An economic interpretation of the Constitution of the United States

by Charles A. Beard

THE ECONOMICS OF INTERNATIONAL POLITICS

The authors of The Federalist carry over into the field of international politics the concept of economic antagonisms which lie at the basis of their system of domestic politics. Modern wars spring primarily out of commercial rivalry, although the ambitions of princes have often been a source of international conflict. “Has commerce hitherto done anything more than change the objects of war?” asks Hamilton. “Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other?”[^[429]] Let history answer. Carthage, a commercial republic, was an aggressor in a war that ended in her destruction. The furious contests of Holland and England were over the dominion of the sea. Commerce has been for ages the predominant pursuit of England, and she has been constantly engaged in wars. Even the Hapsburg-Bourbon wars have in a large measure grown out of commercial considerations.

In this world-wide and age-long conflict of nations for commercial advantages, the United States cannot expect to become a non-resistant, an idle spectator. Even were pacific ideals to dominate American policy, she could not overcome the scruples of her ambitious rivals. In union, therefore, is strength against aggression and in support of offensive operations. Moreover, the Union will be better able to settle disputes amicably because of the greater show of power which it can make. “Acknowledgements, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a state or a confederacy of little consideration or power.”[^[430]]

Turning from the material causes of foreign wars the authors of The Federalist examine the possible sources of danger from domestic discord among the states, regarded as independent sovereignties. And how may such domestic discord arise? The North will probably grow strong and formidable and be tempted to despoil the South: nor “does it appear to be a rash conjecture,” says Jay, “that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.”[^[431]]

Then the apple of discord may be thrown among the states by foreign countries if several confederacies take the place of union. And what is this apple of discord? Each of the proposed confederacies, says Jay, “would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different.” Treaties are subject to the law of greatest economic pressure. “Different commercial concerns,” he continues, “must create different interests, and of course different degrees of political attachment to and connection with different foreign nations.”[^[432]] The degrees of political attachment also follow the law of greatest economic pressure; and if foreign nations come to blows among themselves, their allies in America are likely to be drawn into the conflict. Thus domestic discord may arise among the states indirectly through their material connections with other countries.

But internecine warfare will more probably arise from causes operating within the states; and what may be the real sources of such conflict? asks Hamilton.[^[433]] They are numerous: lust for power and dominion, the desire for equality and safety, the ambitions of leaders. Has it not invariably been found, he adds, “that momentary passions, and immediate interests have a more active and imperious control over human conduct than general and remote considerations of policy, utility, or justice?... Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?”

Of course such acute observers as the authors of The Federalist do not omit to remark that the personal ambitions of monarchs have been a cause of wars, and the passions of men for leadership have been a source of domestic insurrections. But they are quick to add that the aggrandizement and support of their particular families are among the motives that have led monarchs to undertake wars of conquest;[^[434]] and as to personal element in domestic insurrections, Hamilton expresses a doubt whether Massachusetts would recently have been plunged into civil war “if Shays had not been a desperate debtor.”[^[435]]

Turning from the question as to the extent of the economic motive in the personal element, Hamilton makes an inquiry into the more probable sources of wars among the states in case a firmer union, endowed with adequate powers, is not established. These he enumerates:[^[436]]

1. “Territorial disputes have at all times been found one of the most fertile sources of hostility among nations.” The several states have an interest in the Western Territories, and “to reason from the past to the future, we shall have good ground to apprehend that the sword would sometimes be appealed to as the arbiter of their differences.”

2. “The competitions of commerce would be another fruitful source of contention.” Each state will pursue a policy conducive to its own advantage, and “the spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens.” The economic motive will thus probably override all considerations of interstate comity and all considerations of international law. But that is not all; says Hamilton, in italics, “We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest.” Commerce will have little respect for the right of other peoples to protect their interests, and it will stigmatize as an “injury” anything which blocks its enterprise.

3. “The public debt of the Union would be a further cause of collision between the separate states or confederacies.” Some states would oppose paying the debt. Why? Because they are “less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question.” But other states, “a numerous body of whose citizens are creditors to the public beyond the proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision.” In other words, citizens who had nothing at stake would be indifferent, and those who had something to lose would clamor. Foreign powers also might intervene, and the “double contingency of external invasion and internal contention” would be hazarded.

