The Constitution of the United States Part 2

"What a constancy, what a magnanimity, what a surprising persistence against fortune!... Was.h.i.+ngton, the chief of a nation in arms, doing battle with distracted parties; calm in the midst of conspiracy; serene against the open foe before him and the darker enemies at his back; Was.h.i.+ngton, inspiring order and spirit into troops hungry and in rags; stung by ingrat.i.tude, but betraying no anger, and every ready to forgive; in defeat invincible, magnanimous in conquest and never so sublime as on that day when he laid down his victorious sword and sought his n.o.ble retirement-here, indeed, is a character to admire and revere; a life without a stain, a fame without a flaw."

A year after the Articles of Confederation had been adopted, the war came to an end by a preliminary treaty on November 30, 1782.

Now follows the least known chapter in American history. It was a period of travail, of which the Const.i.tution of the United States and the present American nation were born. The government slowly succ.u.mbed from its own weakness to its inevitable death. Only the shreds and patches of authority were left. Gradually the union fell apart. Of the Continental Congress only fifteen members, representing seven colonies, remained to transact the affairs of the new nation. The army, which previously to the termination of the war had dissolved by the hundreds, was now unpaid and in a stale of revolt. Measure after measure was proposed in Congress to raise money to pay the interest on the bonded indebtedness, which was in arrears, and to provide funds for the most necessary expenses, but these failed, in Congress for the want of the necessary nine votes or, if enacted, the States treated the requisitions with indifference. The currency of the United States had fallen almost as low as the Austrian kronen, and men derisively plastered the walls of their houses with the worthless paper of the Continental Congress. Adequate authority no longer remained to carry out the terms of the treaties with England and France, and they were nullified by the failure of the infant nation to comply with its own obligations and the consequent refusal of the other contracting parties to comply with theirs. The government made a call upon the States to raise $8,000,000 for the most vital needs, but only $400,000 was actually received. Then Congress asked the States to vest in it the power to levy a tax of five per cent, on imports for a limited period, but, after waiting two years for the action of the States, less than nine concurred. The States were then asked to pledge their own internal revenue for twenty-five years to meet the national indebtedness, but this could only be done by unanimous consent, and while twelve States concurred, Rhode Island refused and the measure was defeated. It was again the infinite folly of the liberum veto which, prior to the great part.i.tion, condemned Poland to chronic anarchy.

The impotence of the new government, which was still sitting in Philadelphia, can be measured by the fact that on June 9, 1783, word came that eighty soldiers were on their way to Philadelphia to demand relief. They stacked their arms in front of the State House, where the Congress was then sitting, and refused to disband, when requested by Col. Alexander Hamilton, as the representative of the Congress, to do so. When Congress appealed to the government of Pennsylvania for protection, it was advised that the Pennsylvania militia was likewise insubordinate. The Congress then hastily fled by night and became a fugitive.

The impotence of the Confederation can be measured by the fact that in the last fourteen months of its existence its receipts were less than $400,000, while the interest on the foreign debt alone was over $2,400,000, and the interest on the internal debt was five-fold greater.

In the absence of any government and in the period of general prostration it was not unnatural that the spirit of Bolshevism grew with alarming rapidity. It even permeated the officers of the Army. In March, 1783, an anonymous communication was sent to Was.h.i.+ngton's officers to meet in secret conference to take some action, possibly to overthrow the government. A copy fell into Was.h.i.+ngton's hands and, while he forbade the a.s.semblage of the officers under the anonymous call, he himself directed the officers to a.s.semble. He unexpectedly appeared at the meeting and, being no speaker, he had reduced his appeal to writing. As he adjusted his spectacles to read it, he pathetically said: "I have not only grown gray but blind in your service." He then made a touching appeal to them not to increase by example the spreading spirit of revolt. The very sight of their old commander turned the hearts of the revolting element and the officers remained loyal to their n.o.ble leader.

