of the most remarkable conventions in the annals of mankind had it not
been that one of the ablest of their number, James Madison, regularly
attended the sessions and kept notes from day to day of the debates.
While he was not a stenographer, he had a gift for condensing a speech
and fairly representing its substance. He jealously guarded his Journal
of the Convention until his death. Its very existence was known to few.
He died in 1836, and four years later the government purchased the
manuscript from his widow. Then, for the first time, the curtain was
measurably raised upon the proceedings of a convention which had
created, as we now know, one of the greatest nations in history.
Fifty-three years after the close of the convention, and when nearly
every one of its participants were dead, Madison's Journal was first
published.
When was a great secret better kept? Grateful as posterity must be for
this inestimable gift of great human enterprise, yet even Madison's
careful journal fills one with the deepest regret that this wonderful
debate, which lasted for nearly four months between men of no ordinary
ability, could not have been preserved to the world.
Two or three of the speeches which Madison gives in his Journal are
complete, for when Doctor Franklin spoke he reduced his remarks to
writing and gave a copy to Madison, but of the other speeches only a
fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
addressed the convention in a speech that lasted five hours, in which he
stated his philosophy of government, but of that only a short
condensation, and possibly not even an accurate fragment, remains.
Without this extraordinary provision for secrecy, which is so opposed to
modern democratic conventions, and which so little resembles the famous
point as to "open covenants openly arrived at," the convention could not
have accomplished its great work, for these wise men realized that a
statesman cannot act wisely under the observation of a gallery, and
especially when the gallery compels him by the pressure of public
opinion to work as it directs. I recognize that public opinion--often
temporarily uninformed but in the end generally right--does often save
the democracies of the world from the selfish ends of self-seeking and
misguided leadership; but, given noble and wise representatives, they
work best when least influenced by the fleeting passions of the day.
It is evident that if the framers of the Constitution had met, as
similar conventions have within recent years met at Versailles and
Genoa, with the world as their gallery and with the representatives of
the Press as an integral part of the conference, they would have
accomplished nothing. The probability is that the convention would not
have lasted a month if their immediate purpose had been to placate
current opinion. It may be doubted whether such a convention, if called
to-day, either in your country or mine, could achieve like results, for
in this day of unlimited publicity, when men divide not as individuals
but in powerful and organized groups, a constitutional convention would,
I fear, prove a witches' cauldron of class legislation and demagoguery.
Is it not possible that modern democracy is in danger of strangulation
by its present-day methods and ideals? Again the words of Washington
suggest themselves: "If, to please the people, we offer what we
ourselves disapprove, how can we afterwards defend our work? Let us
raise a standard to which the wise and just can repair."
Working with a sad sincerity and with despair in their hearts, this
little band of men wrought a work of surpassing importance, and if they
did not receive the immediate plaudits of the living generation, their
shades can at least solace themselves with the reflection that posterity
has acclaimed their work as one of the greatest political achievements
of man.
The rules of order and the nature of the proceedings thus determined,
the convention opened by an address by Mr. Randolph of Virginia, in
which he submitted, in the form of fifteen points--nearly the number of
the fatal fourteen--the outlines for a new government. He himself in his
opening speech summarized the propositions by candidly confessing "that
they were not intended for a federal government" (thereby meaning a mere
league of States) but "a strong consolidated union." Upon this radical
change the convention was to argue earnestly and at times bitterly for
many a weary day. The plan provided for a national legislature of which
the lower branch should be elected by the people and the upper branch by
the lower branch upon the nomination of the legislatures of the States.
This legislature should enjoy all the legislative rights given to the
federation, and there followed the sweeping grant that it "could
legislate in all cases to which the separate States are incompetent or
in which the harmony of the United States may be interrupted by the
exercise of individual legislation," with power "to negative all laws
passed by the several States contravening in the opinion of the national
legislature the Articles of the Union."
A national executive was proposed, together with a national judiciary,
and these two bodies were given authority "to examine every act of the
national legislature before it shall operate and every act of a
particular legislature before a negative thereon shall be final." This
marked an immense advance over the Articles of Confederation, under
which there was no national executive or judiciary, and under which the
legislature had no direct power over the citizens of the States, and
could only impose duties upon the States themselves by the concurrence
of nine of the thirteen.