4. “Laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility.” Had there not been plenty of evidence to show that state legislatures, if unrestrained by some higher authority, would attack private rights in property? And had there not been a spirit of retaliation also? “We reasonably infer that in similar cases, under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice.”

These, then, are the four leading sources of probable conflict among the states if not united into a firm union: territory, commerce, the national debt, and violations of contractual rights in property—all as severely economic as could well be imagined.

To carry the theory of the economic interpretation of the Constitution out into its ultimate details would require a monumental commentary, such as lies completely beyond the scope of this volume. But enough has been said to show that the concept of the Constitution as a piece of abstract legislation reflecting no group interests and recognizing no economic antagonisms is entirely false. It was an economic document drawn with superb skill by men whose property interests were immediately at stake; and as such it appealed directly and unerringly to identical interests in the country at large.

CHAPTER VII
THE POLITICAL DOCTRINES OF THE MEMBERS OF THE CONVENTION

Having examined the economic implications of the Constitution in the light of the greatest of all commentaries, The Federalist, it is now interesting to inquire whether the members of the Convention at large entertained substantially identical views as to the political science of the system. There are several difficulties in the way of such an investigation. Not all of the delegates, indeed not all of the most influential, were speech makers or writers or philosophers. As intensely practical men they were concerned with tangible results, not with the manner in which political scientists might view the details of their operations. There is, accordingly, a considerable danger of attempting too much in making generalizations, and to obviate this as far as possible, the method of taking the members in alphabetical order is adopted, and the evidence of the views entertained by each is fully documented.[^[437]]

The leaders in politics and political philosophy in the eighteenth century were not far removed from that frank recognition of class rights which characterized English society, and they were not under the necessity of obscuring—at least to the same extent as modern partisan writers—the essential economic antagonisms featuring in law and constitution making. Their clarity of thought was greatly facilitated by the disfranchisement of the propertyless, which made it unnecessary for political writers to address themselves to the proletariat and to explain dominant group interests in such a manner as to make them appear in the garb of “public policy.”

There does not appear, of course, in the writings of American political scientists in the eighteenth century, that sharp recognition of class rights which characterizes the feudal legists, because within the propertied interests politically represented in the government, there were divisions which had to be glossed over; and there were also mutterings of unrest on the part of the disfranchised which later broke out in the storm that swept away the property qualifications on voters and introduced political equalitarianism. Under these circumstances the supporters of the Constitution had to be somewhat circumspect in the expression of their views; but, happily for science, the proceedings at Philadelphia during the drafting of the Constitution were secret, and they were able to discuss with utmost frankness the actual politico-economic results which they desired to reach. Fortunately, also, fragmentary reports of these proceedings have come down to us, and have been put in a definitive form by Professor Farrand.

Abraham Baldwin, of Georgia, did not indulge in any lengthy disquisitions on government in the Convention, and his literary remains are apparently very meagre. However, his view that the Senate of the United States ought to represent property came out in the debate on June 29, over a motion by Ellsworth to the effect that the “rule of suffrage in the second branch be the same as that established by the Articles of Confederation.” Baldwin immediately opposed the proposition, saying, “He thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their constituents, and to the principles on which the senate of Massachusetts was constituted.”[^[438]] At the time the senate of that commonwealth rested upon special freehold and personalty qualifications,[^[439]] and the members were apportioned among the several districts on the basis of the amount of taxes paid by each. It is thus apparent that Baldwin wished the Senate of the new government to be based frankly upon property.

Gunning Bedford, of Delaware, did not participate extensively in the debates of the Convention, but it seems from the character of the few remarks that he made that he favored a more democratic form than was finally adopted, although he signed the Constitution. This inference is drawn from a brief notice of his objection to the establishment of a council of revision composed of the executive and a certain number of the judiciary to exercise a sort of censorship over the acts of Congress. Madison records as follows: “Mr. Bedford was opposed to every check on the Legislative, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the People were the best judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produce a sufficient controul within the Legislature itself.”[^[440]]

Jacob Broom was among those who wished to “lessen the dependence of the general government on the people,” to use Jefferson’s phrase, by lengthening the terms of public officers. He seconded Read’s motion to increase the term of Senators to nine years;[^[441]] he opposed the election of the executive by popular vote, and supported Luther Martin’s resolution in favor of election by electors appointed by the legislatures of the several states;[^[442]] he wished to give life tenure to the executive, that is, during good behavior,[^[443]] and he favored the suggestion that Congress should be given a negative over state legislatures.[^[444]] Broom seldom spoke in the Convention, but there is no doubt that he believed in a restricted and well “balanced” democracy.