Where the spirit of disaffection was thus found in high places it naturally prevailed more widely among the ma.s.ses who had been driven to frenzy by their sufferings. This culminated in a revolt in Ma.s.sachusetts under the leaders.h.i.+p of an old soldier named Shays, and it spread with such rapidity that not only did one-fifth of the people join in attempting to overthrow the remnant of established authority in Ma.s.sachusetts, but it rapidly spread to other States. The offices of government and the courthouses were seized, the collection of debts was forbidden, and private property was forcibly appropriated to meet the common needs.

Chaos had come again. It filled Was.h.i.+ngton's heart with disgust and despair. After surrendering his commission to the pitiful remnant of the government he had retired to Mount Vernon, and for a time declined to act further as the leader of his people. Thus, in October, 1785, he wrote James Warren, of Ma.s.sachusetts:

"The war, as you have very justly observed, has terminated most advantageously for America, and a fair field is presented to our view; but I confess to you freely, my dear sir, that I do not think we possess wisdom or justice enough to cultivate it properly. Illiberality, jealousy, and local policy mix too much in all our public councils for good government of the union. In a word, the Confederation appears to me to be little more than a shadow without the substance, and Congress a nugatory body, their ordinances being little attended to.... By such policy as this the wheels of government are clogged, and our brightest prospects, and that high expectation which was entertained of us by the wondering world, are turned into astonishment; and, from the high ground on which we stood, we are descending into the vale of confusion and darkness."

Again he wrote to George Mason:

"I have seen without despondency, even for a moment, the hours which America has styled its gloomy ones, but I have beheld no day since the commencement of hostilities that I thought our liberties in such imminent danger as at present. Indeed, we are verging so fast to destruction that I am feeling that sense to which I have been a stranger until within these three months."

Again in 1786 he writes:

"I think often of our situation, and view it with concern. From the high ground we stood upon, from the plain path which invited our footsteps, to be so fallen, so lost, is mortifying; but everything of virtue has, in a degree, taken its departure from our land.... What, gracious G.o.d, is man that there should be such inconsistency, and perfidiousness in his conduct! It was but the other day that we were shedding our blood to obtain the Const.i.tutions under which we now live, and now we are unsheathing our swords to overturn them. The thing is so unaccountable that I hardly know how to realize it or to persuade myself that I am not under an illusion of a dream."

It was, however, the darkest hour before the dawn, and again it was Was.h.i.+ngton who became his country's saviour. In 1785, some commissioners from the States of Virginia and Maryland visited Mount Vernon to pay their respects to the well-loved commander. After conferring with him upon the chaos of the times, they decided to issue a call for a general conference of the representatives of the States to be held on September 11, 1786, at Annapolis, Maryland, to discuss how far the States themselves could agree on common regulations of commerce. At the appointed time the delegates a.s.sembled from Virginia, Pennsylvania, Delaware, New York and New Jersey, and finding themselves too few in number to achieve the great objective, the convention contented itself by issuing another call, drafted by Alexander Hamilton, then under thirty years of age, to all the States to send delegates to a convention to be held in Philadelphia on the second Monday in May, 1787, "to take into consideration the situation of the United States, to devise such further provisions as should appear to them necessary to render the Const.i.tution of the Federal Government adequate to the exigencies of the Union."

The dying Congress tardily approved of this suggestion, but finally, on January 21, 1787, grudgingly adopted a resolution that- "It is expedient that on the second Monday in May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia 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 in Congress and conformed to by the States, render the Federal Const.i.tution adequate to the exigency of the government and the preservation of the union."

It will be noted by the italicized portions of the resolution that this impotent body thus vainly attempted to cling to the shadow of its vanished authority by stating that the proposed const.i.tutional convention should merely revise the worthless Articles of Confederation and that such amendments should not have validity until adopted by Congress as well as by the people of the several States. How this mandate was disregarded and how the convention was formed, and proceeded to create a new government with a new Const.i.tution, and how it achieved its mighty work, will be the subject of the next lecture.

