The Fathers of the Constitution Part 3

It usually happens that some minor occurrence, almost unnoticed at the time, leads directly to the most important consequences. And an incident in domestic affairs started the chain of events in the United States that ended in the reform of the Federal Government. The rivalry and jealousy among the States had brought matters to such a pa.s.s that either Congress must be vested with adequate powers or the Confederation must collapse. But the Articles of Confederation provided no remedy, and it had been found that amendments to that instrument could not be obtained. It was necessary, therefore, to proceed in some extra-legal fas.h.i.+on. The Articles of Confederation specifically forbade treaties or alliances between the States unless approved by Congress. Yet Virginia and Maryland, in 1785, had come to a working agreement regarding the use of the Potomac River, which was the boundary line between them. Commissioners representing both parties had met at Alexandria and soon adjourned to Mount Vernon, where they not only reached an amicable settlement of the immediate questions before them but also discussed the larger subjects of duties and commercial matters in general. When the Maryland legislature came to act on the report, it proposed that Pennsylvania and Delaware should be invited to join with them in formulating a common commercial policy. Virginia then went one step farther and invited all the other States to send commissioners to a general trade convention and later announced Annapolis as the place of meeting and set the time for September, 1786.

This action was unconst.i.tutional and was so recognized, for James Madison notes that "from the Legislative Journals of Virginia it appears, that a vote to apply for a sanction of Congress was followed by a vote against a communication of the Compact to Congress," and he mentions other similar violations of the central authority. That this did not attract more attention was probably due to the public interest being absorbed just at that time by the paper money agitation. Then, too, the men concerned seem to have been willing to avoid publicity. Their purposes are well brought out in a letter of Monsieur Louis Otto, French Charge d'Affaires, written on October 10, 1786, to the Comte de Vergennes, Minister for Foreign Affairs, though their motives may be somewhat misinterpreted.

"Although there are no n.o.bles in America, there is a cla.s.s of men denominated "gentlemen," who, by reason of their wealth, their talents, their education, their families, or the offices they hold, aspire to a preeminence which the people refuse to grant them; and, although many of these men have betrayed the interests of their order to gain popularity, there reigns among them a connection so much the more intimate as they almost all of them dread the efforts of the people to despoil them of their possessions, and, moreover, they are creditors, and therefore interested in strengthening the government, and watching over the execution of the laws.

"These men generally pay very heavy taxes, while the small proprietors escape the vigilance of the collectors. The majority of them being merchants, it is for their interest to establish the credit of the United States in Europe on a solid foundation by the exact payment of debts, and to grant to congress powers extensive enough to compel the people to contribute for this purpose. The attempt, my lord, has been vain, by pamphlets and other publications, to spread notions of justice and integrity, and to deprive the people of a freedom which they have so misused. By proposing a new organization of the federal government all minds would have been revolted; circ.u.mstances ruinous to the commerce of America have happily arisen to furnish the reformers with a pretext for introducing innovations.

"They represented to the people that the American name had become opprobrious among all the nations of Europe; that the flag of the United States was everywhere exposed to insults and annoyance; the husbandman, no longer able to export his produce freely, would soon be reduced to want; it was high time to retaliate, and to convince foreign powers that the United States would not with impunity suffer such a violation of the freedom of trade, but that strong measures could be taken only with the consent of the thirteen states, and that congress, not having the necessary powers, it was essential to form a general a.s.sembly instructed to present to congress the plan for its adoption, and to point out the means of carrying it into execution.

"The people, generally discontented with the obstacles in the way of commerce, and scarcely suspecting the secret motives of their opponents, ardently embraced this measure, and appointed commissioners, who were to a.s.semble at Annapolis in the beginning of September.

"The authors of this proposition had no hope, nor even desire, to see the success of this a.s.sembly of commissioners, which was only intended to prepare a question much more important than that of commerce. The measures were so well taken that at the end of September no more than five states were represented at Annapolis, and the commissioners from the northern states tarried several days at New York in order to r.e.t.a.r.d their arrival.

