THE FEDERAL CONSTITUTION (1787-1789).
59. REFERENCES.
BIBLIOGRAPHIES.--P. L. Ford, _Bibliography and Reference List of the
Constitution_; Justin Winsor, _Narrative and Critical History_, VII.
256-266; W. E. Foster, _References to the Constitution_, 15, 21; Channing
and Hart, _Guide_, §§ 154-156; A. B. Hart, _Federal Government_, §§ 38,
469.
HISTORICAL MAPS.--As in § 48 above, § 69 below.
GENERAL ACCOUNTS.--J. B. McMaster, _People of the United States_, I.
416-524; R. Hildreth, _United States_, III. 482-546; T. Pitkin, _United
States_, II. 218-316; H. C. Lodge, _Washington_, II. ch. I.; J. Story,
_Commentaries_, §§ 272-372; J. Schouler, _United States_, I. 31-70; Geo.
Tucker, _United States_, I. 347-383; Justin Winsor, _Narrative and
Critical History_, VII. ch. iv.; H. Von Hoist, _Constitutional History_,
I. 47-63; J. S. Landon, _Constitutional History_, 59-96; F. A. Walker,
_Making of the Nation_, chs. ii., iii.
SPECIAL HISTORIES.--G. T. Curtis, _Constitutional History, I. chs. xv.-
xxxvi. (_History of the Constitution_, III. 232-604); Geo. Bancroft,
_United States_, last revision, VI. 195-462 (_History of the
Constitution_, I. 267-278, II. 1-47, 144, 350); William C. Rives,
_James Madison_, II. 313-633; H. L. Carson, _One Hundredth Anniversary of
the Constitution_; J. B. McMaster, _Pennsylvania and the Federal
Constitution_; John Fiske, _Critical Period_, 183-350; S. H. Gay,
_Madison_, 88-127; J. C. Hamilton, _Republic_, III. 236-569; J. H.
Robinson, _Sources of the Constitution_; S. B. Harding, _Federal
Constitution in Massachusetts_; C. E. Stevens, _Sources of the
Constitution_; C. Borgeaud, _Adoption and Amendment of Constitutions_;
the various State histories.
CONTEMPORARY ACCOUNTS.--Journal of the Convention, Madison's notes,
Yates's notes, Luther Martin's letter, proceedings of State conventions,--
all in _Elliot's Debates_ (5 vols.); H. D. Gilpin, _Papers of James
Madison_, vols. II., III.; brief references in the works of Washington,
Madison, Hamilton, and Jefferson; letters in the biographies of Madison,
Hamilton, Rufus King, Gerry; _The Federalist_.--Reprints in P. L. Ford,
_Pamphlets on the Constitution of the United States_, and _Essays on the
Constitution; American History told by Contemporaries_, III.; _Library of
American Literature_, VI.
60. THE FEDERAL CONVENTION ASSEMBLED (1787).
[Sidenote: A convention suggested.]
[Sidenote: Annapolis Convention.]
[Sidenote: Action of Congress.]
That Congress did not possess the confidence of the country was evident
from the failure of all its amendments. It had, therefore, been suggested
first by Hamilton in 1780, later by Tom Paine in his widespread pamphlet
"Public Good," that a convention be specially summoned to revise the
Articles of Confederation. The initiative in the movement was finally
taken by the States. In 1786 the intolerable condition of internal
commerce caused Virginia to suggest to the sister States that a conference
be held at Annapolis. The few delegates who appeared separated, after
recommending that there be held "a convention of delegates from the
different States ... to devise such further provisions as shall appear to
them necessary to render the constitution of the federal government
adequate." Congress was no longer able to resist the movement: on Feb. 1,
1787, it resolved that a convention be held "for the sole and express
purpose of revising the Articles of Confederation, and reporting to
Congress and the several legislatures such alterations and provisions
therein as shall, when agreed to by Congress and confirmed by the States,
render the federal government adequate to the exigencies of government and
the preservation of the union."