Hardly had Mr. Randolph submitted the so-called Virginia plan when
Charles Pinckney, of South Carolina, a young man of twenty-nine years
of age, with the courage of youth submitted to the House a draft of the
future federal government. Curiously enough, it did not differ in
principle from the Virginia plan, but was more specific and concrete in
stating the powers which the federal government should exercise, and
many of its provisions were embodied in the final draft. Indeed,
Pinckney's plan was the future Constitution of the United States in
embryo; and when it is read and contrasted with the document which has
so justly won the acclaim of men throughout the world, it is amazing
that so young a man should have anticipated and reduced to a concrete
and effective form many of the most novel features of the Federal
Government. As the only copy of Pinckney's plan was furnished years
afterwards to Madison for his journal, it is possible that some of its
wisdom was of the _post factum_ variety.
Having received the two plans, the convention then went, on May 30,
into a committee of the whole to consider the fifteen propositions in
the Virginia plan _seriatim_. They wisely concluded to determine
abstract ideas first and concrete forms later. Apparently for the time
being little attention was paid to Pinckney's plan, and this may have
been due to the hostile attitude of the older members of the convention
to the presumption of his youth.
Then ensued a very remarkable debate on the immediate propositions and
the principles of government which underlay them, which lasted for two
weeks. On June 13 the committee rose. Even the fragments of this debate,
which may well have been one of the most notable in history, indicate
the care with which the members had studied governments of ancient and
modern times. There were many points of difference, but chief of them,
which nearly resulted in the collapse of the convention, was the
inevitable difficulty which always arises in the formation of a league
of States or an association of nations between the great and the little
States.
The five larger States had a population that was nearly twice as great
as the remaining eight States. Thus Virginia's population was nearly
ten-fold as great as Georgia. Moreover, the States differed greatly in
their material wealth and power. Nevertheless, all of them entered the
convention as independent sovereign nations, and the smaller nations
contended that the equality in suffrage and political power which
prevailed in the convention (in which each State, large or small, voted
as a unit), should and must be preserved in the future government. To
this the larger States were quite unwilling to yield, and when the
committee rose they reported, in substance, the Virginia plan, with the
proviso that representation in the proposed double-chambered Congress
should be "according to some equitable ratio of representation."
On June 15 the small States presented their draft, which was afterwards
known as the New Jersey plan, because it was introduced by Mr. Patterson
of that State. It only contemplated an amendment to the existing
Constitution and an amplification of the powers of the impotent
Confederation. Its chief advance over the existing government was that
it provided for a federal executive and a federal judiciary, but
otherwise the government remained a mere league of States, in which the
central government could generally act only by the vote of nine States,
and in which their power was exhausted when they requested the States to
enforce the decrees. Its chief advance over the Articles of
Confederation, in addition to the creation of an executive, was an
assertion that the acts of Congress "shall be the supreme law of the
respective States ... and that the judiciary of the several States shall
be bound thereby in their decisions," and that "if any State or any
body of men in any State shall oppose or prevent the carrying into
execution of such acts or treaties the federal executive shall be
authorized to call forth the power of the confederated States ... to
enforce and compel obedience to such acts or an observance of such
treaties."
While this was some advance toward a truly national government, it yet
left the national executive dependent upon the constituent States, for
if they failed to respond to the call above stated the national
government had no direct power over their citizens.
The New Jersey plan precipitated a crisis, and thereafter, and for many
days, the argument proceeded, only to increase in bitterness.
On June 18 Alexander Hamilton, who agreed with no one else, addressed
the convention for the first time. He spoke for five hours and reviewed
exhaustively the Virginia and New Jersey plans, and possibly the
Pinckney draft. Even the fragment of the speech, as taken in long-hand
by Madison, shows that it was a masterly argument. He stated his belief
"that the British Government was the best in the world and that he
doubted much whether anything short of it would do in America." He
praised the British Constitution, quoting Monsieur Necker as saying that
"it was the only government in the world which unites government
strength with individual security." He analysed and explained your
Constitution as it then was and advocated an elective monarchy in form
though not in name. It is true that he called the executive a "governor"
and not a king, but the governor, so-called, was to serve for life and
was given not only "a negative on all laws about to be passed," but even
the execution of all duly enacted laws was in his discretion. The
governor, with the consent of the Senate, was to make war, conclude all
treaties, make all appointments, pardon all offences, with the full
power through his negative of saying what laws should be passed and
which enforced. Hamilton's governor would have been not dissimilar to
Louis XIV, and could have said with him, "_L'état, c'est moi_!" The
Senate also served for life, and the only concession which Hamilton made
to democracy was an elective house of representatives. Thinly veiled,
his plan contemplated an elective king with greater powers than those of
George III, an imitation House of Lords and a popular House of Commons
with a limited tenure.