"The states which a.s.sembled, after having waited nearly three weeks, separated under the pretext that they were not in sufficient numbers to enter on business, and, to justify this dissolution, they addressed to the different legislatures and to congress a report, the translation of which I have the honor to enclose to you."*

* Quoted by Bancroft, "History of the Formation of the Const.i.tution," vol. ii, Appendix, pp. 399-400.

Among these "men denominated 'gentlemen'" to whom the French Charge d'Affaires alludes, was James Madison of Virginia. He was one of the younger men, unfitted by temperament and physique to be a soldier, who yet had found his opportunity in the Revolution. Graduating in 1771 from Princeton, where tradition tells of the part he took in patriotic demonstrations on the campus-characteristic of students then as now-he had thrown himself heart and soul into the American cause. He was a member of the convention to frame the first State Const.i.tution for Virginia in 1776, and from that time on, because of his ability, he was an important figure in the political history of his State and of his country. He was largely responsible for bringing about the conference between Virginia and Maryland and for the subsequent steps resulting in the trade convention at Annapolis. And yet Madison seldom took a conspicuous part, preferring to remain in the background and to allow others to appear as the leaders. When the Annapolis Convention a.s.sembled, for example, he suffered Alexander Hamilton of New York to play the leading role.

Hamilton was then approaching thirty years of age and was one of the ablest men in the United States. Though his best work was done in later years, when he proved himself to be perhaps the most brilliant of American statesmen, with an extraordinary genius for administrative organization, the part that he took in the affairs of this period was important. He was small and slight in person but with an expressive face, fair complexion, and cheeks of "almost feminine rosiness." The usual aspect of his countenance was thoughtful and even severe, but in conversation his face lighted up with a remarkably attractive smile. He carried himself erectly and with dignity, so that in spite of his small figure, when he entered a room "it was apparent, from the respectful attention of the company, that he was a distinguished person." A contemporary, speaking of the opposite and almost irreconcilable traits of Hamilton's character, p.r.o.nounced a bust of him as giving a complete exposition of his character: "Draw a handkerchief around the mouth of the bust, and the remnant of the countenance represents fort.i.tude and intrepidity such as we have often seen in the plates of Roman heroes. Veil in the same manner the face and leave the mouth and chin only discernible, and all this fort.i.tude melts and vanishes into almost feminine softness."

Hamilton was a leading spirit in the Annapolis Trade Convention and wrote the report that it adopted. Whether or not there is any truth in the a.s.sertion of the French charge that Hamilton and others thought it advisable to disguise their purposes, there is no doubt that the Annapolis Convention was an all-important step in the progress of reform, and its recommendation was the direct occasion of the calling of the great convention that framed the Const.i.tution of the United States.

The recommendation of the Annapolis delegates was in the form of a report to the legislatures of their respective States, in which they referred to the defects in the Federal Government and called for "a convention of deputies from the different states for the special purpose of entering into this investigation and digesting a Plan for supplying such defects." Philadelphia was suggested as the place of meeting, and the time was fixed for the second Monday in May of the next year.

Several of the States acted promptly upon this recommendation and in February, 1787, Congress adopted a resolution accepting the proposal and calling the convention "for the sole and express purpose of revising the Articles of Confederation and reporting. .. such alterations... as shall... render the Federal Const.i.tution adequate to the exigencies of Government and the preservation of the Union." Before the time fixed for the meeting of the Philadelphia Convention, or shortly after that date, all the States had appointed deputies with the exception of New Hamps.h.i.+re and Rhode Island. New Hamps.h.i.+re was favorably disposed toward the meeting but, owing to local conditions, failed to act before the Convention was well under way. Delegates, however, arrived in time to share in some of the most important proceedings. Rhode Island alone refused to take part, although a letter signed by some of the prominent men was sent to the Convention pledging their support.

