dealing with the legislative department, the delegates were on firm
ground, because they were dealing with things of which they knew
something by experience; but in all this careful separation of the
executive power from the legislative they went wide of the mark, because
they were following a theory which did not truly describe things as they
really existed. And that was because the English Constitution was, and
still is, covered up with a thick husk of legal fictions which long ago
ceased to have any vitality. Blackstone, the great authority of the
eighteenth century, set forth this theory of the division of power
between King, Lords, and Commons with clearness and force, and nobody
then understood English history minutely or thoroughly enough to see its
fallaciousness. Montesquieu also, the ablest and most elegant political
writer of the age, with whose works most of the statesmen in the Federal
Convention were familiar, gave a similar description of the English
Constitution, and generalized from it as the ideal constitution for a
free people. But Montesquieu and Blackstone, in their treatment of this
point, had their eyes upon the legal fictions, and were blind to the
real machinery which was working under them. They gave elegant
expression to what the late Mr. Bagehot called the "literary theory" of
the English Constitution. But the real thing differed essentially from
the "literary theory" even in their day. In our own time the divergence
has become so conspicuous that it would not now be possible for
well-informed writers to make the mistake of Montesquieu and Blackstone.
In our time it has come to be perfectly obvious that so far from the
English Constitution separating the executive power from the
legislative, this is precisely what it does not do. In Great Britain the
supreme power is all lodged in a single body, the House of Commons. The
sovereign has come to be purely a legal fiction, and the House of Lords
maintains itself only by submitting to the Commons. The House of Commons
is absolutely supreme, and, as we shall presently see, it really both
appoints and dismisses the executive. The English executive, or chief
magistrate, is ordinarily the first lord of the treasury, and is
commonly styled the prime minister. He is chairman of the most
important committee of the House of Commons, and his cabinet consists of
the chairmen of other committees.
[Sidenote: What our government would be if it were really like that of
Great Britain.]
To make this perfectly clear, let us see what our machinery of
government would be, if it were really like the English. The presence or
absence of the crowned head makes no essential difference; it is only a
kind of ornamental cupola. Suppose for a moment the presidency
abolished, or reduced to the political nullity of the crown in England;
and postpone for a moment the consideration of the Senate. Suppose that
in our House of Representatives the committee of ways and means had two
chairmen,--an upper chairman who looks after all sorts of business, and
a lower chairman who attends especially to the finances. This upper
chairman, we will say, corresponds to the first lord of the treasury,
while the lower one corresponds to the chancellor of the exchequer.
Sometimes, when the upper chairman is a great financier, and capable of
enormous labour, he will fill both places at once, as Mr. Gladstone was
lately first lord of the treasury and chancellor of the exchequer. The
chairmen of the other committees on foreign, military, and naval affairs
will answer to the English secretaries of state for foreign affairs and
for war, the first lord of the admiralty, and so on. This group of
chairmen, headed by the upper chairman of the ways and means, will then
answer to the English cabinet, with its prime minister. To complete the
parallel, let us suppose that, after a new House of Representatives is
elected, it chooses this prime minister, and he appoints the other
chairmen who are to make up his cabinet. Suppose, too, that he initiates
all legislation, and executes all laws, and stays in office three weeks
or thirty years, or as long as he can get a majority of the house to
vote for his measures. If he loses his majority, he can either resign or
dissolve the house, and order a new election, thus appealing directly to
the people. If the new house gives him a majority, he stays in office;
if it shows a majority against him, he steps down into the house, and
becomes, perhaps, the leader of the opposition.
Now if this were the form of our government, it would correspond in all
essential features to that of England. The likeness is liable to be
obscured by the fact that in England it is the queen who is supposed to
appoint the prime minister; but that is simply a part of the antiquated
"literary theory" of the English Constitution. In reality the queen only
acts as mistress of the ceremonies. Whatever she may wish, the prime
minister must be the man who can command the best working majority in
the house. This is not only tested by the first vote that is taken, but
it is almost invariably known beforehand so well that if the queen
offers the place to the wrong man he refuses to take it. Should he be so
foolish as to take it, he is sure to be overthrown at the first test
vote, and then the right man comes in. Thus in 1880 the queen's manifest
preference for Lord Granville or Lord Hartington made no sort of
difference. Mr. Gladstone was as much chosen by the House of Commons as
if the members had sat in their seats and balloted for him. If the crown
were to be abolished to-morrow, and the house were henceforth, on the
resignation of a prime minister, to elect a new one to serve as long as
he could command a majority, it would not be doing essentially otherwise
than it does now. The house then dismisses its minister when it rejects
one of his important measures. But while thus appointed and dismissed by
the house, he is in no wise its slave; for by the power of dissolution
he has the right to appeal to the country, and let the general election
decide the issue. The obvious advantages of this system are that it
makes anything like a deadlock between the legislature and the executive
impossible; and it insures a concentration of responsibility. The prime
minister's bills cannot be disregarded, like the president's messages;
and thus, too, the house is kept in hand, and cannot degenerate into a
debating club.[9]
[Sidenote: In the British government, the executive department is not
separated from the legislative.]
