History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 6

[58] Mr. Brearly and Mr. Patterson.

[59] Louis XVI.

[60] Necker.

[61] Mr. Patterson had said, that, if they were to depart from the principle of equal sovereignty, the only expedient that would cure the difficulty would be to throw the States into hotchpot. To say that this was impracticable, would not make it so. Let it be tried, and they would see whether Ma.s.sachusetts, Pennsylvania, and Virginia would accede to it. (Madison, Elliot, V. 194.)

[62] Elliot, V. 206-211.

[63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was taken, and the committee of the whole were discharged, on the 19th of June.

CHAPTER VI.

CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION OF THE UNION.

We are now approaching a crisis in the action of the Convention, the history of which is full of instruction for all succeeding generations of the American people. We have witnessed the formation of a minority of the States, whose bond of connection was a common opposition to the establishment of what was regarded as a "national" government. The structure of this minority, as well as that of the majority to which they were opposed, the motives and purposes by which both were animated, and the results to which their conflicts finally led, are extremely important to be understood by the reader.

The relative rank of the different States in point of population, at the time of the formation of the Const.i.tution, was materially different from what it is at the present day. Virginia, then the first State in the Union, is now the fourth. New York, now at the head of the scale, then ranked after North Carolina and Ma.s.sachusetts, which occupied the third and fourth positions in the first census, and which now occupy respectively the sixth and tenth. South Carolina, which then had a smaller population than Maryland, now has a much greater.

Georgia at that time had not half so many inhabitants as New Jersey, but now has twice as many.

Great inequalities existed, as they still exist, between the different members of the confederacy, not only in the actual numbers of their inhabitants, and their present wealth, but in their capacity and opportunity of growth. Virginia, with a population fourteen times as large, had a territorial extent of thirty times the size of Delaware.

Pennsylvania had nearly seven times as many people as Rhode Island, and nearly forty times as much territory. The State of Georgia numbered a little more than a third as many people, but her territory was nearly twelve times as large as the territory of Connecticut.

The four leading States, Virginia, Pennsylvania, North Carolina, and Ma.s.sachusetts, had an obvious motive for seeking the establishment of a government founded on a proportionate representation of their respective populations. The States of South Carolina and Georgia had generally acted with them in the formation of the Virginia plan; and these six States thus const.i.tuted the majority by which the principle of what was called a "national," in distinction from a "federal"

government, had been steadily pressed to the conclusions arrived at in the committee of the whole, and now embraced in its report.[64] All but two of them were certain to remain slaveholding States; but in the adoption of numbers as the basis of representative influence in the government, they all had a common interest, which led them for the present to act together.[65]

At the head of the minority, or the States which desired a government of federal equality, stood the State of New York, then the fifth State in the Union. She was represented by Alexander Hamilton, Robert Yates, and John Lansing, Junior. The two latter uniformly acted together, and of course controlled the vote of the State. Hamilton's vote being thus neutralized, his influence on the action of the Convention extended no farther than the weight and importance attached to his arguments by those who listened to them.

Occupying at that period nearly a middle rank between the largest and the smallest of the States with respect to population, New York had not yet grasped, or even perceived, the wonderful elements of her future imperial greatness. Her commerce was not inconsiderable; but it had hitherto been the disposition of those who ruled her counsels to retain its regulation in their own hands, and to subject it to no imposts in favor of the general interests of the Union. Most of her public men, also,[66] held it to be impracticable to establish a general government of sufficient energy to pervade every part of the United States, and to carry its appropriate benefits equally to all, without sacrificing the const.i.tutional rights of the States to an extent that would ultimately prove to be dangerous to the liberties of their people. Their view of the subject was, that the uncontrolled powers and sovereignties of the States must be reserved; and that, consistently with the reservation of these, a mode might be devised of granting to the confederacy the moneys arising from a general system of revenue, some power of regulating commerce and enforcing the observance of treaties, and other necessary matters of less moment.

