History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 24

We are next to ascertain in what mode the Const.i.tution, which had thus been framed, was to provide for its own establishment and authority.

There is a great difference between the importance of this question, as it presented itself to the framers of the Const.i.tution, and its importance to this or any succeeding generation. To us it is chiefly interesting because it displays the basis of a government which has been established for seventy years over the thirteen original States of the confederacy, and is now acknowledged by more than twice the number of those original States. To those who made the Const.i.tution, and to the people who were to vote upon it and to put it into operation, the mode in which it was to become the organic law of the Union was a topic of serious import and delicacy. It involved the questions, of what course would be politic with reference to the people; of what would be practicable; of the initiation of the new government without force; of its establishment on a firm, just, and legitimate authority; and of its right to supersede the Confederation, without a breach of faith toward the members of that body by whose inhabitants the new system might be rejected.

The Convention had already decided that the Const.i.tution must be ratified by the people of the States; but a difficulty had all along existed, in the opinions held by some of the members respecting the compact then subsisting between the States, which they regarded as indissoluble but by the consent of all the parties to it. The resolution, which the committee of detail were instructed to carry out, had declared that the new plan of government should first be submitted to the approbation of the existing Congress, and then to a.s.semblies of representatives to be recommended by the State legislatures and to be expressly chosen by the people to consider and decide upon it. But this direction embraced no decision of the question, whether the ratification by the people of a less number than all the States should be sufficient for putting the government into operation. If the people of a smaller number than the whole of the States could establish this form of government, what was to be its future relation to the States which might reject or refuse to consider it? Could any number of the States thus withdraw themselves from the Confederation, and establish for themselves a new general government, and could that government have any authority over the rest? Various and widely opposite theories were maintained. One opinion was, that all the States must accept the Const.i.tution, or it would be a nullity;--another, that a majority of the States might establish it, and so bind the minority, upon the principle that the Union was a society subject to the control of the greater part of its members;--still another, that the States which might ratify it would bind themselves, but no one else.

The truth with regard to these questions, which perplexed the minds of men in that a.s.sembly somewhat in proportion to their acuteness and their p.r.o.neness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the State legislatures. But in two very important particulars the Convention had already pa.s.sed beyond what could be deemed an alteration of those Articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the States, by whose will the State governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some States to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been p.r.o.nounced by twelve of the thirteen legislatures to be defective and inadequate to the exigencies of the Union. At the same time, the independent political existence of the people of each State made it impossible to treat them as a minority subject to the power of such majority as would be formed by the States that might adopt the Const.i.tution. If the people of a State should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new Union that would be formed by the rest. It was therefore determined that the Const.i.tution should undertake to be in force only in those States by whose inhabitants it might be adopted.[385]

Then came the question, in what mode the a.s.sent of the people of the States was to be given. The const.i.tution of one of the States[386]

provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Const.i.tution now proposed would involve extensive changes in the const.i.tution of every State. This was equally true of the const.i.tutions of those States which had provided no mode for making such changes, and in which the State officers were all bound by oath to support the existing const.i.tution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a State were the fountain of all political power, and if, in the method of appealing to them, the consent of the State government that such appeal should be made were involved, there could be no question that the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always a.s.sumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legislation.[387]

Whatever changes, therefore, in the State const.i.tutions might become necessary in consequence of the adoption of the national Const.i.tution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements might be made for it. But if no mode of ratification of the national Const.i.tution were to be prescribed, and it were left to each State to act upon it in any manner that it might prefer, there would be no uniformity in the mode of creating the new government in the different States; and if the Convention and the Congress were to refer its adoption to the State legislatures, it would not rest on the direct authority of the people.

For these reasons, the Convention adhered to the plan of having the Const.i.tution submitted directly to a.s.semblies of representatives of the people in each State, chosen for the express purpose of deciding on its adoption.[388]

There was still another question, of great practical importance, to be determined. Was the Const.i.tution to go into operation at all, unless adopted by all the States, and if so, what number should be sufficient for its establishment? It appeared clearly enough, that to require a unanimous adoption would defeat all the labors of the Convention. Rhode Island had taken no part in the formation of the Const.i.tution, and could not be expected to ratify it. New York had not been represented for some weeks in the Convention, and it was at least doubtful how the people of that State would receive the proposed system, to which a majority of their delegates had declared themselves to be strenuously opposed.[389] Maryland continued to be present in the Convention, and a majority of her delegates still supported the Const.i.tution; but Luther Martin confidently predicted its rejection by the State, and it was evident that his utmost energies would be put forth against it. Under these circ.u.mstances, to have required a unanimous adoption by the States would have been fatal to the experiment of creating a new government. Some of the members were in favor of such a number as would form both a majority of the States and a majority of the people of the United States. But there was an idea familiar to the people, in the number that had been required under the Confederation upon certain questions of grave importance; and in order that the Const.i.tution might avail itself of this established usage, it was determined that the ratifications of the conventions of _nine_ States should be sufficient to establish the Const.i.tution between the States that might so ratify it.[390]