CHAPTER VI. THE FEDERAL CONVENTION

The body of delegates which met in Philadelphia in 1787 was the most important convention that ever sat in the United States. The Confederation was a failure, and if the new nation was to be justified in the eyes of the world, it must show itself capable of effective union. The members of the Convention realized the significance of the task before them, which was, as Madison said, "now to decide forever the fate of Republican government." Gouverneur Morris, with unwonted seriousness, declared: "The whole human race will be affected by the proceedings of this Convention." James Wilson spoke with equal gravity: "After the lapse of six thousand years since the creation of the world America now presents the first instance of a people a.s.sembled to weigh deliberately and calmly and to decide leisurely and peaceably upon the form of government by which they will bind themselves and their posterity."

Not all the men to whom this undertaking was entrusted, and who were taking themselves and their work so seriously, could pretend to social distinction, but practically all belonged to the upper ruling cla.s.s. At the Indian Queen, a tavern on Fourth Street between Market and Chestnut, some of the delegates had a hall in which they lived by themselves. The meetings of the Convention were held in an upper room of the State House. The sessions were secret; sentries were placed at the door to keep away all intruders; and the pavement of the street in front of the building was covered with loose earth so that the noises of pa.s.sing traffic should not disturb this august a.s.sembly. It is not surprising that a tradition grew up about the Federal Convention which hedged it round with a sort of awe and reverence. Even Thomas Jefferson referred to it as "an a.s.sembly of demiG.o.ds." If we can get away from the glamour which has been spread over the work of the Fathers of the Const.i.tution and understand that they were human beings, even as we are, and influenced by the same motives as other men, it may be possible to obtain a more faithful impression of what actually took place.

Since representation in the Convention was to be by States, just as it had been in the Continental Congress, the presence of delegations from a majority of the States was necessary for organization. It is a commentary upon the times, upon the difficulties of travel, and upon the leisurely habits of the people, that the meeting which had been called for the 14th of May could not begin its work for over ten days. The 25th of May was stormy, and only twenty-nine delegates were on hand when the Convention organized. The slender attendance can only partially be attributed to the weather, for in the following three months and a half of the Convention, at which fifty-five members were present at one time or another, the average attendance was only slightly larger than that of the first day. In such a small body personality counted for much, in ways that the historian can only surmise. Many compromises of conflicting interests were reached by informal discussion outside of the formal sessions. In these small gatherings individual character was often as decisive as weighty argument.

George Was.h.i.+ngton was unanimously chosen as the presiding officer of the Convention. He sat on a raised platform; in a large, carved, high-backed chair, from which his commanding figure and dignified bearing exerted a potent influence on the a.s.sembly; an influence enhanced by the formal courtesy and stately intercourse of the times. Was.h.i.+ngton was the great man of his day and the members not only respected and admired him; some of them were actually afraid of him. When he rose to his feet he was almost the Commander-in-Chief again. There is evidence to show that his support or disapproval was at times a decisive factor in the deliberations of the Convention.

Virginia, which had taken a conspicuous part in the calling of the Convention, was looked to for leaders.h.i.+p in the work that was to be done. James Madison, next to Was.h.i.+ngton the most important member of the Virginia delegation, was the very opposite of Was.h.i.+ngton in many respects-small and slight in stature, inconspicuous in dress as in figure, modest and retiring, but with a quick, active mind and wide knowledge obtained both from experience in public affairs and from extensive reading. Was.h.i.+ngton was the man of action; Madison, the scholar in politics. Madison was the younger by nearly twenty years, but Was.h.i.+ngton admired him greatly and gave him the support of his influence-a matter of no little consequence, for Madison was the leading expert worker of the Convention in the business of framing the Const.i.tution. Governor Edmund Randolph, with his tall figure, handsome face, and dignified manner, made an excellent impression in the position accorded to him of nominal leader of the Virginia delegation. Among others from the same State who should be noticed were the famous lawyers, George Wythe and George Mason.