This was the opinion of Yates, the Chief Justice of the State, who may be taken as a fair representative of the sentiments of a large part, if not of a majority, of its people at this time.[67] But neither he, nor any of those who concurred with him, succeeded in pointing out the mode in which the power to collect revenues, to regulate commerce, and to enforce the observance of treaties, could be conferred on the confederacy, without impairing the sovereignties of the States. It does not appear whether this cla.s.s of statesmen contemplated a grant of full and unrestrained power over these subjects to a federal government, or whether they designed only a qualified grant, capable of being recalled or controlled by the parties to the confederacy, for reasons and upon occasions of which those parties were to judge. From the general course of their reasoning on the nature of a federal government, it might seem that the latter was their intention.[68] It is not difficult to understand how these gentlemen may have supposed that an irrevocable grant of powers to a general government might be dangerous to the liberties of the people of the States, because such a grant would involve a surrender of more or less of the original State sovereignties to a legislative body external to the State itself. But if they supposed that a grant of such powers could be made to a "federal" government, or a political league of the States, acting through a single body in the nature of a diet, and to be exercised when necessary by the combined military power of the whole, and yet be any less dangerous to liberty, it is difficult to appreciate their fears or to perceive the consistency of their plan. If the liberties of the people were any the less exposed under their system, than under that of a "national" government, it must have been because their system was understood by them to involve only a qualified and revocable surrender of State sovereignty.

But however this may have been, there was undoubtedly a settled conviction on the part of the two delegates of New York who controlled the vote of the State in the Convention, that they had not received the necessary authority from their own State to go beyond the principle of the Confederation; that it would be impracticable to establish a general government, without impairing the State const.i.tutions and endangering the liberties of the people; and that what they regarded as a "consolidated" government was not in the remotest degree within the contemplation of the legislature of New York when they were sent to take their seats in the Convention.

The same sentiments, with far greater zeal, with intense feeling and some acrimony, were held and acted upon by Luther Martin of Maryland, a very eminent lawyer, and at that time Attorney-General of the State, who sometimes had it in his power, from the absence of his colleagues, to cast the vote of his State with the minority, and who generally divided it on all critical questions that touched the nature of the government. The State itself, with a population but a little less than that of New York, had no great reason to regard itself as peculiarly exposed to the dangers to be apprehended from combinations among the larger States to oppress the smaller; and it does not appear that these apprehensions were strongly felt by any of her representatives excepting Mr. Martin.[69] The great energy and earnestness, however, of that distinguished person, prevented a concurrence of the State with the purposes and objects of the majority.

Connecticut might reasonably consider herself as one of the smaller States, and her vote was steadily given for an equality of suffrage in both branches of the national legislature, down to the time of the final division upon the Senate. The States of New Jersey and Delaware formed the other members of the minority, upon this general question.

On the one side, therefore, of what would have been, but for the great inequalities among the States, almost a purely speculative question, we find a strong determination, the result of an apparent necessity, to establish a government in which the democratic majority of the whole people of the United States should be the ruling power; and in which, so far as State influence was to be felt at all, it should be felt only in proportion to the relative numbers of the people composing each separate community. It was considered by those who embraced this side of the question, that, when the great States were asked to perpetuate the system of federal equality on which the Confederation had been founded, they were asked to submit to mere injustice, on account of an imaginary danger to their smaller confederates. They held it to be manifestly wrong, that a State fourteen times as large as Delaware should have only the same number of votes in the national legislature. Whether the States were now met as parties to a subsisting confederacy, under which they might be regarded in the same light as the individuals composing the social compact; or whether they were to be looked upon as so many aggregates of individuals for whose personal rights and interests provision was to be made, as if they composed a nation already united, it was believed by the majority that no safe and durable government could be formed, if the democratic element were to be excluded. Pure democracies had undoubtedly been attended with inconveniences. But how could peace and real freedom be preserved, under the republican form, if half a million of people dwelling in one political division of the country possessed only the same suffrage in the enactment of laws as sixty thousand people dwelling in another division? Leave out of view the theory which taught that the States alone, regarded as members of an existing compact, must be considered as the parties to the new system, as they had been to the old, and it would be found that the political equality of the free citizens of the United States could be made a source of that energy and strength so much needed and as yet so little known. With it was connected the idea and the practicability of legislation that would reach and control individuals. Without it, there could be only a system of coercion of the States, whose opposition would be invited, rather than repressed, upon all occasions of importance. Abandon the necessary principle of governing by a democratic majority, said George Mason, and if the government proceeds to taxation, the States will oppose its powers.[70]

