Formation of the Union, 1750-1829 Part 13

SPECIAL HISTORIES.--G. T. Curtis, _Const.i.tutional History, I. chs. xv.- x.x.xvi. (_History of the Const.i.tution_, III. 232-604); Geo. Bancroft, _United States_, last revision, VI. 195-462 (_History of the Const.i.tution_, I. 267-278, II. 1-47, 144, 350); William C. Rives, _James Madison_, II. 313-633; H. L. Carson, _One Hundredth Anniversary of the Const.i.tution_; J. B. McMaster, _Pennsylvania and the Federal Const.i.tution_; John Fiske, _Critical Period_, 183-350; S. H. Gay, _Madison_, 88-127; J. C. Hamilton, _Republic_, III. 236-569; J. H.

Robinson, _Sources of the Const.i.tution_; S. B. Harding, _Federal Const.i.tution in Ma.s.sachusetts_; C. E. Stevens, _Sources of the Const.i.tution_; C. Borgeaud, _Adoption and Amendment of Const.i.tutions_; the various State histories.

CONTEMPORARY ACCOUNTS.--Journal of the Convention, Madison's notes, Yates's notes, Luther Martin's letter, proceedings of State conventions,-- all in _Elliot's Debates_ (5 vols.); H. D. Gilpin, _Papers of James Madison_, vols. II., III.; brief references in the works of Was.h.i.+ngton, Madison, Hamilton, and Jefferson; letters in the biographies of Madison, Hamilton, Rufus King, Gerry; _The Federalist_.--Reprints in P. L. Ford, _Pamphlets on the Const.i.tution of the United States_, and _Essays on the Const.i.tution; American History told by Contemporaries_, III.; _Library of American Literature_, VI.

60. THE FEDERAL CONVENTION a.s.sEMBLED (1787).

[Sidenote: A convention suggested.]

[Sidenote: Annapolis Convention.]

[Sidenote: Action of Congress.]

That Congress did not possess the confidence of the country was evident from the failure of all its amendments. It had, therefore, been suggested first by Hamilton in 1780, later by Tom Paine in his widespread pamphlet "Public Good," that a convention be specially summoned to revise the Articles of Confederation. The initiative in the movement was finally taken by the States. In 1786 the intolerable condition of internal commerce caused Virginia to suggest to the sister States that a conference be held at Annapolis. The few delegates who appeared separated, after recommending that there be held "a convention of delegates from the different States ... to devise such further provisions as shall appear to them necessary to render the const.i.tution of the federal government adequate." Congress was no longer able to resist the movement: on Feb. 1, 1787, it resolved that a convention be held "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to by Congress and confirmed by the States, render the federal government adequate to the exigencies of government and the preservation of the union."

[Sidenote: Convention a.s.sembled.]

By May, 1787, delegates to the proposed convention had been chosen in all the States except New Hamps.h.i.+re and Rhode Island. Many of the ablest and most experienced public men were included. Among them were Francis Dana and Elbridge Gerry of Ma.s.sachusetts, Alexander Hamilton of New York, Benjamin Franklin of Pennsylvania, and James Madison and George Was.h.i.+ngton of Virginia. The convention was the most distinguished body which had ever a.s.sembled in America; if its work could not command public confidence, there was no hope for the Union.

61. DIFFICULTIES OF THE CONVENTION (1787).

[Sidenote: Task of the convention.]

When on May 25, 1787, the convention a.s.sembled at Philadelphia, its task, under the call of Congress, was limited to the preparation of amendments to the old Confederation. The first formal resolution to which it came after organization reads as follows: "That a national government ought to be established, consisting of a supreme legislature, executive, and judiciary." The convention from the beginning was evidently resolved to recommend a new, elaborate, and powerful form of government. The key to this action is found in the history of the twelve years from 1775 to 1787.

The country had tried a revolutionary, irresponsible, form of government, and it had not worked well. It had tried a union of sovereign States; neither the Union nor the States had prospered. The time had come to change the government in form, in powers, and in the means of carrying out its powers. The States must be held to their duties; Congress must be restrained; local quarrels must cease; revenue must be secured, commerce protected, and treaties guaranteed; the West must be saved, and insurrections put down. The first duty of the convention was to repair the errors of the Confederation.