Among the deputies from Pennsylvania the foremost was James Wilson, the "Caledonian," who probably stood next in importance in the convention to Madison and Was.h.i.+ngton. He had come to America as a young man just when the troubles with England were beginning and by sheer ability had attained a position of prominence. Several times a member of Congress, a signer of the Declaration of Independence, he was now regarded as one of the ablest lawyers in the United States. A more brilliant member of the Pennsylvania delegation, and one of the most brilliant of the Convention, was Gouverneur Morris, who shone by his cleverness and quick wit as well as by his wonderful command of language. But Morris was admired more than he was trusted; and, while he supported the efforts for a strong government, his support was not always as great a help as might have been expected. A crippled arm and a wooden leg might detract from his personal appearance, but they could not subdue his spirit and audacity.*

* There is a story which ill.u.s.trates admirably the audacity of Morris and the austere dignity of Was.h.i.+ngton. The story runs that Morris and several members of the Cabinet were spending an evening at the President's house in Philadelphia, where they were discussing the absorbing question of the hour, whatever it may have been. "The President," Morris is said to have related on the following day, "was standing with his arms behind him-his usual position-his back to the fire. I started up and spoke, stamping, as I walked up and down, with my wooden leg; and, as I was certain I had the best of the argument, as I finished I stalked up to the President, slapped him on the back, and said. "Ain't I right, General?" The President did not speak, but the majesty of the American people was before me. Oh, his look! How I wished the floor would open and I could descend to the cellar! You know me,"

continued Mr. Morris, "and you know my eye would never quail before any other mortal."-W. T. Read, Life and Correspondence of George Read (1870) p.441.

There were other prominent members of the Pennsylvania delegation, but none of them took an important part in the Convention, not even the aged Benjamin Franklin, President of the State. At the age of eighty-one his powers were failing, and he was so feeble that his colleague Wilson read his speeches for him. His opinions were respected, but they do not seem to have carried much weight.

Other noteworthy members of the Convention, though hardly in the first cla.s.s, were the handsome and charming Rufus King of Ma.s.sachusetts, one of the coming men of the country, and Nathaniel Gorham of the same State, who was President of Congress-a man of good sense rather than of great ability, but one whose reputation was high and whose presence was a distinct a.s.set to the Convention. Then, too, there were the delegates from South Carolina: John Rutledge, the orator, General Charles Cotesworth Pinckney of Revolutionary fame, and his cousin, Charles Pinckney. The last named took a conspicuous part in the proceedings in Philadelphia but, so far as the outcome was concerned, left his mark on the Const.i.tution mainly in minor matters and details.

The men who have been named were nearly all supporters of the plan for a centralized government. On the other side were William Paterson of New Jersey, who had been Attorney-General of his State for eleven years and who was respected for his knowledge and ability; John d.i.c.kinson of Delaware, the author of the "Farmer's Letters" and chairman of the committee of Congress that had framed the Articles of Confederation-able, scholarly, and sincere, but nervous, sensitive, and conscientious to the verge of timidity-whose refusal to sign the Declaration of Independence had cost him his popularity, though he was afterward returned to Congress and became president successively of Delaware and of Pennsylvania; Elbridge Gerry of Ma.s.sachusetts, a successful merchant, prominent in politics, and greatly interested in questions of commerce and finance; and the Connecticut delegates, forming an unusual trio, Dr. William Samuel Johnson, Roger Sherman, and Oliver Ellsworth. These men were fearful of establis.h.i.+ng too strong a government and were at one time or another to be found in opposition to Madison and his supporters. They were not mere obstructionists, however, and while not constructive in the same way that Madison and Wilson were, they must be given some credit for the form which the Const.i.tution finally a.s.sumed. Their greatest service was in restraining the tendency of the majority to overrule the rights of States and in modifying the desires of individuals for a government that would have been too strong to work well in practice.

Alexander Hamilton of New York, as one of the ablest members of the Convention, was expected to take an important part, but he was out of touch with the views of the majority. He was aristocratic rather than democratic and, however excellent his ideas may have been, they were too radical for his fellow delegates and found but little support. He threw his strength in favor of a strong government and was ready to aid the movement in whatever way he could. But within his own delegation he was outvoted by Robert Yates and John Lansing, and before the sessions were half over he was deprived of a vote by the withdrawal of his colleagues. Thereupon, finding himself of little service, he went to New York and returned to Philadelphia only once or twice for a few days at a time, and finally to sign the completed doc.u.ment. Luther Martin of Maryland was an able lawyer and the Attorney-General of his State; but he was supposed to be allied with undesirable interests, and it was said that he had been sent to the Convention for the purpose of opposing a strong government. He proved to be a tiresome speaker and his prosiness, when added to the suspicion attaching to his motives, cost him much of the influence which he might otherwise have had.