On the other hand, the minority, insisting on a rigid construction of their powers, and planting themselves upon the nature of the compact already formed between the States, contended that these separate and sovereign communities had distinct governments already vested with the whole political power of their respective populations, and therefore that they could not, consistently with the truth of their situation, act as if the whole or any considerable part of that power could be transferred by the people themselves to another government. They said, that whatever power was to be conferred on a central or general government must be granted by the States, as political corporations, and that therefore the principle of the Union could not be changed, whatever addition it might be expedient to make to its authority. They said, that, even if this theory were not strictly true, the smaller States could not safely unite with the larger upon any other; and especially that they could not surrender their liberties to the keeping of a majority of the people inhabiting all the States, for such a power would inevitably destroy the State const.i.tutions. They were willing, they said, to enlarge the powers of the federal government; willing to provide for it the means of compelling obedience to its laws; willing to hazard much for the general welfare.

But they could not consent to place the very existence of their local governments, with all their capacity to protect the distinct interests of the people, and all their peculiar fitness for the administration of local concerns, at the mercy of great communities, whose policy might overshadow and whose power might destroy them.

To the claim of political equality as between a citizen of the largest and a citizen of the smallest State in the Union, they opposed the doctrine, that in his own State every citizen is equal with every other, and holds such rights and liberties, and so much political power, as the State may see fit to bestow upon him; but that, when separate States enter into political relations with each other for their common benefit, it is among the States themselves that the equality must prevail, because States can only be parties to a compact upon a footing of natural equality, just as individuals are supposed to enter society with equal natural rights. This doctrine, they said, was especially necessary to be applied between States of very unequal magnitudes. If applied, it would render unnecessary the division of the legislative body into two chambers; would dispense with any but a supreme judicial tribunal; and would admit of a ratification by the States in Congress, without raising the hazardous and doubtful question of a direct resort to the people, whose power to act independently of their State governments was by some strenuously denied.

These, in substance, were the principles now brought into direct collision, urged under a great variety of forms, and recurring upon the successive details of the Const.i.tution, as its formation proceeded, and pressed with equal earnestness and equally firm convictions of duty on both sides. I confess that it does not seem to me important, if it be practicable, to decide which party was theoretically correct. A great deal of the reasoning on both sides was speculative, and it is not easy to deny some of the chief propositions which were maintained on the one side and the other. We are too apt, perhaps, to judge of the real soundness of the opinions held by opposite parties to the first compromise of the Const.i.tution, by the subsequent history and success of the government, and by the views and feelings which we entertain of that history and that success. Whereas, in truth, if we place ourselves at the point where the framers of the Const.i.tution stood at the time we are examining, we shall find that, with the exception of the influence due to one or two governing facts of previous history, it was theoretically as correct to contend for a purely federal as for a purely national government. Almost everything depends upon the object towards which they were to reason; and therefore the premises were in a considerable degree open to an arbitrary choice. If the object was to establish a government, against the exercise of whose legitimate powers State legislation could not possibly be exerted, some higher authority than that of the State governments must be resorted to; and the reasoning which tended to prove the existence of that authority and the practicability of invoking it, and the danger of any other kind of government, comes logically and consistently in support of the great purpose to be attained. If, however, from an honest fear for the safety of local interests, the purpose was to have a government that would not seriously diminish the powers of the States, but would leave them with always unimpaired sovereignties, capable of resisting the measures of the central power, then the States were certainly competent and sufficient to the formation of such a system, and the reasoning which placed them in the light of parties to a social compact was theoretically true. On the one side, it was believed that a government formed by the States upon the principle of federal equality would be destructive of the powers of the general government, whatever those powers might be. On the other side, it was considered that the principle of governing by a democratic majority of the people of all the States would make those powers too formidable for the safety of the State const.i.tutions. According to the force we may a.s.sign to the one or the other tendency, the reasoning on either side will appear to us to be almost equally correct.