[Sidenote: Convention assembled.]
By May, 1787, delegates to the proposed convention had been chosen in all
the States except New Hampshire and Rhode Island. Many of the ablest and
most experienced public men were included. Among them were Francis Dana
and Elbridge Gerry of Massachusetts, Alexander Hamilton of New York,
Benjamin Franklin of Pennsylvania, and James Madison and George Washington
of Virginia. The convention was the most distinguished body which had ever
assembled in America; if its work could not command public confidence,
there was no hope for the Union.
61. DIFFICULTIES OF THE CONVENTION (1787).
[Sidenote: Task of the convention.]
When on May 25, 1787, the convention assembled at Philadelphia, its task,
under the call of Congress, was limited to the preparation of amendments
to the old Confederation. The first formal resolution to which it came
after organization reads as follows: "That a national government ought to
be established, consisting of a supreme legislature, executive, and
judiciary." The convention from the beginning was evidently resolved to
recommend a new, elaborate, and powerful form of government. The key to
this action is found in the history of the twelve years from 1775 to 1787.
The country had tried a revolutionary, irresponsible, form of government,
and it had not worked well. It had tried a union of sovereign States;
neither the Union nor the States had prospered. The time had come to
change the government in form, in powers, and in the means of carrying out
its powers. The States must be held to their duties; Congress must be
restrained; local quarrels must cease; revenue must be secured, commerce
protected, and treaties guaranteed; the West must be saved, and
insurrections put down. The first duty of the convention was to repair the
errors of the Confederation.
[Sidenote: Want of authority.]
Americans have become accustomed to look upon the Constitution as a kind
of political revelation; the members of the convention themselves felt no
sense of strength or inspiration. They had no authority of their own.
Their work must be submitted for the ratification of States which had been
unable to agree upon a single modification of the articles. They must
encounter the jealousy of Congress and the prejudices of the people. While
the convention sat, a rumor went abroad that they would report in favor of
a monarchy.
In order to bring the discussion to a focus, the Virginia delegates had
agreed upon a plan drawn by Madison, who had been in communication with
Washington; it was presented by Edmund Randolph. This plan in the end
formed the basis of the constitution as adopted.
[Sidenote: Divisions.]
No sooner had debate actually begun than the convention proved to be
divided into many factions. Some members, like Patterson, were on
principle opposed to a strong government; others, like Hamilton, desired
to break down the State boundaries, and to create a centralized republic.
Still more distinct was the opposition between the large States and the
small: the former inclined to a representation based on population; the
latter insisted that the States should be equal units. Again, the trading
States--New England, New York, and Maryland--were inclined to grant large
powers over commerce; the agricultural States, particularly Virginia,
wished to see commerce regulated still by the States in part. Another line
of division was between the slaveholding and the non-slaveholding States;
here the champions were Massachusetts on one side, and South Carolina on
the other. Throughout the convention these various elements combined and
recombined as their interests seemed affected. Although there were no
permanent parties, the members of which regularly voted together, there
was disagreement and disappointment from the beginning to the end.
62. SOURCES OF THE CONSTITUTION.
[Sidenote: American experience.]
Another popular delusion with regard to the Constitution is that it was
created out of nothing; or, as Mr. Gladstone puts it, that "It is the
greatest work ever struck off at any one time by the mind and purpose of
man." The radical view on the other side is expressed by Sir Henry Maine,
who informs us that the "Constitution of the United States is a modified
version of the British Constitution ... which was in existence between
1760 and 1787." The real source of the Constitution is the experience of
Americans. They had established and developed admirable little
commonwealths in the colonies; since the beginning of the Revolution they
had had experience of State governments organized on a different basis
from the colonial; and, finally, they had carried on two successive
national governments, with which they had been profoundly discontented.