Hamilton's plan was never taken seriously and, so far as the records
show, was never afterwards considered. His admirers have given great
praise to his work in the federal convention. His real contribution lay
in the fact that when the Constitution was finally drafted and offered
to the people, while he regarded it as a "wretched makeshift," to use
his own expression, yet he was broad and patriotic enough to surrender
his own views and advocate the adoption of the Constitution. In so
doing, he fought a valorous fight, secured the acquiescence of the State
of New York, and without its ratification the Constitution would never
have been adopted. Hamilton later thought better of the Constitution,
and its successful beginning is due in large measure to his genius for
constructive administration.
As the debate proceeded, the crisis precipitated by the seemingly
insoluble differences between the great and little States became more
acute. The smaller States contended that the convention was
transgressing its powers, and they demanded that the credentials of the
various members be read. In this there was technical accuracy, for the
delegates had been appointed to revise the Articles of Confederation and
not to adopt a new Constitution. A majority of the convention, however,
insisted upon the convention proceeding with the consideration of a new
Constitution, and their views prevailed. It speaks well for the honour
of the delegates that although their differences became so acute as to
lead at times to bitter expressions, neither side divulged them to the
outside public. The smaller States could easily have ended the
convention by an appeal to public opinion, which was not then prepared
for a "consolidated union," but they were loyal enough to fight out
their quarrels within the walls of the convention hall.
At times the debate became bitter in the extreme. James Wilson, a
delegate of Pennsylvania and a Scotchman by birth and education, turning
to the representatives of the little States, passionately said:
"Will you abandon a country to which you are bound by so many strong
and enduring ties? Should the event happen, it will neither stagger
my sentiments nor duty. If the minority of the people refuse to
coalesce with the majority on just and proper principles, if a
separation must take place, it could never happen on better
grounds."
He referred to the demand of the larger States that representation
should be proportioned to the population. To this Bedford, of Delaware,
as heatedly replied;
"We have been told with a dictatorial air that this is the last
moment for a fair trial in favour of good government. It will be the
last, indeed, if the propositions reported by the committee go forth
to the people. The large States dare not dissolve the convention. If
they do, the small ones will find some foreign ally of more honour
and good faith, who will take them by the hand and do them justice."
Finally, the smaller States gave their ultimatum to the larger States
that unless representation in both branches of the proposed legislature
should be on the basis of equality--each State, whether large or small,
having one vote--they would forthwith leave the convention. An
eye-witness says that, at that moment, Washington, who was in the chair,
gave old Doctor Franklin a significant look. Franklin arose and moved an
adjournment for forty-eight hours, with the understanding that the
delegates should confer with those with whom they disagreed rather than
with those with whom they agreed.
A recess was taken, and when the convention re-convened on July 2, a
vote was taken as to equality of representation in the Senate and
resulted in a tie vote. It was then decided to appoint a committee of
eleven, one from each State, to consider the question, and this
committee reported three days later, on July 5, in favour of
proportionate representation in the House and equal representation in
the Senate. This suggestion, which finally saved the situation, was due
to that wise old utilitarian philosopher, Franklin. Again, a vehement
and passionate debate followed. Vague references were made to the sword
as the only method of solving the difference.
On July 9 the committee again reported, maintaining the principle of
their recommendation, while modifying its details, and the debate then
turned upon the question to what extent the negro slaves should count in
estimating population for the purposes of proportionate representation
in the lower House. Various suggestions were made to base representation
upon wealth or taxation and not upon population. For several days the
debate lasted during very heated weather, but on the night of July 12
the temperature dropped and with it the emotional temperature of the
delegates.
Some days previous, namely, June 28, when the debates were becoming so
bitter that it seemed unlikely that the convention could continue,
Doctor Franklin, erroneously supposed by many to be an atheist, made
the following solemn and beautiful appeal to their better natures. He
said:
"The small progress we have made after four or five weeks' close
attendance and continual reasonings with each other--our different
sentiments on almost every question, several of the last producing
as many noes as ayes, is, methinks, a melancholy proof of the
imperfection of the human understanding. We indeed seem to feel our
own want of political wisdom, since we have been running about in
search of it. We have gone back to ancient history for models of
government, and examined the different forms of those Republics
which, having been formed with the seeds of their own dissolution,
now no longer exist. And we have viewed modern States all around
Europe, but find none of their constitutions suitable to our
circumstances.