But there were, as I have said, one or two facts of previous history, which gave the advocates of a national government a great advantage over their opponents, and went far towards settling the real merits of the two opposite systems. A federal system had been tried, and had broken down in complete prostration of all the appropriate energies and functions of government. The advocates of the opposite system, therefore, could point to all the failures and all the defects of the Confederation, in proof of the reasoning which they employed. In addition to this, they could adduce the same general tendency in all former confederacies of the same nature. But no experiment had been made by the people of the American States, of a government founded expressly on the national character and relations of their inhabitants; and if the merits of such a government were now only to be maintained by theoretical reasoning, on the other hand it had not suffered the injury of acknowledged defeat.

The difficulty in the way of its adoption was its supposed tendency to absorb, and perhaps to annihilate, the sovereignties of the States.

The advocates of the Virginia plan were called upon to show how the general sovereignty and jurisdiction which they proposed to give to their system could consist with a considerable, though subordinate, jurisdiction in the States. One of its moderate and candid opponents[71] declared that, if this could be shown, the objections to it ought to be surrendered; but if not, he thought that those objections must have their full force. But, from the very nature of the case, that which had not been demonstrated by experience could rest only upon opinion; and while the Virginia system made no other provision for State defence against encroachments of the general government than such as might be found in the election by the State legislatures of the national Senate, the apprehensions of the smaller States could not be satisfied, however admirable the theory, and however able might be the reasoning by which it was supported.

Let the reader, then, as he pursues the history of this conflict between the opposing interests of the two cla.s.ses of States, and observes how strenuously the different theories were maintained, until victory became impossible on either side, note the danger of adhering too firmly to mere theoretical principles, in matters of government.

He will see the impressive spectacle of States a.s.sembled for the formation of some system capable of answering the exigencies of their situation; he will see how rapidly a difference of local interests developed the most opposite theories, and how profoundly those theories were discussed; and he will see this conflict carried on for days, and even for weeks, with all the sincerity that interest lends to conviction, and all the tenacity that conviction can produce, until at last the whole discussion leads to the probable failure of the purpose for which the a.s.sembly had been inst.i.tuted. He will then see an amalgamation of the two systems, which in their integrity were irreconcilable, and will witness the first introduction of that mode of adjusting opposite interests and conflicting theories of government which lies at the basis of the Const.i.tution of the United States, and which alone can furnish a safe foundation on which to unite the destinies and wants of separate communities possessed of distinct political organizations and rights.

The Convention had received the report of the committee of the whole on the 19th of June. From that day until the 5th of July the struggle was continued, commencing with the proposition which affirmed the division of the legislative department of the government into two branches. Although such an arrangement did not necessarily involve the principle of national and popular representation, it was opposed as unnecessary by those who desired to retain the system of representation by States, and who therefore intended to preserve the existing organization of the Congress. Still, the needful harmony and completeness of the scheme, according to the genius of the Anglo-American liberty, required this division of the legislature.

Doubtless a single council or chamber can promulgate decrees and enact laws; but it had never been the habit of the people of America, as it never had been the habit of their ancestors for at least a period of somewhat more than five centuries, to regard a single chamber as favorable to liberty, or to wise legislation.[72] The separation into two chambers of the lords spiritual and temporal, and the commons, in the English const.i.tution, does not seem to have originated in a difference of personal rank, so much as in their position as separate estates of the realm. All the orders might have voted promiscuously in one house, and just as effectually signified the a.s.sent or dissent of Parliament to any measure proposed.[73] But the practice of making the a.s.sent of Parliament to consist in the concurrent and separate action of the two estates, though difficult to be traced to its origin in any distinct purpose or cause, became confirmed by the growing importance of the commons, by their jealousy and vigilance, and by the controlling position which they finally a.s.sumed. As Parliament gradually proceeded to its present const.i.tution, and the separate rights and privileges of the two houses became established, it was found that the practice of discussing a measure in two a.s.semblies, composed of different persons, holding their seats by a different tenure and representing different orders of the state, was in the highest degree conducive to the security of the subject, and to sound legislation.[74]