The general outline of the new Constitution seems to be English; it was
really colonial. The President's powers of military command, of
appointment, and of veto were similar to those of the colonial governor.
National courts were created on the model of colonial courts. A
legislature of two houses was accepted because such legislatures had been
common in colonial times. In the English Parliamentary system as it
existed before 1760 the Americans had had no share; the later English
system of Parliamentary responsibility was not yet developed, and had
never been established in colonial governments; and they expressly
excluded it from their new Constitution.
[Sidenote: State experience.]
They were little more affected by the experience of other European
nations. Just before they assembled, Madison drew up an elaborate abstract
of ancient, mediæval, and existing federal governments, of which he sent a
copy to Washington. It is impossible to trace a single clause of the
Constitution to any suggestion in this paper. The chief source of the
details of the Constitution was the State constitutions and laws then in
force. Thus the clause conferring a suspensive veto on the President is an
almost literal transcript from the Massachusetts constitution. In fact,
the principal experiment in the Constitution was the establishment of an
electoral college; and of all parts of the system this has worked least as
the framers expected. The Constitution represents, therefore, the
accumulated experience of the time; its success is due to the wisdom of
the members in selecting out of the mass of colonial and State
institutions those which were enduring,
[Sidenote: Novelties.]
The real boldness of the Constitution is the novelty of the federal system
which it set up. For the first time in history an elaborate written
constitution was applied to a federation; and the details were so
skilfully arranged that the instrument framed for thirteen little
agricultural communities works well for forty-four large and populous
States. A second novelty was a system of federal courts skilfully brought
into harmony with the State judiciary. Even here we see an effect of the
twelve years experience of imperfect federation. The convention knew how
to select institutions that would stand together; it also knew how to
reject what would have weakened the structure.
63. THE GREAT COMPROMISES (1787).
[Sidenote: State sovereignty.]
It was a long time before a compromise between the discordant elements
could be reached. To declare the country a centralized nation was to
destroy the traditions of a century and a half: to leave it an assemblage
of States, each claiming independence and sovereignty, was to throw away
the results of the Revolution. The convention finally agreed that while
the Union should be endowed with adequate powers, the States should retain
all powers not specifically granted, and particularly the right to
regulate their own internal affairs.
[Sidenote: Representation of States.]
The next great question all but led to the breaking up of the convention.
The New Hampshire delegate had not yet appeared, and Rhode Island was
never represented in the convention; the large states had therefore a
majority of one. On June 13 it was voted that the ratio of representation
in both branches of the legislature should be in proportion to the
population. Two days later, Patterson of New Jersey brought forward a plan
satisfactory to the small States, by which the old plan of vote by States
was to be retained, and the Confederation practically continued. For many
days the two parties were unable to agree; the crisis was so serious that
on June 28 Franklin, who was not renowned for piety, moved that
thenceforward the sessions be opened with prayer. The deadlock was finally
broken by the so-called Connecticut Compromise, adopted July 7: equal
representation was to be preserved in the upper house, and proportional
representation was to be granted in the lower.
[Sidenote: Representation of slaves.]
When it was proposed to levy taxes on the same basis, the Southern members
objected that their negroes were not equal to freemen as producers of
wealth. On July 12, the matter was adjusted by a compromise: the
Southerners agreed to count slaves only at three fifths of their number,
in apportioning both representatives and direct taxes. Since direct taxes
have been but three times assessed in the history of the United States,
the practical advantage was on the side of the North.
[Sidenote: Slave trade.]
It was otherwise in the third difficult question. Near the end of the
convention the commercial and the agricultural States came into a
disagreement. New England was anxious that Congress should have power to
pass Acts protecting American shipping; on the other hand, the South
desired to continue the slave-trade. Pinckney declared that "South
Carolina can never receive the plan if it prohibits the slave-trade;" and
Sherman of Connecticut cynically remarked, "The slave-trade is iniquitous;
but inasmuch as the point of representation was settled, he should not
object." On August 24 a third compromise left to Congress the power of
passing Navigation Acts, but forbade it to prohibit the slave-trade during
twenty years.