All in all, the delegates to the Federal Convention were a remarkable body of men. Most of them had played important parts in the drama of the Revolution; three-fourths of them had served in Congress, and practically all were persons of note in their respective States and had held important public positions. They may not have been the "a.s.sembly of demiG.o.ds" which Jefferson called them, for another contemporary insisted "that twenty a.s.semblies of equal number might be collected equally respectable both in point of ability, integrity, and patriotism." Perhaps it would be safer to regard the Convention as a fairly representative body, which was of a somewhat higher order than would be gathered together today, because the social conditions of those days tended to bring forward men of a better cla.s.s, and because the seriousness of the crisis had called out leaders of the highest type.

Two or three days were consumed in organizing the Convention-electing officers, considering the delegates' credentials, and adopting rules of procedure; and when these necessary preliminaries had been accomplished the main business was opened with the presentation by the Virginia delegation of a series of resolutions providing for radical changes in the machinery of the Confederation. The princ.i.p.al features were the organization of a legislature of two houses proportional to population and with increased powers, the establishment of a separate executive, and the creation of an independent judiciary. This was in reality providing for a new government and was probably quite beyond the ideas of most of the members of the Convention, who had come there under instructions and with the expectation of revising the Articles of Confederation. But after the Virginia Plan had been the subject of discussion for two weeks so that the members had become a little more accustomed to its proposals, and after minor modifications had been made in the wording of the resolutions, the Convention was won over to its support. To check this drift toward radical change the opposition headed by New Jersey and Connecticut presented the so-called New Jersey Plan, which was in sharp contrast to the Virginia Resolutions, for it contemplated only a revision of the Articles of Confederation, but after a relatively short discussion, the Virginia Plan was adopted by a vote of seven States against four, with one State divided.

The dividing line between the two parties or groups in the Convention had quickly manifested itself. It proved to be the same line that had divided the Congress of the Confederation, the cleavage between the large States and the small States. The large States were in favor of representation in both houses of the legislature according to population, while the small States were opposed to any change which would deprive them of their equal vote in Congress, and though outvoted, they were not ready to yield. The Virginia Plan, and subsequently the New Jersey Plan, had first been considered in committee of the whole, and the question of "proportional representation," as it was then called, would accordingly come up again in formal session. Several weeks had been occupied by the proceedings, so that it was now near the end of June, and in general the discussions had been conducted with remarkably good temper. But it was evidently the calm before the storm. And the issue was finally joined when the question of representation in the two houses again came before the Convention. The majority of the States on the 29th of June once more voted in favor of proportional representation in the lower house. But on the question of the upper house, owing to a peculiar combination of circ.u.mstances-the absence of one delegate and another's change of vote causing the position of their respective States to be reversed or nullified-the vote on the 2d of July resulted in a tie. This brought the proceedings of the Convention to a standstill. A committee of one member from each State was appointed to consider the question, and, "that time might be given to the Committee, and to such as chose to attend to the celebration on the anniversary of Independence, the Convention adjourned" over the Fourth. The committee was chosen by ballot, and its composition was a clear indication that the small-State men had won their fight, and that a compromise would be effected.

It was during the debate upon this subject, when feeling was running high and when at times it seemed as if the Convention in default of any satisfactory solution would permanently adjourn, that Franklin proposed that "prayers imploring the a.s.sistance of Heaven... be held in this a.s.sembly every morning." Tradition relates that Hamilton opposed the motion. The members were evidently afraid of the impression which would be created outside, if it were suspected that there were dissensions in the Convention, and the motion was not put to a vote.