The Const.i.tution, as thus finally prepared, received the formal a.s.sent of the States in the Convention, on the last day of the session.[391]

The great majority of the members desired that the instrument should go forth to the public, not only with an official attestation that it had been agreed upon by the States represented, but also with the individual sanction and signatures of their delegates. Three of the members present, however, Randolph and Mason of Virginia, and Gerry of Ma.s.sachusetts, notwithstanding the proposed form of attestation contained no personal approbation of the system, and signified only that it had been agreed to by the unanimous consent of the States then present, refused to sign the instrument.[392] The objections which these gentlemen had to different features of the Const.i.tution would have been waived, if the Convention had been willing to take a course quite opposite to that which had been thought expedient. They desired that the State conventions should be at liberty to propose amendments, and that those amendments should be finally acted upon by another general convention.[393] The nature of the plan, however, and the form in which it was to be submitted to the people of the States, made it necessary that it should be adopted or rejected as a whole, by the convention of each State. As a process of amendment by the action of the Congress and the State legislatures had been provided in the instrument, there was the less necessity for holding a second convention. The State conventions would obviously be at liberty to propose amendments, but not to make them a condition of their acceptance of the government as proposed.

A letter having been prepared to accompany the Const.i.tution, and to present it to the consideration and action of the existing Congress, the instrument was formally signed by all the other members then present. The official record sent to the Congress of the resolutions, which directed that the Const.i.tution be laid before that body, recited the presence of the States of New Hamps.h.i.+re, Ma.s.sachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. New York was not regarded as officially present; but in order that the proceedings might have all the weight that a name of so much importance could give to them, in the place that should have been filled by his State, was recited the name of "Mr. Hamilton from New York." The prominence thus given to the name of Hamilton, by the absence of his colleagues, was significant of the part he was to act in the great events and discussions that were to attend the ratification of the instrument by the States. His objections to the plan were certainly not less grave and important than those which were entertained by the members who refused to give to it their signatures; but like Madison, like Pinckney and Franklin and Was.h.i.+ngton, he considered the choice to be between anarchy and convulsion, on the one side, and the chances of good to be expected of this plan, on the other. Upon this issue, in truth, the Const.i.tution went to the people of the United States. There is a tradition, that, when Was.h.i.+ngton was about to sign the instrument, he rose from his seat, and, holding the pen in his hand, after a short pause, p.r.o.nounced these words:--"Should the States reject this excellent Const.i.tution, the probability is that an opportunity will never again offer to cancel another in peace,--the next will be drawn in blood."[394]

FOOTNOTES:

[374] Elliot, V. 332, 333.

[375] First draft of the Const.i.tution, Art. XVIII. Elliot, V. 381.

[376] Const.i.tution, Art. IV. -- 4.

[377] Elliot, V. 157.

[378] Elliot, V. 376.

[379] Elliot, V. 530-532.

[380] Const.i.tution, Art. I -- 9.

[381] Ibid. Art. I. -- 3.

[382] Elliot, V. 532.

[383] Ibid. 551, 552. Const.i.tution, Art. I -- 3.

[384] Const.i.tution, Art. VI.

[385] Elliot, V. 499.

[386] Maryland.

[387] Works of Daniel Webster, VI. 227.

[388] The vote, however, was only six States to four. Elliot, V. 500.

[389] Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing.

[390] 1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Const.i.tution.

[391] September 17.

[392] This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success.

[393] Mr. Madison has given the princ.i.p.al grounds of objection which these gentlemen felt to the Const.i.tution. It is not necessary to repeat them here, as they were nearly all met by the subsequent amendments, so far as they were special, and did not relate to the general tendency of the system. (See Madison, Elliot, V. 552-558.)

[394] My authority for this anecdote is the Pennsylvania Journal of November 14, 1787, where it was stated by a writer who dates his communication from Elizabethtown, November 7.

BOOK V.

ADOPTION OF THE CONSt.i.tUTION.

CHAPTER I.

GENERAL RECEPTION OF THE CONSt.i.tUTION.--HOPES OF A REUNION WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN Ma.s.sACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW HAMPs.h.i.+RE.--APPOINTMENT OF THEIR CONVENTIONS.