Pierce Butler, of South Carolina, on more than one occasion urged the desirability of making property at least one of the elements in the distribution of representation. On June 6, when Charles Pinckney moved that the lower house of the national legislature should be chosen by the state legislatures and not by the people, Butler said: “I am against determining the mode of election until the ratio of representation is fixed—if that proceeds on a principle favorable to wealth as well as numbers of free inhabitants, I am content to unite with Delaware (Mr. Read) in abolishing the state legislatures and becoming one nation instead of a confederation of republics.”[^[445]] In connection with a discussion of the Senate, “he urged that the second branch ought to represent the states according to their property.”[^[446]] Later in the sessions of the Convention he again “warmly urged the justice and necessity of regarding wealth in the apportionment of representation.”[^[447]] He was also particularly solicitous about slave property, and he declared that “the security which the southern states want is that their negroes may not be taken from them.”[^[448]]

Daniel Carroll favored the popular election of the executive, but he advocated a three-fourths vote in Congress to overcome the executive veto. Speaking on this point, “He remarked that as a majority was now to be the quorum, seventeen in the larger and eight in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws.”[^[449]] Carroll did not indulge in any philosophic reflections in the Convention so that his “political science,” if he had worked out any definite system, is not apparent in the records.

George Clymer entertained the notions of government which were common to the Federalists of his time. He held that “a representative of the people is appointed to think for and not with his constituents”;[^[450]] and invariably, during the course of his career, he “showed a total disregard to the opinions of his constituents when opposed to the matured decisions of his own mind.” It was on these principles that he “warmly opposed the proposition introducing a clause in the Constitution which conferred upon the people the unalienable right of instructing their representatives.”[^[451]]

W. R. Davie, although he is reputed to have been an accomplished orator and profound student, does not figure extensively in Madison’s meagre records. At no point does he expound any philosophy of government. His views were always practical. On the proposition to count slaves in apportioning representation, he threw down the gauntlet to the Convention, and declared that if the rate was not at least three-fifths, North Carolina would not federate.[^[452]] As to the basis of government Davie “seemed to think that wealth or property ought to be represented in the second branch; and numbers in the first branch.”[^[453]]

Davie fully understood the significance of the obligation of contract clause which was designed as a check on the propensities of popular legislatures to assault private rights in property, particularly personalty. Speaking in the convention of North Carolina on this clause, he said: “That section is the best in the Constitution. It is founded on the strongest principles of justice. It is a section, in short, which I thought would have endeared the Constitution to this country.”[^[454]] Davie undoubtedly understood and approved the doctrines of balanced classes in the government, as expounded in Adams’ Defence of American Constitutions.[^[455]]

At no time does Davie appear to have courted popular favor in his native state, for a writer speaking of his candidacy for the legislature in 1798 says: “The ‘true Whigs,’ as they styled themselves, dined together under the oaks and toasted Mr. Jefferson. The other party, who were called ‘aristocrats,’ ate and drank in the house on entirely different principles. General Davie dined in the house with the ‘aristocrats.’ The ‘true Whigs’ took offence at this and resolved to oppose his selection, and it was only with much address that they were kept quiet.... If any person had had the impudence to dispute the election, General Davie would certainly not have been returned. The rabble, which in all places is the majority, would have voted against him.”[^[456]]

John Dickinson, of Delaware, frankly joined that minority which was outspoken in its belief in a monarchy—an action that comported with his refusal to sign the Declaration of Independence and his reluctance to embark upon the stormy sea of Revolution. At the very opening of the Convention, on June 2, he expressed his preference for a regal government, although he admitted that the existing state of affairs would not permit its establishment in America. Madison records him as saying: “A limited Monarchy he considered as one of the best Governments in the world. It was not certain that the same blessings were derivable from any other form. It was certain that equal blessings had never yet been derived from any of the republican form. A limited monarchy, however, was out of the question.”[^[457]]

Dickinson was also among the members of the Convention who wished to establish a property qualification for voters because he thought no other foundation for government would be secure. In the debate on this subject on August 7, according to Madison’s notes: “Mr. Dickinson had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence agst. the dangerous influence of those multitudes without property & without principle, with which our Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion chimerical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it.”[^[458]]