64. DETAILS OF THE CONSTITUTION (1787).
[Sidenote: Difficult questions.]
These difficult points out of the way, the convention arranged the details
of the new government. One of the principal minor questions was the method
of presidential election. Many members inclined towards an executive
council; instead, it was agreed that there should be a President elected
by Congress; but almost at the last moment, on September 7, the better
plan of indirect election by the people was adopted. At one time the
convention had agreed that Congress should have the right of veto upon
State laws; it was abandoned, and instead was introduced a clause that the
Constitution should be the supreme law of the land, and powerful courts
were created to construe the law.
[Sidenote: Simplicity of the Constitution.]
In making up the list of the powers of Congress, the convention used brief
but comprehensive terms. Thus all the difficulties arising out of the
unfriendly commercial legislation of States, and their institution, with
foreign treaties, were removed by the simple clause: "The Congress shall
have Power ... to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes." The great question of
taxation was settled by fourteen words: "The Congress shall have Power ...
To lay and collect Taxes, Duties, Imposts, and Excises."
[Sidenote: Omissions.]
In a few respects the Constitution was deficient. It did not profess to be
all-comprehensive, for the details of the government were to be worked out
in later statutes. There was, however, no provision for future annexations
of territory. No safeguards were provided for the proper appointment and
removal of public officers. The growth of corporations was not foreseen,
and no distinct power was conferred upon Congress either to create or to
regulate them. Above all, the convention was obliged to leave untouched
the questions connected with slavery which later disrupted the Union.
[Sidenote: The work finished.]
On Sept. 17, 1787, the convention finished its work. To the eloquent and
terse phraseology of Gouverneur Morris we owe the nervous English of the
great instrument. As the members were affixing their signatures, Franklin
remarked, pointing to the picture of a sun painted behind the President's
chair: "I have often and often,... in the vicissitudes of my hopes and
fears, looked ... without being able to tell whether it was rising or
setting; but now, at length, I have the happiness to know that it is a
rising and not a setting sun."
65. DIFFICULTIES OF RATIFICATION (1787, 1788).
[Sidenote: Action of Congress.]
[Sidenote: Action of legislatures.]
The text of the Constitution was printed and rapidly distributed
throughout the Union. It was still but a lifeless draft, and before it
could become an instrument of government the approving action of Congress,
of the legislatures, and of State conventions was necessary. Congress, on
Sept. 28, 1787, unanimously resolved that the Constitution be transmitted
to State legislatures. The federal convention had determined that the
consideration of its work should not depend, like the Articles of
Confederation, upon the slow and unwilling humor of the legislatures, but
that in each State a convention should be summoned solely to express the
will of the State upon the acceptance of the Constitution. It had further
avoided the rock upon which had been wrecked the amendments proposed by
Congress; when nine State conventions should have ratified the
Constitution, it was to take effect for those nine. On the same day that
Congress in New York was passing its resolution, the Pennsylvania
legislature in Philadelphia was fixing the day for the election of
delegates; all the State legislatures followed, except in Rhode Island.
[Sidenote: The Constitution attacked.]
The next six months was a period of great anxiety and of national danger.
The Constitution was violently attacked in every part of the Union: the
President, it was urged, would be a despot, the House of Representatives a
corporate tyrant, the Senate an oligarchy. The large States protested that
Delaware and Rhode Island would still neutralize the votes of Virginia and
Massachusetts in the Senate. The federal courts were said to be an
innovation. It was known that there had been great divisions in the
convention, and that several influential members had left, or at the last
moment had refused to sign. "The people of this commonwealth," said
Patrick Henry, "are exceedingly uneasy in being brought from that state of
full security which they enjoyed, to the present delusive appearance of
things." A special objection was made to the lack of a bill of rights,
such as existed in State constitutions. The reply was that the framers of
the Constitution had deliberately omitted it because Congress was in no
case to have powers not conferred upon it by the Constitution. The
argument was not conclusive: Rev. Mr. Caldwell, in the North Carolina
convention, declared that "unalienable rights ought not to be given up if
not necessary;" and another member of the same convention objected that
"if there be no religious test required, Pagans, Deists, and Mahometans
might obtain offices, And ... the senators and representatives might all
be pagans." It was even suggested as a serious danger that the Pope of
Rome might eventually be elected president.