The national Convention was dissolved on the 14th of September. The state of expectation and anxiety throughout the country during its deliberations, and at the moment of its adjournment, will appear from a few leading facts and ideas, which ill.u.s.trate the condition of the popular mind when the Const.i.tution made its appearance.

The secrecy with which the proceedings of the Convention had been conducted, the nature of its business, and the great eminence and personal influence of its princ.i.p.al members, had combined to create the deepest solicitude in the public mind in all the chief centres of population and intelligence throughout the Union. An a.s.sembly of many of the wisest and most distinguished men in America had been engaged for four months in preparing for the United States a new form of government, and the public had acquired no definite knowledge of their transactions, and no information respecting the nature of the system they were likely to propose. Under these circ.u.mstances, we may expect to find the most singular rumors prevailing during the session of the Convention, and a great excitement in the public mind in many localities, when the result was announced. Among the reports that were more or less believed through the latter part of the summer, was the idle one that the Convention were framing a system of monarchical government, and that the Bishop of Osnaburg was to be sent for, to be the sovereign of the new kingdom.

Foolish as it may appear to us, this story occasioned some real alarm in its day. It is to be traced to a favorite idea of that cla.s.s of Americans who had either been avowed "Tories" during the Revolution, or had secretly felt a greater sympathy with the mother country than with the land of their birth, and who were at this period generally called "Loyalists." Some of these persons had taken no part, on either side, during the Revolutionary war, and had abstained from active partic.i.p.ation in public affairs since the peace. They were all of that cla.s.s of minds whose tendencies led them to the belief that the materials for a safe and efficient republican government were not to be found in these States, and that the public disorders could be corrected only by a government of a very different character. Their feelings and opinions carried them towards a reconciliation with England, and their grand scheme for this purpose was to invite hither the t.i.tular Bishop of Osnaburg.[395]

Their numbers were not large in any of the States; but the feeling of insecurity and the dread of impending anarchy were shared by others who had no particular inclination towards England; and it is not to be doubted that the Const.i.tution, among the other mischiefs which it averted, saved the country from a desperate attempt to introduce a form of government which must have been crushed beneath commotions that would have made all government, for a long time at least, impracticable. The public anxiety, created by the reports in circulation, had reached such a point in the month of August,--when it was rumored that the Convention had recently given a higher tone to the system they were preparing,--that members found it necessary to answer numerous letters of inquiry from persons who had become honestly alarmed. "Though we cannot affirmatively tell you," was their answer, "what we are doing, we can negatively tell you what we are _not_ doing:--we never once thought of a king."[396]

All doubt and uncertainty were dispelled, however, by the publication of the Const.i.tution in the newspapers of Philadelphia, on the 19th of September. It was at once copied into the princ.i.p.al journals of all the States, and was perhaps as much read by the people at large as any doc.u.ment could have been in the condition of the means of public intelligence which a very imperfect post-office department then afforded. It met everywhere with warm friends and warm opponents; its friends and its opponents being composed of various cla.s.ses of men, found, in different proportions, in almost all of the States. Those who became its advocates were, first, a large body of men, who recognized, or thought they recognized, in it the admirable system which it in fact proved to be when put into operation; secondly, those who, like most of the statesmen who made it, believed it to be the best attainable government that could be adopted by the people of the United States, overlooking defects which they acknowledged, or trusting to the power of amendment which it contained; and, thirdly, the mercantile and manufacturing cla.s.ses, who regarded its commercial and revenue powers with great favor. Its adversaries were those who had always opposed any enlargement of the federal system; those whose consequence as politicians would be diminished by the establishment of a government able to attract into its service the highest cla.s.ses of talent and character, and presenting a service distinct from that of the States; those who conscientiously believed its provisions and powers dangerous to the rights of the States and to public liberty; and, finally, those who were opposed to any government, whether State or national or federal, that would have vigor and energy enough to protect the rights of property, to prevent schemes of plunder in the form of paper money, and to bring about the discharge of public and private debts. The different opponents of the Const.i.tution being animated by these various motives, great care should be taken by posterity, in estimating the conduct of individuals, not to confound these cla.s.ses with each other, although they were often united in action.