How far physical conditions may influence men in adopting any particular course of action it is impossible to say. But just when the discussion in the Convention reached a critical stage, just when the compromise presented by the committee was ready for adoption or rejection, the weather turned from unpleasantly hot to being comfortably cool. And, after some little time spent in the consideration Of details, on the 16th of July, the great compromise of the Const.i.tution was adopted. There was no other that compared with it in importance. Its most significant features were that in the upper house each State should have an equal vote and that in the lower house representation should be apportioned on the basis of population, while direct taxation should follow the same proportion. The further proviso that money bills should originate in the lower house and should not be amended in the upper house was regarded by some delegates as of considerable importance, though others did not think so, and eventually the restriction upon amendment by the upper house was dropped.

There has long been a prevailing belief that an essential feature of the great compromise was the counting of only three-fifths of the slaves in enumerating the population. This impression is quite erroneous. It was one of the details of the compromise, but it had been a feature of the revenue amendment of 1783, and it was generally accepted as a happy solution of the difficulty that slaves possessed the attributes both of persons and of property. It had been included both in the amended Virginia Plan and in the New Jersey Plan; and when it was embodied in the compromise it was described as "the ratio recommended by Congress in their resolutions of April 18, 1783." A few months later, in explaining the matter to the Ma.s.sachusetts convention, Rufus King said that, "This rule... was adopted because it was the language of all America." In reality the three-fifths rule was a mere incident in that part of the great compromise which declared that "representation should be proportioned according to direct taxation." As a further indication of the att.i.tude of the Convention upon this point, an amendment to have the blacks counted equally with the whites was voted down by eight States against two.

With the adoption of the great compromise a marked difference was noticeable in the att.i.tude of the delegates. Those from the large States were deeply disappointed at the result and they asked for an adjournment to give them time to consider what they should do. The next morning, before the Convention met, they held a meeting to determine upon their course of action. They were apparently afraid of taking the responsibility for breaking up the Convention, so they finally decided to let the proceedings go on and to see what might be the ultimate outcome. Rumors of these dissensions had reached the ears of the public, and it may have been to quiet any misgivings that the following inspired item appeared in several local papers: "So great is the unanimity, we hear, that prevails in the Convention, upon all great federal subjects, that it has been proposed to call the room in which they a.s.semble Unanimity Hall."

On the other hand the effect of this great compromise upon the delegates from the small States was distinctly favorable. Having obtained equal representation in one branch of the legislature, they now proceeded with much greater willingness to consider the strengthening of the central government. Many details were yet to be arranged, and sharp differences of opinion existed in connection with the executive as well as with the judiciary. But these difficulties were slight in comparison with those which they had already surmounted in the matter of representation. By the end of July the fifteen resolutions of the original Virginia Plan had been increased to twenty-three, with many enlargements and amendments, and the Convention had gone as far as it could effectively in determining the general principles upon which the government should be formed. There were too many members to work efficiently when it came to the actual framing of a const.i.tution with all the inevitable details that were necessary in setting up a machinery of government. Accordingly this task was turned over to a committee of five members who had already given evidence of their ability in this direction. Rutledge was made the chairman, and the others were Randolph, Gorham, Ellsworth, and Wilson. To give them time to perfect their work, on the 26th of July the Convention adjourned for ten days.

CHAPTER VII. FINIs.h.i.+NG THE WORK

Rutledge and his a.s.sociates on the committee of detail accomplished so much in such a short time that it seems as if they must have worked day and night. Their efforts marked a distinct stage in the development of the Const.i.tution. The committee left no records, but some of the members retained among their private papers drafts of the different stages of the report they were framing, and we are therefore able to surmise the way in which the committee proceeded. Of course the members were bound by the resolutions which had been adopted by the Convention and they held themselves closely to the general principles that had been laid down. But in the elaboration of details they seem to have begun with the Articles of Confederation and to have used all of that doc.u.ment that was consistent with the new plan of government. Then they made use of the New Jersey Plan, which had been put forward by the smaller States, and of a third plan which had been presented by Charles Pinckney; for the rest they drew largely upon the State Const.i.tutions. By a combination of these different sources the committee prepared a doc.u.ment bearing a close resemblance to the present Const.i.tution, although subjects were in a different order and in somewhat different proportions, which, at the end of ten days, by working on Sunday, they were able to present to the Convention. This draft of a const.i.tution was printed on seven folio pages with wide margins for notes and emendations.