So fully was the conviction of the practical convenience and utility of two chambers established in the Anglican mind, that, when representative government came to be established in the British North American Colonies, although the original reason for the division ceased to be applicable, it was retained for its incidental advantages. In none of these Colonies was there any difference of social condition, or of political privilege or power, recognized in the system of representation; and as there were, therefore, no separate estates or orders among the people, requiring to be protected against each other's encroachments, or holding different relations to the crown, we cannot attribute the adherence to the system of two chambers, on the part of those who solicited and received the privilege of establis.h.i.+ng these colonial governments, to anything but their belief in its practical advantages for the purposes of legislation. Still less can we suppose, that after the Revolution, and when there no longer existed any such motive as might have influenced the crown in modelling the colonial after the imperial inst.i.tutions, to a certain extent, the people of these States should have perpetuated in their const.i.tutions the principle of a division of the legislature into two chambers, for any other purpose than to secure the practical benefits which they and their ancestors had always found to flow from it.

Only three exceptions to this practice existed in America, at the time of the formation of the Const.i.tution. They were the legislatures of the States of Pennsylvania and Georgia, and the Congress of the Confederation.

But the Congress being in fact only an a.s.sembly of deputies from confederated States, the means scarcely existed for the application of the principle so familiar in the legislatures of most of the States themselves. As a new government was now to be formed, whose theoretical and actual powers were to be essentially different, an opportunity was afforded for the ancient and favorite construction of the legislative department. The proposal was resisted, not because it was doubted that, in a government of direct legislative authority, in which the people are themselves to be represented, the system of two chambers is practically the best, but because those who opposed its introduction denied the propriety of attempting to establish a government of that kind. The States of New York, New Jersey, and Delaware, therefore, recorded their votes against such a division of the legislature, and the vote of Maryland was divided upon the question.[75]

The reader will observe, however, that, in its present aspect, there was a chasm in the Virginia plan, which to some extent justifies the opposition of the minority to the system of two legislative chambers.

According to that plan, the people of the States were to be represented in both chambers in proportion to their numbers. But as there were no distinct orders among the people to furnish a different basis for the two houses, the system must either be a mere duplicate representation of the whole people, as it is in the State const.i.tutions generally, or some artificial basis must be provided for one house, to distinguish it from the other, and to furnish a check as between the two. In a republican government, and in a state of society where property is not entailed and distinctions of personal rank cannot exist, such a basis is not easily found; and if found, is not likely to be stable and effectual. The happy expedient of selecting the States as the basis of representation in the Senate, which had not yet been agreed upon, and which was resorted to as an adjustment of a serious conflict between two opposite principles of government, has furnished a really different foundation for the two branches, as distinct as the separate representation of the different orders in the British const.i.tution. It has thus secured the incidental advantages of two chambers, without resorting to those fluctuating or arbitrary distinctions among the people, which can alone afford, in such a country as ours, even an ostensible difference of origin for legislative bodies.

The same struggle which had been maintained upon this question was continued through all the votes taken upon the mode of electing the members of the two branches, and upon their tenure of office. It is not necessary here to rehea.r.s.e the details of these proceedings; the result was, that the members of the first branch of the legislature were to be chosen by the people of the States for a period of two years, and to be twenty-five years of age, while the members of the second or senatorial branch were to be chosen by the State legislatures for a period of six years, and to be thirty years of age. The States of Pennsylvania and Virginia voted against the election of senators by the legislatures of the States, because it was still uncertain whether an equality or a ratio of representation would finally prevail in that branch, and the election by the legislatures was considered to have a tendency to the adoption of an equality.[76]

At length, the sixth resolution, which defined the powers of Congress, and the seventh and eighth, which involved the fundamental point of the suffrage in the two branches, were reached.[77] The subject of the powers of Congress was postponed, and the question was stated on the rule of suffrage for the first branch, which the resolution declared ought to be according to an equitable ratio. In the great debate which ensued, Madison, Hamilton, Gorham, Reed, and Williamson combated the objections of the smaller States, while Luther Martin, with his accustomed warmth, resisted the introduction of the new principle. The discussion involved on both sides a repet.i.tion of the arguments previously employed; but some of the views presented are of great importance, especially those taken by Madison and Hamilton, of the situation in which the smaller States must be placed, if a const.i.tution should not be formed and adopted containing a just distribution of political power among the whole people of the country, creating thereby a government of sufficient energy to protect each and all of the States against foreign powers, against the influence of the larger members of the confederacy, and against the dangers to be apprehended from their own governments.