Antic.i.p.ating the masterly ability with which a seemingly impotent and dying nation plucked from the nettle of danger the flower of safety, let me conclude this first address by quoting the words of de Tocqueville, in his remarkable work Democracy in America, where he says:

"The Federal Government, condemned to impotence by its Const.i.tution and no longer sustained by the presence of common danger ... was already on the verge of destruction when it officially proclaimed its inability to conduct the government and appealed to the const.i.tuent authority of the nation.... It is a novelty in the history of a society to see a calm and scrutinizing eye turned upon itself, when apprised by the legislature that the wheels of government are stopped; to see it carefully examine the extent of the field and patiently wait for two years until a remedy was discovered, which it voluntarily adopted, without having ever wrung a tear or a drop of blood from mankind."

II. The Great Convention

Now follows a notable and yet little known scene in the drama of history. It reveals a people who, without shedding a drop of blood, calmly and deliberately abolished one government, subst.i.tuted another, and erected it upon foundations which have hitherto proved enduring. Even the superstructure slowly erected upon these foundations has suffered little change in the most changing period of the world's history, and until recently its additions, few in number, have varied little from the plans of the original architects. The Const.i.tution is to-day, not a ruined Parthenon, but rather as one of those Gothic masterpieces, against which the storms of pa.s.sionate strife have beaten in vain. The foundations were laid at a time when disorder was rampant and anarchy widely prevalent. As I have already shown in my first lecture, credit was gone, business paralysed, lawlessness triumphant, and not only between cla.s.s and cla.s.s, but between State and State, there were acute controversies and an alarming disunity of spirit. To weld thirteen jealous and discordant States, demoralized by an exhausting war, into a unified and efficient nation against their wills, was a seemingly impossible task. Frederick the so-called Great had said that a federal union of widely scattered communities was impossible. Its final accomplishment has blinded the world to the essential difficulty of the problem.

The time was May 25, 1787; the place, the State House in Philadelphia, a little town of not more than 20,000 people, and, at that time, as remote, measured by the facilities of communication, to the centres of civilization as is now Vladivostok.

The dramatis personae in this drama, though few in numbers, were, however, worthy of the task.

Seventy-two had originally been offered or given credentials, for each State was permitted to send as many delegates as it pleased, inasmuch as the States were to vote in the convention as units. Of these, the greatest actual attendance was fifty-five, and at the end of the convention a saving remnant of only thirty-nine remained to finish a work which was to immortalize its partic.i.p.ants.

While this notable group of men contained a few merchants, financiers, farmers, doctors, educators, and soldiers, of the remainder, at least thirty-one were lawyers, and of these many had been justices of the local courts and executive officers of the commonwealths. Four had studied in the Inner Temple, at least five in the Middle Temple, one at Oxford under the tuition of Blackstone and two in Scottish Universities. Few of them were inexperienced in public affairs, for of the original fifty-five members, thirty-nine had been members of the first or second Continental Congresses, and eight had already helped to frame the const.i.tutions of their respective States. At least twenty-two were college graduates, of whom nine were graduates of Princeton, three of Yale, two of Harvard, four of William and Mary, and one each from the Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already enjoyed world-wide fame, notably Doctor Franklin, possibly the most versatile genius of the eighteenth century and universally known and honoured as a scientist, philosopher, and diplomat, and George Was.h.i.+ngton, whose fame, even at that day, had filled the world with the n.o.ble purity of his character.

It was a convention of comparatively young men, the average age being little above forty. Franklin was the oldest member, being then eighty-one; Dayton, the youngest, being twenty-seven. With the exception of Franklin and Was.h.i.+ngton, most of the potential personalities in the convention were under forty. Thus, James Madison, who contributed so largely to the plan that he is sometimes called "The Father of the Const.i.tution," was thirty-six. Charles Pinckney, who, unaided, submitted the first concrete draft of the Const.i.tution, was only twenty-nine, and Alexander Hamilton, who was destined to take a leading part in securing its ratification by his powerful oratory and his very able commentaries in the Federalist papers, was only thirty.

Above all they were a group of gentlemen of substance and honour, who could debate for four months during the depressing weather of a hot summer without losing their tempers, except momentarily-and this despite vital differences-and who showed that genius for toleration and reconciliation of conflicting views inspired by a common fidelity to a great objective that is the highest mark of statesmans.h.i.+p. They represented the spirit of representative government at its best in avoiding the cowardice of time-servers and the low cunning of demagogues. All apparently were inspired by a fine spirit of self-effacement. Selfish ambition was conspicuously absent. They differed, at times heatedly, but always as gentlemen of candour and honour. The very secrecy of their deliberations, of which I shall presently speak, is ample proof how indifferent they were to popular applause and the civium ardor prava jubentium.