According to King’s notes: “Dickinson—It is said yr. restraining by ye Constitution the rights of Election to Freeholders, is a step towards aristocracy—is this true, No.—we are safe by trusting the owners of the soil—the Owners of the Country—it will not be unpopular—because the Freeholders are the most numerous at this Time—The Danger to Free Governments has not been from Freeholders, but those who are not Freeholders—there is no Danger—because our Laws favor the Division of property—The Freehold will be parcelled among all the worthy men in the State—The Merchants & Mechanicks are safe—They may become Freeholders besides they are represented in ye State Legislatures, which elect the Senate of the U.S.”[^[459]]

No member of the Convention distrusted anything savoring of “levelling democracy” more than Oliver Ellsworth. Later as Chief Justice he denounced from the bench Jefferson and the French party as “the apostles of anarchy, bloodshed, and atheism.”[^[460]] In the Convention, he opposed the popular election of the President[^[461]] and favored associating the judges with the executive in the exercise of a veto power over acts of Congress.[^[462]] He believed in the restriction of the suffrage to those who paid taxes.[^[463]] He was a warm advocate of judicial control, in general, and thoroughly understood the political significance of the system.[^[464]]

Thomas Fitzsimons, the wealthy merchant and stockbroker from Pennsylvania, was, after his kind, not a loquacious man, but rather a man of action—a practical man; and the records of the Convention contain no lengthy speech by him. When Gouverneur Morris, on August 7, proposed to restrain the right to vote to freeholders, Fitzsimons seconded the motion, apparently without saying anything on the point.[^[465]] While he thus sympathized with the movement to set the Constitution frankly on a property basis, Fitzsimons was naturally more interested in such matters as protection to manufactures and harbor improvements.[^[466]]

Benjamin Franklin, who at the time of the Convention was so advanced in years as to be of little real weight in the formation of the Constitution, seems to have entertained a more hopeful view of democracy than any other member of that famous group. He favored a single chambered legislature,[^[467]] opposed an absolute veto in the executive,[^[468]] and resisted the attempt to place property qualifications on the suffrage.[^[469]] He signed the Constitution when it was finished, but he was accounted by his contemporaries among the doubters, and was put forward by the opponents of ratification in Pennsylvania as a candidate for the state convention, but was defeated.[^[470]]

Elbridge Gerry, of Massachusetts, participated extensively in the debates of the Convention, but his general view of government was doubtless stated in his speech on May 31, when he expressed himself as not liking the election of members of the lower house by popular vote. He said on this point: “The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots. In Massts. it has been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Governnt. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Massts. for the reduction of salaries and the attack made on that of the Govr. though secured by the spirit of the Constitution itself. He had, he said, been too republican heretofore: he was still, however, republican, but had been taught by experience the danger of the levelling spirit.”[^[471]]

When the proposition that Senators should be elected by the state legislatures was up for consideration, “Mr. Gerry insisted that the commercial and monied interest wd. be more secure in hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice. The people are for paper money when the Legislatures are agst. it. In Massts. the County Conventions had declared a wish for a depreciating paper that wd. sink itself. Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There wd. therefore be so far a better chance of refinement in the choice.”[^[472]]

Nicholas Gilman was by temper and interest a man of affairs, more concerned with the stability of public securities and the development of western land schemes than with political theorizing. From Madison’s record he does not appear to have said anything in the Convention.

Nathaniel Gorham was opposed to property qualifications on the suffrage in the federal Constitution and the association of the judiciary with the executive in the exercise of the veto power.[^[473]] Speaking on the latter point, however, he said, “All agree that a check on the legislature is necessary. But there are two objections against admitting the judges to share in it which no observations on the other side seem to obviate. The 1st is that the judges ought to carry into the exposition of the laws no prepossessions with regard to them; 2d that as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and instead of enabling him to defend himself would enable the judges to sacrifice him.”