A system so delicate and subtle, yet so strong and efficient, as this
could no more have been invented by the wisest of statesmen than a
chemist could make albumen by taking its elements and mixing them
together. In its practical working it is a much simpler system than
ours, and still its principal features are not such as would be likely
to occur to men who had not had some actual experience of them. It is
the peculiar outgrowth of English history. As we can now see, its chief
characteristic is its not separating the executive power from the
legislative. As a member of Parliament, the prime minister introduces
the legislation which he is himself expected to carry into effect. Nor
does the English system even keep the judiciary entirely separate, for
the lord chancellor not only presides over the House of Lords, but sits
in the cabinet as the prime minister's legal adviser. It is somewhat as
if the chief justice of the United States were _ex officio_ president of
the Senate and attorney-general; though here the resemblance is somewhat
superficial. Our Senate, although it does not represent landed
aristocracy or the church, but the federal character of our government,
has still a superficial resemblance to the House of Lords. It passes on
all bills that come up from the lower house, and can originate bills on
most matters, but not for raising revenue. Its function as a high court
of impeachment, with the chief justice for its presiding officer, was
directly copied from the House of Lords. But here the resemblance ends.
The House of Lords has no such veto upon the House of Commons as our
Senate has upon the House of Representatives. Between our upper and
lower houses a serious deadlock is possible; but the House of Lords can
only reject a bill until it sees that the House of Commons is determined
to have it carried. It can only enter a protest. If it is obstinate and
tries to do more, the House of Commons, through its prime minister, can
create enough new peers to change the vote,--a power so formidable in
its effects upon the social position of the peerage that it does not
need to be used. The knowledge that it exists is enough to bring the
House of Lords to terms.
[Sidenote: Circumstances which obscured the true aspect of the case a
century ago.]
These features of the English Constitution are so prominent since the
reform of Parliament in 1832 as to be generally recognized. They have
been gradually becoming its essential features ever since the Revolution
of 1688. Before that time the crown had really been the executive, and
there had really been a separation between the executive and legislative
branches of the government, which on several occasions, and notably in
the middle of the seventeenth century, had led to armed strife. What the
Revolution of 1688 really decided was that henceforth in England the
executive was to be the mighty arm of the legislature, and not a
separate and rival power. It ended whatever of reality there was in the
old system of King, Lords, and Commons, and by the time of Sir Robert
Walpole the system of cabinet government had become fairly established;
but men still continued to use the phrases and formulas bequeathed from
former ages, so that the meaning of the changes going on under their
very eyes was obscured. There was also a great historical incident,
after Walpole's time, which served further to obscure the meaning of
these changes, especially to Americans. From 1760 to 1784, by means of
the rotten borough system of elections and the peculiar attitude of
political parties, the king contrived to make his will felt in the
House of Commons to such an extent that it became possible to speak of
the personal government of George III. The work of the Revolution of
1688 was not really completed till the election of 1784 which made Pitt
the ruler of England, and its fruits cannot be said to have been fully
secured till 1832. Now as our Revolutionary War was brought on by the
attempts of George III. to establish his personal government, and as it
was actually he rather than Lord North who ruled England during that
war, it was not strange that Americans, even of the highest education,
should have failed to discover the transformation which the past century
had wrought in the framework of the English government. Nay, more,
during this century the king had seemed even more of a real institution
to the Americans than to the British. He had seemed to them the only
link which bound the different parts of the empire together. Throughout
the struggles which culminated in the War of Independence, it had been
the favourite American theory that while the colonial assemblies and the
British Parliament were sovereign each in its own sphere, all alike owed
allegiance to the king as visible head of the empire. To people who had
been in the habit of setting forth and defending such a theory, it was
impossible that the crown should seem so much a legal fiction as it had
really come to be in England. It is very instructive to note that while
the members of the Federal Convention thoroughly understood the
antiquated theory of the English Constitution as set forth by
Blackstone, they drew very few illustrations from the modern working of
Parliament, with which they had not had sufficient opportunities of
becoming familiar. In particular they seemed quite unconscious of the
vast significance of a dissolution of Parliament, although a dissolution
had occurred only three years before under such circumstances as to work
a revolution in British politics without a breath of disturbance. The
only sort of dissolution with which they were familiar was that in which
Dunmore or Bernard used to send the colonial assemblies home about their
business whenever they grew too refractory. Had the significance of a
dissolution, in the British sense, been understood by the convention,
the pregnant suggestion of Roger Sherman, above mentioned, could not
have failed to give a different turn to the whole series of debates on
the executive branch of the government. Had our Constitution been framed
a few years later, this point would have had a better chance of being
understood. As it was, in trying to modify the English system so as to
adapt it to our own uses, it was the archaic monarchical feature, and
not the modern ministerial feature, upon which we seized. The president,
in our system, irremovable by the national legislature, does not answer
to the modern prime minister, but to the old-fashioned king, with powers
for mischief curtailed by election for short terms.