The convention had been slow in a.s.sembling. Ample notice had been given that it would convene on May 13, 1787, but when that day arrived a mere handful of the delegates, less than a quorum, had a.s.sembled.

The Virginia delegation, six in number, and forming probably the ablest delegation from any State, arriving in time, and failing to find a quorum then a.s.sembled, employed the period of waiting in submitting to the Pennsylvania delegation the outlines of a plan for the new Const.i.tution. The plan was largely the work of James Madison, and how long it had been in preparation cannot be definitely stated. It is clear that four years before a Philadelphia merchant, one Peletiah Webster, had published a brochure proposing a scheme of dual sovereignty, under which the citizens would owe a double allegiance-one to the const.i.tuent States within the sphere of their reserved powers, and one to a federated government within the sphere of its delegated powers. Leagues of States had often existed, but a league which, within a prescribed sphere, would have direct authority over the citizens of the const.i.tuent States, without, however, abolis.h.i.+ng the authority of such States as to their reserved sphere of power, was a novel theory. How far the Virginia project had been influenced by Webster's suggestion is not clear, but it is certain that before the convention met Pennsylvania and Virginia, two of the most powerful States, were committed to it.

The suggestion was a radical one, for the States, with few exceptions, were chiefly insistent upon the preservation of their sovereignty, and while they were willing to amend the Articles of Confederation by giving fuller authority to the central government, such as it was, the suggestion of subordinating the States to a new sovereign power, whose authority within circ.u.mscribed limits was to be supreme, was opposed to all their conventions and traditions. Was.h.i.+ngton, however, had warmly welcomed the creation of a strong central government, and his correspondence with the leading men of the colonies for some years previously had been burdened with arguments to convince them that a mere league of States would not suffice to create a stable nation. To George Was.h.i.+ngton, soldier and statesman, is due above all men the ideal of a federated union, for without his influence-that of a n.o.ble and unselfish leader-the great result would probably never have been secured. While still waiting for the convention, to meet, and while discussing what was expedient and practicable when they did meet, Was.h.i.+ngton one day said to a group of delegates, who were considering the acute nature of the crisis:

"It is too probable that no plan that we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair. The event is in the hand of G.o.d."

n.o.ble words, fit to be written in letters of gold over the portal of every legislature of the world, and it was in this spirit that the convention finally convened on May 25th, 1787.

When the delegates from nine States had a.s.sembled, Was.h.i.+ngton was unanimously elected the presiding officer of the convention. It began by adopting rules of order, and the most significant of these was the provision for secrecy. No copy should be taken of any entry on the Journal, or even permission given to inspect it, without leave of the convention, and "nothing spoken in the house be printed or otherwise published or communicated without leave." The yeas and nays should not be recorded. The rule of secrecy was enlarged by an unwritten understanding that, even when the convention had adjourned, no disclosure should be made of its proceedings during the life of its members. When after nearly four months, the convention adjourned, the secret had been kept, and no one knew even the concrete result of its deliberations until the Const.i.tution itself, and nothing else, was offered to the approval of the people. The high-way, upon which the State House fronted, was covered with earth, to deaden the noise of traffic, and sentries were posted at every means of ingress and egress, to prevent any intrusion upon the privacy of the convention. The members were not photographed daily for the pictorial Press, nor did any cinema register their entrance into the simple colonial hall where they were to meet. Notwithstanding this limitation-for no present-day conference or a.s.sembly can proceed with its labours until its members are photographed for the curiosity of the public-these simple-minded gentlemen-less intent upon their appearance than their task-were to accomplish a work of enduring importance.

The extreme care which was taken to preserve this secrecy inviolate, and its purpose, were indicated in an incident handed down by tradition.