[Sidenote: Want of authority.]

Americans have become accustomed to look upon the Const.i.tution as a kind of political revelation; the members of the convention themselves felt no sense of strength or inspiration. They had no authority of their own.

Their work must be submitted for the ratification of States which had been unable to agree upon a single modification of the articles. They must encounter the jealousy of Congress and the prejudices of the people. While the convention sat, a rumor went abroad that they would report in favor of a monarchy.

In order to bring the discussion to a focus, the Virginia delegates had agreed upon a plan drawn by Madison, who had been in communication with Was.h.i.+ngton; it was presented by Edmund Randolph. This plan in the end formed the basis of the const.i.tution as adopted.

[Sidenote: Divisions.]

No sooner had debate actually begun than the convention proved to be divided into many factions. Some members, like Patterson, were on principle opposed to a strong government; others, like Hamilton, desired to break down the State boundaries, and to create a centralized republic.

Still more distinct was the opposition between the large States and the small: the former inclined to a representation based on population; the latter insisted that the States should be equal units. Again, the trading States--New England, New York, and Maryland--were inclined to grant large powers over commerce; the agricultural States, particularly Virginia, wished to see commerce regulated still by the States in part. Another line of division was between the slaveholding and the non-slaveholding States; here the champions were Ma.s.sachusetts on one side, and South Carolina on the other. Throughout the convention these various elements combined and recombined as their interests seemed affected. Although there were no permanent parties, the members of which regularly voted together, there was disagreement and disappointment from the beginning to the end.

62. SOURCES OF THE CONSt.i.tUTION.

[Sidenote: American experience.]

Another popular delusion with regard to the Const.i.tution is that it was created out of nothing; or, as Mr. Gladstone puts it, that "It is the greatest work ever struck off at any one time by the mind and purpose of man." The radical view on the other side is expressed by Sir Henry Maine, who informs us that the "Const.i.tution of the United States is a modified version of the British Const.i.tution ... which was in existence between 1760 and 1787." The real source of the Const.i.tution is the experience of Americans. They had established and developed admirable little commonwealths in the colonies; since the beginning of the Revolution they had had experience of State governments organized on a different basis from the colonial; and, finally, they had carried on two successive national governments, with which they had been profoundly discontented.

The general outline of the new Const.i.tution seems to be English; it was really colonial. The President's powers of military command, of appointment, and of veto were similar to those of the colonial governor.

National courts were created on the model of colonial courts. A legislature of two houses was accepted because such legislatures had been common in colonial times. In the English Parliamentary system as it existed before 1760 the Americans had had no share; the later English system of Parliamentary responsibility was not yet developed, and had never been established in colonial governments; and they expressly excluded it from their new Const.i.tution.

[Sidenote: State experience.]

They were little more affected by the experience of other European nations. Just before they a.s.sembled, Madison drew up an elaborate abstract of ancient, mediaeval, and existing federal governments, of which he sent a copy to Was.h.i.+ngton. It is impossible to trace a single clause of the Const.i.tution to any suggestion in this paper. The chief source of the details of the Const.i.tution was the State const.i.tutions and laws then in force. Thus the clause conferring a suspensive veto on the President is an almost literal transcript from the Ma.s.sachusetts const.i.tution. In fact, the princ.i.p.al experiment in the Const.i.tution was the establishment of an electoral college; and of all parts of the system this has worked least as the framers expected. The Const.i.tution represents, therefore, the acc.u.mulated experience of the time; its success is due to the wisdom of the members in selecting out of the ma.s.s of colonial and State inst.i.tutions those which were enduring,

[Sidenote: Novelties.]

The real boldness of the Const.i.tution is the novelty of the federal system which it set up. For the first time in history an elaborate written const.i.tution was applied to a federation; and the details were so skilfully arranged that the instrument framed for thirteen little agricultural communities works well for forty-four large and populous States. A second novelty was a system of federal courts skilfully brought into harmony with the State judiciary. Even here we see an effect of the twelve years experience of imperfect federation. The convention knew how to select inst.i.tutions that would stand together; it also knew how to reject what would have weakened the structure.