[Sidenote: The American cabinet is analogous not to the British cabinet,
but to the privy council.]
The close parallelism between the office of president and that of king
in the minds of the framers of the Constitution was instructively shown
in the debates on the advisableness of restraining the president's
action by a privy council. Gerry and Sherman urged that there was need
of such a council, in order to keep watch over the president. It was
suggested that the privy council should consist of "the president of the
Senate, the speaker of the House of Representatives, the chief justice
of the supreme court, and the principal officer in each of five
departments as they shall from time to time be established; their duty
shall be to advise him in matters which he shall lay before them, but
their advice shall not conclude him, or affect his responsibility." The
plan for such a council found favour with Franklin, Madison, Wilson,
Dickinson, and Mason, but did not satisfy the convention. When it was
voted down Mason used strong language. "In rejecting a council to the
president," said he, "we are about to try an experiment on which the
most despotic government has never ventured; the Grand Seignior himself
has his Divan." It was this failure to provide a council which led the
convention to give to the Senate a share in some of the executive
functions of the president, such as the making of treaties, the
appointment of ambassadors, consuls, judges of the supreme court, and
other officers of the United States whose appointment was not otherwise
provided for. As it was objected to the office of vice-president that he
seemed to have nothing provided for him to do, he was disposed of by
making him president of the Senate. No cabinet was created by the
Constitution, but since then the heads of various executive departments,
appointed by the president, have come to constitute what is called his
cabinet. Since, however, the members of it do not belong to Congress,
and can neither initiate nor guide legislation, they really constitute a
privy council rather than a cabinet in the modern sense, thus furnishing
another illustration of the analogy between the president and the
archaic sovereign.
[Sidenote: The federal judiciary.]
Concerning the structure of the federal judiciary little need be said
here. It was framed with very little disagreement among the delegates.
The work was chiefly done in committee by Ellsworth, Wilson, Randolph,
and Rutledge, and the result did not differ essentially from the scheme
laid down in the Virginia plan. It was indeed the indispensable
completion of the work which was begun by the creation of a national
House of Representatives. To make a federal government immediately
operative upon individual citizens, it must of course be armed with
federal courts to try and federal officers to execute judgment in all
cases in which individual citizens were amenable to the national law.
But for this system of United States courts extended throughout the
states and supreme within its own sphere, the federal constitution could
never have been put into practical working order. In another respect the
federal judiciary was the most remarkable and original of all the
creations of that wonderful convention. It was charged with the duty of
interpreting, in accordance with the general principles of common law,
the Federal Constitution itself. This is the most noble as it is the
most distinctive feature in the government of the United States. It
constitutes a difference between the American and British systems more
fundamental than the separation of the executive from the legislative
department. In Great Britain the unwritten constitution is administered
by the omnipotent House of Commons; whatever statute is enacted by
Parliament must stand until some future Parliament may see fit to repeal
it. But an act passed by both houses of Congress, and signed by the
president, may still be set aside as unconstitutional by the supreme
court of the United States in its judgments upon individual cases
brought before it. It was thus that the practical working of our Federal
Constitution during the first thirty years of the nineteenth century was
swayed to so great an extent by the profound and luminous decisions of
Chief Justice Marshall, that he must be assigned a foremost place among
the founders of our Federal Union. This intrusting to the judiciary the
whole interpretation of the fundamental instrument of government is the
most peculiarly American feature of the work done by the convention, and
to the stability of such a federation as ours, covering as it does the
greater part of a huge continent, it was absolutely indispensable.
Thus, at length, was realized the sublime conception of a nation in
which every citizen lives under two complete and well-rounded systems of
laws,--the state law and the federal law,--each with its legislature,
its executive, and its judiciary moving one within the other,
noiselessly and without friction. It was one of the longest reaches of
constructive statesmanship ever known in the world. There never was
anything quite like it before, and in Europe it needs much explanation
to-day even for educated statesmen who have never seen its workings. Yet
to Americans it has become so much a matter of course that they, too,
sometimes need to be told how much it signifies. In 1787 it was the
substitution of law for violence between states that were partly
sovereign. In some future still grander convention we trust the same
thing will be done between states that have been wholly sovereign,
whereby peace may gain and violence be diminished over other lands than
this which has set the example.