"In this situation of this Assembly, groping as it were in the dark
to find political truth, and scarce able to distinguish it when
presented to us, how has it happened, sir, that we have not hitherto
once thought of humbly applying to the Father of Lights to
illuminate our understandings?... And have we now forgotten that
powerful Friend or do we imagine that we no longer need His
assistance? I have lived, sir, a long time, and the longer I live,
the more convincing proofs I see of this truth: That _God governs in
the affairs of men_. And if a sparrow cannot fall to the ground
without His notice, is it probable that an empire can rise without
His aid? We have been assured, sir, in the sacred writings, that
'except the Lord build the House they labour in vain that build it.'
I firmly believe this; and I also believe that without His
concurring aid we shall succeed in this political building no better
than the builders of Babel. We shall be divided by our little
partial local interests; our projects will be confounded, and we
ourselves shall become a reproach and byword down to future ages.
And what is worse, mankind may hereafter from this unfortunate
instance, despair of establishing governments by human wisdom and
leave it to chance, war, and conquest.
"I therefore beg leave to move that henceforth prayers imploring the
assistance of Heaven, and its blessings on our deliberations, be
held in this Assembly every morning before we proceed to business,
and that one or more of the clergy of this city be requested to
officiate in that service."
It may surprise my audience to know the sequel. The resolution was voted
down, partly on the ground that if it became known to the public that
the convention had finally resorted to prayers it might cause undue
alarm, but also because the convention was by that time so low in funds
that, as one of the members said, it did not have enough money to pay a
clergyman his fees for the service. I suspect that their controlling
reason was their indisposition to break their self-imposed rule of
secrecy by contact with the outer world until their work was completed.
Perhaps they thought that "God helps those who help themselves."
On July 16 the compromise was finally adopted of recognizing the claims
of the larger States to proportionate representation in the House of
Representatives, and recognizing the claims of the smaller States by
according to them equal representation in the Senate. This great result
was not effected without the first break in the convention, for the
delegates from New York left in disgust and never returned, with the
exception of Hamilton, who occasionally attended subsequent sessions.
Such was the great concession that was made to secure the Constitution;
and the only respect in which the Constitution to-day cannot be amended
is that by express provision the equality of representation in the
Senate shall never be disturbed. Thus it is that to-day some States,
which have less population than some of the wards in the city of New
York, have as many votes in the Senate as the great State of New York.
It is unquestionably a palpable negation of majority rule, for as no
measure can become a law without the concurrence of the Senate--now
numbering ninety-six Senators--a combination of the little States, whoso
aggregate population is not a fifth of the American people, can defeat
the will of the remaining four-fifths. Pennsylvania and New York, with
nearly one-sixth of the entire population of the United States, have
only four votes in ninety-six votes in the Senate.
Fortunately, political alignments have rarely been between the greater
and the smaller States exclusively. Their equality in the Senate was a
big price to pay for the Union, but, as the event has shown, not too
great.
The convention next turned its attention to the Executive and the manner
of its selection, and upon this point there was the widest contrariety
of view, but, fortunately, without the acute feeling that the relative
power of the States had occasioned.
Then the judiciary article was taken up, and there was much earnest
discussion as to whether the new Constitution should embody the French
idea of giving to the judiciary, in conjunction with the Executive, a
revisory power over legislation. Three times the convention voted upon
this dangerous proposition, and on one occasion it was only defeated by
a single vote. Fortunately, the good sense of the convention rejected a
proposition, that had caused in France constant conflicts between the
Executive and the Judiciary, by substituting the right of the President
to veto congressional legislation, with the right of Congress, by a
two-thirds vote of each House, to override the veto, and secondly by an
implied power in the Judiciary to annul Congressional or State
legislation, not on the grounds of policy, but on the sole ground of
inconsistency with the paramount law of the Constitution. In this
adjustment, the influence of Montesquieu was evident.
These and many practical details had resulted in an expansion of the
fifteen proposals of the Virginia plan to twenty-three.
Having thus determined the general principles that should guide them in
their labours, the convention, on July 26 appointed a Committee on
Detail to embody these propositions in the formal draft of a
Constitution and adjourned until August 6 to await its report. That
report, when finally completed, covered seven folio pages, and was found
to consist of a Preamble and twenty-three Articles, embodying
forty-three sections. The draft did not slavishly follow the Virginia
propositions, for the committee embodied some valuable suggestions which
had occurred to them in their deliberations. Nevertheless, it
substantially put the Virginia plan into a workable plan which proved to
be the Constitution of the United States in embryo.