[Sidenote: Federalists and Antifederalists.]
The friends of the measure, in order to deprecate the charge that they
aimed at centralization, took upon themselves the name of Federalists.
Their opponents called themselves antifederalists, corresponded with each
other, and formed a short-lived national party. A shower of pamphlets on
both sides fell upon the country. Of these the most famous and most
efficacious was the "Federalist," successive numbers of which were
contributed by Hamilton, Madison, and John Jay. With a calmness of spirit,
a lucidity of style, and a power of logic which make it to this day one of
the most important commentaries on the Constitution, the "Federalist"
strove to show that the Constitution was safe for the people and
advantageous for the States.
66. STATE CONVENTIONS (1787, 1788).
[Sidenote: First nine states.]
As the State conventions assembled, the excitement grew more intense. Four
States alone contained within a few thousands of half the population of
the Union: they were Massachusetts, Virginia, New York, and North
Carolina. In the convention of each of these States there was opposition
strong and stubborn; one of them--North Carolina--adjourned without
action; in the other three, ratification was obtained with extreme
difficulty and by narrow majorities.
The first State to come under the "New Roof," as the Constitution was
popularly called, was Delaware. In rapid succession followed Pennsylvania,
New Jersey, Georgia, and Connecticut. In Massachusetts, the sixth State,
there was a hard fight; the spirit of the Shays Rebellion was still alive;
the opposition of Samuel Adams was only overcome by showing him that he
was in the minority; John Hancock was put out of the power to interfere by
making him the silent president of the convention. It was suggested that
Massachusetts ratify on condition that a long list of amendments be
adopted by the new government: the friends of the Constitution pointed out
that the plan was simply to ratify a part of the Constitution and to
reject the rest; each succeeding State would insist on a list of
amendments, and the whole work must be done over. Feb. 6, 1788, the
enthusiastic people of Boston knew that the convention, by a vote of 187
to 167, had ratified the Constitution; the amendments being added, not as
a condition, but as a suggestion. Maryland, South Carolina, and New
Hampshire brought the number up to nine.
[Sidenote: Virginia and New York.]
Before the ninth ratification was known, the fight had been won also in
Virginia. Among the champions of the Constitution were Madison, Edmund
Randolph, and John Marshall. James Monroe argued against the system of
election which was destined twice to make him President. In spite of the
determined opposition of Patrick Henry, and in spite of a proposition to
ratify with amendments, the convention accepted. New York still held off.
Her acquiescence was geographically necessary; and Alexander Hamilton, by
the power of his eloquence and his reason, changed the vote of a hostile
convention and added the eleventh State.
67. EXPIRATION OF THE CONFEDERATION (1788).
[Sidenote: The old Congress.]
During the session of the convention in Philadelphia Congress had
continued to sit in New York, and the Northwest Ordinance was passed at
this time (§ 52). On Sept. 13, 1788 Congress voted that the Constitution
had been ratified, and that elections should proceed for the officers of
the new government, which was to go into operation the first Wednesday in
March, 1789.
[Sidenote: Seat of government.]
[Sidenote: Congress expires.]
Since Congress and the President must meet somewhere, it became the duty
of the old Congress to fix, at least temporarily, the seat of government,
Trenton, Lancaster, Princeton, and New York were suggested. Baltimore was
voted; then, with its usual inconsistency, two days later Congress voted
for New York. An attempt was made to settle the accounts of Congress; but
all that could be ascertained was that they were in great confusion, and
that vouchers had not yet been turned in for the expenditure of large
sums. On October 23 is the last official record: "Two States attended."