Great as was the work which the Federal Convention had now accomplished,
none of the members supposed it to be complete. After some discussion,
it was decided that Congress might at any time, by a two thirds vote in
both houses, propose amendments to the constitution, or on the
application of the legislatures of two thirds of the states might call a
convention for proposing amendments; and such amendments should become
part of the constitution as soon as ratified by three fourths of the
states, either through their legislatures or through special conventions
summoned for the purpose. The design of this elaborate arrangement was
to guard against hasty or ill-considered changes in the fundamental
instrument of government; and its effectiveness has been such that an
amendment has come to be impossible save as the result of intense
conviction on the part of a vast majority of the whole American people.
Finally it was decided that the Federal Constitution, as now completed,
should be presented to the Continental Congress, and then referred to
special conventions in all the states for ratification; and that when
nine states, or two thirds of the whole number, should have ratified, it
should at once go into operation as between such ratifying states.
[Sidenote: Signing the Constitution.]
When the great document was at last drafted by Gouverneur Morris, and
was all ready for the signatures, the aged Franklin produced a paper,
which was read for him, as his voice was weak. Some parts of this
Constitution, he said, he did not approve, but he was astonished to find
it so nearly perfect. Whatever opinion he had of its errors he would
sacrifice to the public good, and he hoped that every member of the
convention who still had objections would on this occasion doubt a
little of his own infallibility, and for the sake of unanimity put his
name to this instrument. Hamilton added his plea. A few members, he
said, by refusing to sign, might do infinite mischief. No man's ideas
could be more remote from the plan than his were known to be; but was it
possible for a true patriot to deliberate between anarchy and
convulsion, on the one side, and the chance of good to be expected from
this plan, on the other? From these appeals, as well as from
Washington's solemn warning at the outset, we see how distinctly it was
realized that the country was on the verge of civil war. Most of the
members felt so, but to some the new government seemed far too strong,
and there were three who dreaded despotism even more than anarchy.
Mason, Randolph, and Gerry refused to sign, though Randolph sought to
qualify his refusal by explaining that he could not yet make up his
mind whether to oppose or defend the Constitution, when it should be
laid before the people of Virginia. He wished to reserve to himself full
liberty of action in the matter. That Mason and Gerry, valuable as their
services had been in the making of the Constitution, would now go home
and vigorously oppose it, there was no doubt. Of the delegates who were
present on the last day of the convention, all but these three signed
the Constitution. In the signatures the twelve states which had taken
part in the work were all represented, Hamilton signing alone for New
York.
Thus after four months of anxious toil, through the whole of a scorching
Philadelphia summer, after earnest but sometimes bitter discussion, in
which more than once the meeting had seemed on the point of breaking up,
a colossal work had at last been accomplished, the results of which were
most powerfully to affect the whole future career of the human race so
long as it shall dwell upon the earth. In spite of the high-wrought
intensity of feeling which had been now and then displayed, grave
decorum had ruled the proceedings; and now, though few were really
satisfied, the approach to unanimity was remarkable. When all was over,
it is said that many of the members seemed awe-struck. Washington sat
with head bowed in solemn meditation. The scene was ended by a
characteristic bit of homely pleasantry from Franklin. Thirty-three
years ago, in the days of George II., before the first mutterings of the
Revolution had been heard, and when the French dominion in America was
still untouched, before the banishment of the Acadians or the rout of
Braddock, while Washington was still surveying lands in the wilderness,
while Madison was playing in the nursery and Hamilton was not yet born,
Franklin had endeavoured to bring together the thirteen colonies in a
federal union. Of the famous Albany plan of 1754, the first complete
outline of a federal constitution for America that ever was made, he was
the principal if not the sole author. When he signed his name to the
Declaration of Independence in this very room, his years had rounded the
full period of threescore and ten. Eleven years more had passed, and he
had been spared to see the noble aim of his life accomplished. There was
still, no doubt, a chance of failure, but hope now reigned in the old
man's breast. On the back of the president's quaint black armchair there
was emblazoned a half-sun, brilliant with its gilded rays. As the
meeting was breaking up and Washington arose, Franklin pointed to the
chair, and made it the text for prophecy. "As I have been sitting here
all these weeks," said he, "I have often wondered whether yonder sun is
rising or setting. But now I know that it is a rising sun!"