The Convention resumed its sessions on Monday, the 6th of August, and for five weeks the report of the committee of detail was the subject of discussion. For five hours each day, and sometimes for six hours, the delegates kept persistently at their task. It was midsummer, and we read in the diary of one of the members that in all that period only five days were "cool." Item by item, line by line, the printed draft of the Const.i.tution was considered. It is not possible, nor is it necessary, to follow that work minutely; much of it was purely formal, and yet any one who has had experience with committee reports knows how much importance attaches to matters of phrasing. Just as the Virginia Plan was made more acceptable to the majority by changes in wording that seem to us insignificant, so modifications in phrasing slowly won support for the draft of the Const.i.tution.

The adoption of the great compromise, as we have seen, changed the whole spirit of the Convention. There was now an expectation on the part of the members that something definite was going to be accomplished, and all were concerned in making the result as good and as acceptable as possible. In other words, the spirit of compromise pervaded every action, and it is essential to remember this in considering what was accomplished.

One of the greatest weaknesses of the Confederation was the inefficiency of Congress. More than four pages, or three-fifths of the whole printed draft, were devoted to Congress and its powers. It is more significant, however, that in the new Const.i.tution the legislative powers of the Confederation were transferred bodily to the Congress of the United States, and that the powers added were few in number, although of course of the first importance. The Virginia Plan declared that, in addition to the powers under the Confederation, Congress should have the right "to legislate in all cases to which the separate States are incompetent." This statement was elaborated in the printed draft which granted specific powers of taxation, of regulating commerce, of establis.h.i.+ng a uniform rule of naturalization, and at the end of the enumeration of powers two clauses were added giving to Congress authority:

"To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;

"And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers."

On the other hand, it was necessary to place some limitations upon the power of Congress. A general restriction was laid by giving to the executive a right of veto, which might be overruled, however, by a two-thirds vote of both houses. Following British tradition yielding as it were to an inherited fear-these delegates in America were led to place the first restraint upon the exercise of congressional authority in connection with treason. The legislature of the United States was given the power to declare the punishment of treason; but treason itself was defined in the Const.i.tution, and it was further a.s.serted that a person could be convicted of treason only on the testimony of two witnesses, and that attainder of treason should not "work corruption of blood nor forfeiture except during the life of the person attainted." Arising more nearly out of their own experience was the prohibition of export taxes, of capitation taxes, and of the granting of t.i.tles of n.o.bility.

While the committee of detail was preparing its report, the Southern members of that committee had succeeded in getting a provision inserted that navigation acts could be pa.s.sed only by a two-thirds vote of both houses of the legislature. New England and the Middle States were strongly in favor of navigation acts for, if they could require all American products to be carried in American-built and American-owned vessels, they would give a great stimulus to the s.h.i.+p-building and commerce of the United States. They therefore wished to give Congress power in this matter on exactly the same terms that other powers were granted. The South, however, was opposed to this policy, for it wanted to encourage the cheapest method of s.h.i.+pping its raw materials. The South also wanted a larger number of slaves to meet its labor demands. To this need New England was not favorably disposed. To reconcile the conflicting interests of the two sections a compromise was finally reached. The requirement of a two-thirds vote of both houses for the pa.s.sing of navigation acts which the Southern members had obtained was abandoned, and on the other hand it was determined that Congress should not be allowed to interfere with the importation of slaves for twenty years. This, again, was one of the important and conspicuous compromises of the Const.i.tution. It is liable, however, to be misunderstood, for one should not read into the sentiment of the members of the Convention any of the later strong prejudice against slavery. There were some who objected on moral grounds to the recognition of slavery in the Const.i.tution, and that word was carefully avoided by referring to "such Persons as any States now existing shall think proper to admit." And there were some who were especially opposed to the encouragement of that inst.i.tution by permitting the slave trade, but the majority of the delegates regarded slavery as an accepted inst.i.tution, as a part of the established order, and public sentiment on the slave trade was not much more emphatic and positive than it is now on cruelty to animals. As Ellsworth said, "The morality or wisdom of slavery are considerations belonging to the States themselves," and the compromise was nothing more or less than a bargain between the sections.