Let each State, said Mr. Madison, depend on itself for its security, in a position of independence of the Union, and let apprehensions arise of dangers from distant powers, or from neighboring States, and from their present languis.h.i.+ng condition, all the States, large as well as small, would be transformed into vigorous and high-toned governments, with an energy fatal to liberty and peace. The weakness and jealousy of the smaller States would quickly introduce some regular military force, against sudden danger from their powerful neighbors; the example would be followed, would soon become universal, and the means of defence against external danger would become the instruments of tyranny at home. These consequences were to be apprehended, whether the States should run into a total separation from each other, or into partial confederacies. Either event would be truly deplorable, and those who might be accessory to either could never be forgiven by their country, or by themselves.[78]

To these consequences of a dissolution of the Union, Hamilton added another, equally serious. Alliances, he declared, must be formed with different rival and hostile nations of Europe, who would seek to make us parties to their own quarrels. The representatives of foreign nations having American dominions betrayed the utmost anxiety about the result of that meeting of the States. It had been said that respectability in the eyes of Europe was not the object at which we were to aim; that the proper design of republican government was domestic tranquillity and happiness. This was an ideal distinction. No government could give us tranquillity and happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. This was the critical moment for forming such a government. We should run every risk in trusting to future amendments. As yet, we retain the habits of union. We are weak, and sensible of our weakness.

Henceforward the motives would become feeble and the difficulties greater. It was a miracle that they were here, exercising their tranquil and free deliberations on the subject. It would be madness to trust to future miracles.[79]

But these warnings were of no avail against the settled determination of those who saw greater dangers in the establishment of a government which was in their view to approximate the condition of the States to that of counties in a single State. The principle of a proportionate representation of the populations of the State, was just and necessary; but it was now leading to the extreme of an entire separation, because it was carried to the extreme of a full application to every part of the government. In like manner, there was an equally urgent necessity for some provision which should receive the States in their political capacity, and on a footing of equality, as const.i.tuent parts of the system. But this principle was now forcing the majority into the alternative of a partial confederacy, or of none at all, because it was insisted that the government must be exclusively founded on it. Neither party was ready to adopt the suggestion that the two ideas, instead of being opposed, ought to be combined, so that in one branch the people should be represented, and in the other the States.[80] The consequence was that the proportionate rule of suffrage for the first branch was established by a majority of one State only;[81] and the Convention pa.s.sed on, with a fixed and formidable minority wholly dissatisfied, to consider what rule should be applied to the Senate.

The objects of a Senate were readily apprehended. They were, in the first place, that there might be a second chamber, with a concurrent authority in the enactment of laws; secondly, that a greater degree of stability and wisdom might reside in its deliberations, than would be likely to be found in the other branch of the legislative department; and, thirdly, that there might be some diversity of interest between the two bodies. These objects were to be attained by providing for the Senate a distinct and separate basis of its own. If such a basis is found among the individuals composing a political society, it must consist of the distinctions among them either in respect to social rank or in respect to property. With regard to the first, the absence of all distinctions of rank rendered it impossible to a.s.similate the Senate of the United States to the aristocratic bodies which were found in other governments possessed of two legislative chambers.

Property, as held by individuals, might have been a.s.sumed as the basis of a distinct representation, if the laws and customs of the different States had generally admitted of its possession in large ma.s.ses through successive generations. But they did not admit of it. The general distribution and diffusion of property was the rule; its lineal transmission from the father to the eldest son was the exception. Had the Senate been founded upon property, it must have been upon the ratio of wealth as between the different States, in the same manner in which the senatorial representation of counties was arranged under the first const.i.tution of Ma.s.sachusetts.[82] It was very soon settled and conceded, that the States, as political societies, must be preserved; and if they were to be represented as corporations, or as so many separate aggregates of individuals, they must be received into the representation on an equal footing, or according to their relative weight. An inquiry into their relative wealth must have involved the question, as to five of them at least, whether their slaves were to be counted as part of that wealth. No satisfactory decision of this naked question could have been had; and it is to be considered among the most fortunate of the circ.u.mstances attending the formation of the Const.i.tution, that this question was not solved, with a view of founding the Senate upon the relative wealth of the States.