During the next five months the only evidences of national life were the
perfunctory service of a few executive officers, the feeble movements of
the army, now reduced to about six hundred men, and the steady
accumulation of unpaid interest.
[Sidenote: Rhode Island and North Carolina.]
What, meantime, was the situation of the two States, Rhode Island and
North Carolina, which had not ratified the Constitution, and which were,
therefore, not entitled to take part in the elections? They had in 1781
entered into a constitution which was to be amended only by unanimous
consent; their consent was refused; legally they had a right to insist on
the continuance of the old Congress. The new Constitution was, strictly
speaking, unconstitutional; it had been ratified by a process unknown to
law. The situation was felt to be delicate, and the States were for the
time being left to themselves. North Carolina came into the Union by a
ratification of Nov. 21, 1789. It was suggested that the trade of States
which did not recognize Congress should be cut off, and Rhode Island
yielded. May 19, 1790, her ratification completed the Union.
68. WAS THE CONSTITUTION A COMPACT?
[Sidenote: The Constitution irregular.]
The third attempt to form an organic union was now successfully carried
out. The irregular authority of the Continental Congress had been replaced
by the legal but inefficient Confederation; to this was now to succeed an
organized government, complete in all its departments, and well endowed
with powers. How had this Constitution been adopted? What was the
authority which had taken upon itself to diminish the powers of the
States, and to disregard the clauses which required unanimous consent to
amendments? Was the new Constitution an agreement between eleven States,
or was it an instrument of government for the whole people? Upon this
question depends the whole discussion about the nature of the Union and
the right of secession.
[Sidenote: Compact theory.]
The first theory is that the Constitution was a compact made between
sovereign States. Thus Hayne in 1830 declared that "Before the
Constitution each state was an independent sovereignty, possessing all the
rights and powers appertaining to independent nations.... After the
Constitution was formed, they remained equally sovereign and independent
as to all powers not expressly delegated to the federal government.... The
true nature of the Federal Constitution, therefore, is ... a compact to
which the States are parties." The importance of the word "compact" is
that it means an agreement which loses its force when any one of the
parties ceases to observe it; a compact is little more than a treaty.
Those who framed the Constitution appeared to consider it no compact; for
on May 30, 1787, Mr. Randolph moved that "-no treaty or treaties among the
whole or part of the States, as individual sovereignties, would be
sufficient." In fact, the reason for the violent opposition to the
ratification of the Constitution was that when once ratified, the States
could not withdraw from it.
[Sidenote: Constitution theory.]
Another view is presented by Webster in his reply to Hayne: "It is, sir,
the people's Constitution, the people's government, made for the people,
made by the people, and answerable to the people. The people of the United
States have declared that this Constitution shall be the supreme law." It
is plain that the Constitution does not rest simply upon the consent of
the majority of the nation. No popular vote was taken or thought of; each
act of ratification set forth that it proceeded from a convention of the
people of a State.
[Sidenote: Basis of the Constitution.]
The real nature of the new Constitution appears in the light of the
previous history of the country. The Articles of Confederation had been a
compact. One of the principal reasons why the Confederation was weak was
that there was no way of compelling the States to perform their duties.
The new Constitution was meant to be stronger and more permanent. The
Constitution was, then, not a compact, but an instrument of government
similar in its origin to the constitutions of the States. The difference
was that, by general agreement, it was not to take effect until it was
shown that in at least nine States the people were willing to live under
it. Whatever the defects of the Confederation, however humiliating its
weakness to our national pride, it had performed an indispensable service;
it had educated the American people to the point where they were willing
to accept a permanent federal union. As the "Federalist" put it, "A nation
without a national government is an awful spectacle."