63. THE GREAT COMPROMISES (1787).

[Sidenote: State sovereignty.]

It was a long time before a compromise between the discordant elements could be reached. To declare the country a centralized nation was to destroy the traditions of a century and a half: to leave it an a.s.semblage of States, each claiming independence and sovereignty, was to throw away the results of the Revolution. The convention finally agreed that while the Union should be endowed with adequate powers, the States should retain all powers not specifically granted, and particularly the right to regulate their own internal affairs.

[Sidenote: Representation of States.]

The next great question all but led to the breaking up of the convention.

The New Hamps.h.i.+re delegate had not yet appeared, and Rhode Island was never represented in the convention; the large states had therefore a majority of one. On June 13 it was voted that the ratio of representation in both branches of the legislature should be in proportion to the population. Two days later, Patterson of New Jersey brought forward a plan satisfactory to the small States, by which the old plan of vote by States was to be retained, and the Confederation practically continued. For many days the two parties were unable to agree; the crisis was so serious that on June 28 Franklin, who was not renowned for piety, moved that thenceforward the sessions be opened with prayer. The deadlock was finally broken by the so-called Connecticut Compromise, adopted July 7: equal representation was to be preserved in the upper house, and proportional representation was to be granted in the lower.

[Sidenote: Representation of slaves.]

When it was proposed to levy taxes on the same basis, the Southern members objected that their negroes were not equal to freemen as producers of wealth. On July 12, the matter was adjusted by a compromise: the Southerners agreed to count slaves only at three fifths of their number, in apportioning both representatives and direct taxes. Since direct taxes have been but three times a.s.sessed in the history of the United States, the practical advantage was on the side of the North.

[Sidenote: Slave trade.]

It was otherwise in the third difficult question. Near the end of the convention the commercial and the agricultural States came into a disagreement. New England was anxious that Congress should have power to pa.s.s Acts protecting American s.h.i.+pping; on the other hand, the South desired to continue the slave-trade. Pinckney declared that "South Carolina can never receive the plan if it prohibits the slave-trade;" and Sherman of Connecticut cynically remarked, "The slave-trade is iniquitous; but inasmuch as the point of representation was settled, he should not object." On August 24 a third compromise left to Congress the power of pa.s.sing Navigation Acts, but forbade it to prohibit the slave-trade during twenty years.

64. DETAILS OF THE CONSt.i.tUTION (1787).

[Sidenote: Difficult questions.]

These difficult points out of the way, the convention arranged the details of the new government. One of the princ.i.p.al minor questions was the method of presidential election. Many members inclined towards an executive council; instead, it was agreed that there should be a President elected by Congress; but almost at the last moment, on September 7, the better plan of indirect election by the people was adopted. At one time the convention had agreed that Congress should have the right of veto upon State laws; it was abandoned, and instead was introduced a clause that the Const.i.tution should be the supreme law of the land, and powerful courts were created to construe the law.

[Sidenote: Simplicity of the Const.i.tution.]

In making up the list of the powers of Congress, the convention used brief but comprehensive terms. Thus all the difficulties arising out of the unfriendly commercial legislation of States, and their inst.i.tution, with foreign treaties, were removed by the simple clause: "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The great question of taxation was settled by fourteen words: "The Congress shall have Power ...

To lay and collect Taxes, Duties, Imposts, and Excises."

[Sidenote: Omissions.]

In a few respects the Const.i.tution was deficient. It did not profess to be all-comprehensive, for the details of the government were to be worked out in later statutes. There was, however, no provision for future annexations of territory. No safeguards were provided for the proper appointment and removal of public officers. The growth of corporations was not foreseen, and no distinct power was conferred upon Congress either to create or to regulate them. Above all, the convention was obliged to leave untouched the questions connected with slavery which later disrupted the Union.

[Sidenote: The work finished.]

On Sept. 17, 1787, the convention finished its work. To the eloquent and terse phraseology of Gouverneur Morris we owe the nervous English of the great instrument. As the members were affixing their signatures, Franklin remarked, pointing to the picture of a sun painted behind the President's chair: "I have often and often,... in the vicissitudes of my hopes and fears, looked ... without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising and not a setting sun."