Alexander Hamilton had a profound admiration for the British constitution. “The House of Lords,” he said in the Convention, “is a noble institution. Having nothing to hope for by a change and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier against every pernicious innovation whether attempted on the part of the Crown or of the Commons.”[^[474]] Doubtless his maturely considered system of government was summed up in the following words: “All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government. Can a democratic assembly who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy.... It is admitted that you cannot have a good executive upon a democratic plan.”[^[475]] In consonance with these principles Hamilton outlined his scheme of government which included an assembly to consist of persons elected for three years by popular vote, a senate chosen for life or during good behavior by electors chosen by the voters, and a president also elected for life or during good behavior by electors chosen by the voters. The Convention failed to adopt his programme, and he entertained a rather uncertain view of the Constitution as it was finally drafted, doubting its stability and permanency.

William Houstoun, of Georgia, seems to have spoken only once or twice; but he gave an indication of his political science in a remark which he made to the effect that the Georgia constitution “was a very bad one, and he hoped it would be revised and amended.”[^[476]] The constitution to which he alludes was the radical instrument made in 1777, which provided for a legislature with a single chamber and an unusually wide extension of the suffrage.[^[477]]

Jared Ingersoll, in spite of his great abilities as a student and lawyer, seems to have taken no part at all in the debates of the Convention. Such at least is the view to which Madison’s records lead. Something is known, however, of the political principles which he entertained. Though he became intimately associated with President Reed on his migration to Philadelphia in 1778, he never accepted the extreme democratic principles embodied in the constitution of that state in 1776.[^[478]] His biographer, after making an exception of Ingersoll’s services in the Convention, says: “I am not aware that he held or sought a position in any popular or representative body whatever. He was what is called conservative in politics; that is to say, he was not by constitutional temper a rebuilder or reconstructor of anything that had been once reasonably well built; nor was his favorite order of political architecture, the democratic. After the great subversion in 1801 he was found as rarely as anybody in Pennsylvania on the side of the majority. He was known to be inclined to the contrary, so far that with or without his consent he was selected in that state, in the year 1812, as the opposition or anti-Madisonian candidate for the office of Vice-President of the United States.”[^[479]]

Rufus King correctly understood the idea of a balanced government independent of “popular whims” and endowed with plenty of strength. He favored a long term for the President, and speaking on the executive department in the Convention he “expressed his apprehensions that an extreme caution in favor of liberty might enervate the government we were forming. He wished the house to recur to the primitive axiom that the three great departments of governments should be separate and independent: that the executive and the judiciary should be so, as well as the legislative: that the executive should be equally so with the judiciary.... He [the executive] ought not to be impeachable unless he hold his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the legislature. This would be destructive of his independence and of the principles of the constitution. He relied on the vigor of the executive as a great security for the public liberties.”[^[480]] King also believed in the principle of judicial control—that most effective check on the popular attacks on property through legislatures.[^[481]]

It was largely on King’s initiative that the prohibition against interference with contracts was placed in the Constitution.[^[482]]

William Livingston took a middle ground between the “high-toned” system of John Adams and the simple democracy of such writers as “Centinel” of Pennsylvania.[^[483]] The Defence of the Constitutions he impatiently characterized as “rubbage”; and a “Humiliating and mortifying acknowledgement that man is incapable of governing himself.” But for the opposite party that would set up a simple democratic government through legislative majorities, Livingston had just as little patience. “The security of the liberties of a people or state depends wholly on a proper delegation of power. The several component powers of government should be so distributed that no one man, or body of men, should possess a larger share thereof than what is absolutely necessary for the administration of government.... The people ever have been and ever will be unfit to retain the exercise of power in their own hands; they must of necessity delegate it somewhere.... But it has been found from experience that a government by representation, consisting of a single house of representatives, is in some degree liable to the same inconveniences which attend a pure democracy; a few leading men influence the majority to pass laws calculated not for the public good, but to promote some sinister views of their own. To prevent this, another representative branch is added: these two separate houses form mutual checks upon each other; but this expedient has not been found to be altogether effectual. If the legislative power, even tho’ vested in two distinct houses is left without any controul, they will inevitably encroach upon the executive and judicial.... But further, as prejudices always prevail, more or less, in all popular governments, it is necessary that a check be placed somewhere in the hands of a power not immediately dependent upon the breath of the people, in order to stem the torrent, and prevent the mischiefs which blind passions and rancorous prejudices might otherwise occasion. The executive and judicial powers should of course then be vested with this check or controul on the legislature; and that they may be enabled fully to effect this beneficial purpose, they should be rendered as independent as possible.... Tho’ it is so short a time since our governments have been put in motion, yet examples have not been wanting of the prevalence of this dangerous thirst after more power in some of our legislatures; a negative therefore lodged in the hands of the executive and judicial powers, is absolutely necessary in order that they may be able to defend themselves from the encroachments of the legislature.”[^[484]] Livingston thought that there were some grave defects in the Constitution as drafted at Philadelphia and proposed some emendations. He believed that the President should enjoy the appointing power without any control by the Senate; he thought the Chief Justice should hold office during good behavior and be empowered to appoint his colleagues; and he further held that the President, the Chief Justice, and a Superintendent of Finance should be organized into a council of revision to pass upon the acts of Congress.