The fundamental weakness of the Confederation was the inability of the Government to enforce its decrees, and in spite of the increased powers of Congress, even including the use of the militia "to execute the laws of the Union," it was not felt that this defect had been entirely remedied. Experience under the Confederation had taught men that something more was necessary in the direction of restricting the States in matters which might interfere with the working of the central Government. As in the case of the powers of Congress, the Articles of Confederation were again resorted to and the restrictions which had been placed upon the States in that doc.u.ment were now embodied in the Const.i.tution with modifications and additions. But the final touch was given in connection with the judiciary.

There was little in the printed draft and there is comparatively little in the Const.i.tution on the subject of the judiciary. A Federal Supreme Court was provided for, and Congress was permitted, but not required, to establish inferior courts; while the jurisdiction of these tribunals was determined upon the general principles that it should extend to cases arising under the Const.i.tution and laws of the United States, to treaties and cases in which foreigners and foreign countries were involved, and to controversies between States and citizens of different States. Nowhere in the doc.u.ment itself is there any word as to that great power which has been exercised by the Federal courts of declaring null and void laws or parts of laws that are regarded as in contravention to the Const.i.tution. There is little doubt that the more important men in the Convention, such as Wilson, Madison, Gouverneur Morris, King, Gerry, Mason, and Luther Martin, believed that the judiciary would exercise this power, even though it should not be specifically granted. The nearest approach to a declaration of this power is to be found in a paragraph that was inserted toward the end of the Const.i.tution. Oddly enough, this was a modification of a clause introduced by Luther Martin with quite another intent. As adopted it reads: "That this Const.i.tution and the Laws of the United States... and all Treaties... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Const.i.tution or Laws of any State to the Contrary notwithstanding." This paragraph may well be regarded as the keystone of the const.i.tutional arch of national power. Its significance lies in the fact that the Const.i.tution is regarded not as a treaty nor as an agreement between States, but as a law; and while its enforcement is backed by armed power, it is a law enforceable in the courts.

One whole division of the Const.i.tution has been as yet barely referred to, and it not only presented one of the most perplexing problems which the Convention faced but one of the last to be settled-that providing for an executive. There was a general agreement in the Convention that there should be a separate executive. The opinion also developed quite early that a single executive was better than a plural body, but that was as far as the members could go with any degree of unanimity. At the outset they seemed to have thought that the executive would be dependent upon the legislature, appointed by that body, and therefore more or less subject to its control. But in the course of the proceedings the tendency was to grant greater and greater powers to the executive; in other words, he was becoming a figure of importance. No such office as that of President of the United States was then in existence. It was a new position which they were creating. We have become so accustomed to it that it is difficult for us to hark back to the time when there was no such officer and to realize the difficulties and the fears of the men who were responsible for creating that office.

The presidency was obviously modeled after the governors.h.i.+p of the individual States, and yet the inc.u.mbent was to be at the head of the Thirteen States. Rufus King is frequently quoted to the effect that the men of that time had been accustomed to considering themselves subjects of the British king. Even at the time of the Convention there is good evidence to show that some of the members were still agitating the desirability of establis.h.i.+ng a monarchy in the United States. It was a common rumor that a son of George III was to be invited to come over, and there is reason to believe that only a few months before the Convention met Prince Henry of Prussia was approached by prominent people in this country to see if he could be induced to accept the heads.h.i.+p of the States, that is, to become the king of the United States. The members of the Convention evidently thought that they were establis.h.i.+ng something like a monarchy. As Randolph said, the people would see "the form at least of a little monarch," and they did not want him to have despotic powers. When the sessions were over, a lady asked Franklin: "Well, Doctor, what have we got, a republic or a monarchy?" "A republic," replied the doctor, "if you can keep it."