One of the members dropped a copy of a proposition then before the convention for consideration, and it was found by another of the delegates and handed to General Was.h.i.+ngton. At the conclusion of the session, Was.h.i.+ngton arose and sternly reprimanded the member for his carelessness by saying:

"I must entreat gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. I know not whose paper it is, but there it is [throwing it down on the table]. Let him who owns it, take it."

He then bowed, picked up his hat and left the room with such evidences of annoyance that, like school-children, no delegate was willing to admit the owners.h.i.+p of the paper.

The thought suggests itself: How different the result at Versailles and Genoa might have been had there been the same reasonable provisions for discussion and action uninfluenced by too premature public comment of the day! In these days, when representative government has degenerated into government by a fleeting public opinion, the price we pay for such government by, for and of the Press, is too often the inability of representatives to do what they deem wise and just.

At the close of the convention its records were committed into the keeping of Was.h.i.+ngton, with instructions to "retain the journal and other papers, subject to order of Congress, if ever formed under the Const.i.tution."

Even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year 1819, or thirty-two years after the close of the convention. Thus, the American people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze.

The members of the convention kept its secrets inviolate for many years. With few exceptions, the great secrets of the convention died with them. Only one, James Madison, left a comprehensive statement of the more formal proceedings. With this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. The first of the number to break the pledge of secrecy was Robert Yates, Chief Justice of New York, who, in 1821, published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the 5th of July.

The world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, James Madison, regularly attended the sessions and kept notes from day to day of the debates. While he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. He jealously guarded his Journal of the Convention until his death. Its very existence was known to few. He died in 1836, and four years later the government purchased the ma.n.u.script from his widow. Then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. Fifty-three years after the close of the convention, and when nearly every one of its partic.i.p.ants were dead, Madison's Journal was first published.

When was a great secret better kept? Grateful as posterity must be for this inestimable gift of great human enterprise, yet even Madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world.

Two or three of the speeches which Madison gives in his Journal are complete, for when Doctor Franklin spoke he reduced his remarks to writing and gave a copy to Madison, but of the other speeches only a fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains.

Without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. I recognize that public opinion-often temporarily uninformed but in the end generally right-does often save the democracies of the world from the selfish ends of self-seeking and misguided leaders.h.i.+p; but, given n.o.ble and wise representatives, they work best when least influenced by the fleeting pa.s.sions of the day.

It is evident that if the framers of the Const.i.tution had met, as similar conventions have within recent years met at Versailles and Genoa, with the world as their gallery and with the representatives of the Press as an integral part of the conference, they would have accomplished nothing. The probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. It may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a const.i.tutional convention would, I fear, prove a witches' cauldron of cla.s.s legislation and demagoguery. Is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? Again the words of Was.h.i.+ngton suggest themselves: "If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair."

Working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpa.s.sing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man.

The rules of order and the nature of the proceedings thus determined, the convention opened by an address by Mr. Randolph of Virginia, in which he submitted, in the form of fifteen points-nearly the number of the fatal fourteen-the outlines for a new government. He himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of States) but "a strong consolidated union." Upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. The plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the States. This legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation," with power "to negative all laws pa.s.sed by the several States contravening in the opinion of the national legislature the Articles of the Union."

A national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." This marked an immense advance over the Articles of Confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the States, and could only impose duties upon the States themselves by the concurrence of nine of the thirteen.

Hardly had Mr. Randolph submitted the so-called Virginia plan when Charles Pinckney, of South Carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the House a draft of the future federal government. Curiously enough, it did not differ in principle from the Virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. Indeed, Pinckney's plan was the future Const.i.tution of the United States in embryo; and when it is read and contrasted with the doc.u.ment which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have antic.i.p.ated and reduced to a concrete and effective form many of the most novel features of the Federal Government. As the only copy of Pinckney's plan was furnished years afterwards to Madison for his journal, it is possible that some of its wisdom was of the post factum variety.

Having received the two plans, the convention then went, on May 30, into a committee of the whole to consider the fifteen propositions in the Virginia plan seriatim. They wisely concluded to determine abstract ideas first and concrete forms later. Apparently for the time being little attention was paid to Pinckney's plan, and this may have been due to the hostile att.i.tude of the older members of the convention to the presumption of his youth.