James McClurg, of Virginia, left the Convention during the early part of August, and was silent on most of the questions before that body. On July 17th, he proposed that the term of the executive should be changed from seven years to “good behavior”;[^[485]] and he was particularly anxious to have the executive independent of the legislature. He said that he “was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican government as not to be sensible of the tyrannies that had been and may be exercised under that form. It was an essential object with him to make the executive independent of the legislature; and the only mode left for effecting it, after the vote destroying his ineligibility the second time, was to appoint him during good behavior.”[^[486]] That McClurg had small respect for legislatures in general is shown by a letter which he wrote to Madison from Virginia on August 7, 1787, in which he said: “The necessity of some independent power to controul the Assembly by a negative, seems now to be admitted by the most zealous Republicans—they only differ about the mode of constituting such a power. B. Randolph seems to think that a magistrate annually elected by the people might exercise such a controul as independently as the King of G. B. I hope that our representative, Marshall, will be a powerful aid to Mason in the next Assembly. He has observ’d the continual depravation of Mens manners, under the corrupting influence of our Legislature; & is convinc’d that nothing but the adoption of some efficient plan from the Convention can prevent Anarchy first, & civil convulsions afterwards.”[^[487]]

James McHenry belonged to the conservative party of his state and opposed “radical alterations” in the constitution of that commonwealth as it stood in November, 1791.[^[488]]

Writing in February, 1787, on the property qualifications placed on voters and representatives in Maryland, McHenry explained that “These disabilities, exclusions, and qualifications have for their object an upright legislature, endowed with faculties to judge of the things most proper to promote the public good.” He was warmly opposed to the doctrine that the people had a right to instruct their representatives.[^[489]] Democracy was, in his opinion, synonymous with “confusion and licentiousness.”[^[490]]

James Madison was the systematic philosopher of the Convention and set forth his views with such cogency and consistency on so many different topics that no short quotations will suffice to state his doctrines. His general scheme of political science was, however, embodied in the tenth number of The Federalist which has been discussed above and need not be reconsidered here.[^[491]]

Alexander Martin was among the silent members of the Convention, for Madison records only an occasional and incidental participation by him in the proceedings.

Luther Martin was the champion of the extreme states’ rights’ view, and entertained rather democratic notions for his time, although, in arguing against the clause prohibiting Congress to issue paper money, he held that, “considering the administration of the government would be principally in the hands of the wealthy,” there could be little danger from an abuse of this power. Martin was in fact a champion of paper money in his state, and he opposed that part of the Constitution which prohibited the emission of bills of credit. As a representative of the more radical section of his community, he was against the clauses restricting the states to the use of the gold and silver coin of the United States, and was opposed to the clause forbidding the impairment of the obligation of contract. Speaking on the latter point he said: “There might be times of such great public calamities and distress, and of such extreme scarcity of specie, as should render it the duty of a government for the preservation of even the most valuable part of its citizens in some measure to interfere in their favor, by passing laws totally or partially stopping the courts of justice, or authorizing the debtor to pay by installments, or by delivering up his property to his creditors at a reasonable and honest valuation. The times have been such as to render regulations of this kind necessary in most or all of the states, to prevent the wealthy creditor and the moneyed man from totally destroying the poor, though even industrious debtor. Such times may again arrive.... I apprehend, Sir, the principal cause of complaint among the people at large, is the public and private debt with which they are oppressed, and which in the present scarcity of cash threatens them with destruction, unless they can obtain so much indulgence in point of time that by industry and frugality they may extricate themselves.”[^[492]]

As might have been expected, a man entertaining such radical notions about the power and duty of a government to interfere with the rights of personalty in behalf of the debtor could not have accepted the instrument framed at Philadelphia. In fact, Martin refused to sign the Constitution; he wrote a vehement protest against it to the legislature of his state; he worked assiduously against its ratification; and as a member of the state convention, he voted against its approval by his commonwealth—but in vain.