As the Const.i.tution presented itself to the people in the light of a proposal to enlarge and reconstruct the system of the Federal Union, its advocates became known as the "Federalists," and its adversaries as the "Anti-Federalists." This celebrated designation of Federalist, which afterwards became so renowned in our political history as the name of a party, signified at first nothing more than was implied in the t.i.tle of the essays which pa.s.sed under that name, namely, an advocacy of the Const.i.tution of the United States.[397]

Midway between the active friends and opponents of the Const.i.tution lay that great and somewhat inert ma.s.s of the people, which, in all free countries, finally decides by its preponderance every seemingly doubtful question of political changes. It was composed of those who had no settled convictions or favorite theories respecting the best form of a general government, and who were under the influence of no other motive than a desire for some system that would relieve their industry from the oppressions under which it had long labored, and would give security, peace, and dignity to their country. Ardently attached to the principles of republican government and to their traditionary maxims of public liberty, and generally feeling that their respective States were the safest depositaries of those principles and maxims, this portion of the people of the United States were likely to be much influenced by the arguments against the Const.i.tution founded on its want of what was called a Bill of Rights, on its omission to secure a trial by jury in civil cases, and on the other alleged defects which were afterwards corrected by the first ten Amendments. But they had great confidence in the princ.i.p.al framers of the instrument, an unbounded reverence for Was.h.i.+ngton and Franklin, and a willingness to try any experiment sanctioned by men so ill.u.s.trious and so entirely incapable of any selfish or unworthy purpose.[398] There were, however, considerable numbers of the people, in the more remote districts of several of the States, who had a very imperfect acquaintance, if they had any, with the details of the proposed system, at the time when their legislatures were called upon to provide for the a.s.sembling of conventions; for we are not to suppose that what would now be the general and almost instantaneous knowledge of any great political event or topic, could have taken place at that day concerning the proposed Const.i.tution of the United States. Still it was quite generally understood before its final ratification in the States where its adoption was postponed to the following year, where information was most wanted, and where the chief struggles occurred; and it is doubtless correct to a.s.sert that its adoption was the intelligent choice of a majority of the people of each State, as well as the choice of their delegates, when their conventions successively acted upon it.

On the adjournment of the Convention, Madison, King, and Gorham, who held seats in the Congress of the Confederation, hastened to the city of New York, where that body was then sitting. They found eleven States represented.[399] But they found also that an effort was likely to be made, either to arrest the Const.i.tution on its way to the people of the States, or to subject it to alteration before it should be sent to the legislatures. It was received by official communication from the Convention in about ten days after that a.s.sembly was dissolved.

All that was asked of the Congress was, that they should transmit it to their const.i.tuent legislatures for their action. The old objection, that the Congress could with propriety partic.i.p.ate in no measure designed to change the form of a government which they were appointed to administer, having been answered, Richard Henry Lee of Virginia proposed to amend the instrument by inserting a Bill of Rights, trial by jury in civil cases, and other provisions in conformity with the objections which had been made in the Convention by Mr. Mason.

To the address and skill of Mr. Madison, I think, the defeat of this attempt must be attributed. If it had succeeded, the Const.i.tution could never have been adopted by the necessary number of States; for the recommendation of the Convention did not make the action of the State legislatures conditional upon their receiving the instrument from the Congress; the legislatures would have been at liberty to send the doc.u.ment published by the Convention to the a.s.semblies of delegates of the people, without adding provisions that might have been added by the Congress; some of them would have done so, while others would have followed the action of the Congress, and thus there would have been in fact two Const.i.tutions before the people of the States, and their acts of ratification would have related to dissimilar instruments. This consideration induced the Congress, by a unanimous vote of the States present, to adopt a resolution which, while it contained no approval of the Const.i.tution, abstained from interfering with it as it came from the Convention, and transmitted it to the State legislatures, "in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case."[400]

In Ma.s.sachusetts, the Const.i.tution was well received, on its first publication, so far as its friends in the central portion of the Union could ascertain. Mr. Gerry was a good deal censured for refusing to sign it, and the public voice, in Boston and its neighborhood, appeared to be strongly in its favor. But in a very short time three parties were formed among the people of the State, in such proportions as to make the result quite uncertain. The commercial cla.s.ses, the men of property, the clergy, the members of the legal profession, including the judges, the officers of the late army, and most of the people of the large towns, were decidedly in favor of the Const.i.tution. This party amounted to three sevenths of the people of the State. The inhabitants of the district of Maine, who were then looking forward to the formation of a new State, would be likely to vote for the new Const.i.tution, or to oppose it, as they believed it would facilitate or r.e.t.a.r.d their wishes; and this party numbered two sevenths. The third party consisted of those who had been concerned in the late insurrection under Shays, and their abettors; the majority of them desiring the annihilation of debts, public and private, and believing that the proposed Const.i.tution would strengthen all the rights of property. Their numbers were estimated at two sevenths of the people.[401] It was evident that a union of the first two parties would secure the ratification of the instrument, and a union of the last two would defeat it. Great caution, conciliation, and good temper were, therefore, required, on the part of its friends. The influence of Ma.s.sachusetts on Virginia, on New York, and indeed on all the States that were likely to act after her, would be of the utmost importance. The State convention was ordered to a.s.semble in January.