Two courses only remained. The basis of representation in the Senate must either be found in the numbers of people inhabiting the States, creating an unequal representation, or the people of each State, regarded as one, and as equal with the people of every other State, must be represented by the same number of voices and votes. The former was the plan insisted on by the friends and advocates of the "national" system; the latter was the great object on which the minority now rallied all their strength.

The debate was not long protracted; but it was marked with an energy, a firmness, and a warmth, on both sides, which reveal the nature of the peril then hanging over the unformed inst.i.tutions, whose existence now blesses the people of America. As the delegations of the States approached the decision of this critical question, the result of a separation became apparent, and with it phantoms of coming dissension and strife, of foreign alliances and adverse combinations, loomed in the future. Reason and argument became powerless to persuade.

Patriotism, for a moment, lost its sway over men who would at any time have died for their common country. Not mutterings only, but threats even were heard of an appeal to some foreign ally, by the smaller States, if the larger ones should dare to dissolve the confederacy by insisting on an unjust scheme of government.

Ellsworth, of Connecticut, in behalf of the minority, offered to accept the proportional representation for the first branch, if the equality of the States were admitted in the second, thus making the government partly national and partly federal. It would be vain, he said, to attempt any other than this middle ground. Ma.s.sachusetts was the only Eastern State that would listen to a proposition for excluding the States, as equal political societies, from an equal voice in both branches. The others would risk every consequence, rather than part with so dear a right. An attempt to deprive them of it was at once cutting the body of America in two.

At this moment, foreseeing the probability of an equal division of the States represented in the Convention, one of the New Jersey members[83] proposed that the President should write to the executive of New Hamps.h.i.+re, to request the attendance of the deputies who had been chosen to represent that State, and who had not yet taken seats.

Two States only voted for this motion,[84] and the discussion proceeded. Madison, Wilson, and King, with great earnestness, resisted the compromise proposed by Ellsworth, and when the vote was finally taken, five States were found to be in favor of an equal representation in the Senate, five were opposed to it, and the vote of Georgia was divided.[85]

Thus was this a.s.sembly of great and patriotic men brought finally to a stand, by the singular urgency with which opposite theories, springing from local interests and objects, were sought to be pressed into a const.i.tution of government, that was to be accepted by communities widely differing in extent, in numbers, and in wealth, and in all that const.i.tutes political power, and which were at the same time to remain distinct and separate States. As we look back to the possibility of a failure to create a const.i.tution, and try to divest ourselves of the ident.i.ty which the success of that experiment has given to our national life, the imagination wanders over a dreary waste of seventy years, which it can only fill with strange images of desolation. That the administration of Was.h.i.+ngton should never have existed; that Marshall should never have adjudicated, or Jackson conquered; that the arts, the commerce, the letters of America should not have taken the place which they hold in the affairs of the world; that instead of this great Union of prosperous and powerful republics, made one prosperous and powerful nation, history should have had nothing to show and nothing to record but border warfare and the conflicts of worn-out communities, the sport of the old clas.h.i.+ng policies of Europe; that self-government should have become one of the exploded delusions with which mankind have successively deceived themselves, and republican inst.i.tutions have been made only another name for anarchy and social disorder;--all these things seem at once inconceivable and yet probable,--at once the fearful conjurings of fancy, and the inevitable deductions of reason.

We know not what combinations, what efforts, might have followed the separation of that convention of American statesmen, without having accomplished the work for which they had been a.s.sembled. We do know, that, if _they_ could not have succeeded in framing and agreeing upon a system of government capable of commending itself to the free choice of the people of their respective States, no other body of men in this country could have done it. We know that the Confederation was virtually at an end; that its power was exhausted, although it still held the nominal seat of authority. The Union must therefore have been dissolved into its component parts, but for the wisdom and conciliation of those who, in their original earnestness to secure a perfect theory, had thus encountered an insuperable obstacle and brought about a great hazard. I have elsewhere said that these men were capable of the highest of the moral virtues,--that their magnanimity was as great as their intellectual acuteness and strength.