George Mason thoroughly understood the doctrine of a balanced government. Speaking in the Convention on the function of the upper house, he said: “One important object in constituting the senate was to secure the rights of property. To give them weight and firmness for this purpose a considerable duration in office was thought necessary. But a longer term than six years would be of no avail in this respect, if needy persons should be appointed. He suggested therefore the propriety of annexing to the office a qualification of property. He thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man.”[^[493]] On another occasion, he presented a motion requiring “certain qualifications of landed property, in members of the legislature.”[^[494]] Although Mason refused to sign the Constitution, his reasons were based on personal economic interests, not on any objections to its checks on democratic legislatures.[^[495]]

J. F. Mercer, of Maryland, who opposed the Constitution in its final form and became the belligerent anti-federalist leader in that state, does not appear to have been so warmly devoted to the “people’s cause,” behind the closed doors of the Convention, for he took exceptions to the proposition that the determination of the qualifications of voters should be left to the several states. But his particular objection was “to the mode of election by the people. The people cannot know and judge of the characters of candidates. The worst possible choice will be made.”[^[496]]

Thomas Mifflin took no part worthy of mention in the proceedings of the Convention, and expounded no views of government during the debates.

Gouverneur Morris, of Pennsylvania, was the leader of those who wanted to base the new system upon a freehold suffrage qualification; and, on August 7, he made a motion to this effect. In the course of the discussion which followed, Morris said: “He had long learned not to be the dupe of words. The sound of Aristocracy, therefore, had no effect on him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens this Country with an Aristocracy. The Aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty? Will they be the impregnable barrier agst. aristocracy?—He was as little duped by the association of the words, ‘taxation & Representation’—The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because they want prudence, because they have no will of their own. The ignorant & the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining ‘freeholders’ to be insuperable. Still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. As to Merchts. &c. if they have wealth & value the right they can acquire it. If not they don’t deserve it.”[^[497]]

In all the proceedings of the Convention, Morris took a deep interest and expressed his views freely, always showing his thorough distrust of democratic institutions. As his biographer, Mr. Roosevelt puts it, “He throughout appears as the advocatus diaboli; he puts the lowest interpretation upon every act, and frankly avows his disbelief in all generous and unselfish motives. His continual allusions to the overpowering influence of the baser passions, and to their mastery of the human race at all times, drew from Madison, although the two men generally acted together, a protest against his ‘forever inculcating the utter political depravity of men, and the necessity of opposing one vice and interest as the only possible check to another vice and interest.’”[^[498]] This protest from Madison, however, betrays inconsistency, for on more than one occasion in the Convention he expounded principles substantially identical with those which he reprobated in Morris.[^[499]] Indeed, what appeared to be cynical eccentricity on the part of the latter was nothing more than unusual bluntness in setting forth Federalist doctrines.

Robert Morris, the merchant prince and speculator of Pennsylvania, seems to have broken his rule of absolute silence only two or three times in the Convention, and he apparently made no speech at all. He nominated Washington as president of the assembly, and seconded Read’s motion that Senators should hold office during good behavior.[^[500]] There is no doubt that Morris appreciated the relative weight of speeches and private negotiations.[^[501]]

In the proceedings of the Convention, William Paterson was chiefly concerned with protecting the rights of small states; but he signed the Constitution, and after its adoption became an ardent Federalist, serving as an associate justice of the Supreme Court. On the bench he was one of the most scholarly and eminent supporters of the doctrine of judicial control over legislation.[^[502]]

William Pierce took little part in the proceedings of the Convention. On the question of states’ rights he held a broad view, saying, “state distinctions must be sacrificed so far as the general government shall render it necessary—without, however, destroying them altogether. Although I am here as a representative from a small state, I consider myself as a citizen of the United States, whose general interest I will always support.”[^[503]] On no occasion, apparently, did Pierce indulge in any general reflections on the basis of all government. He did not sign the Constitution, but he explained this fact by saying, “I was absent in New York on a piece of business so necessary that it became unavoidable. I approve of its principles and would have signed it with all my heart had I been present. To say, however, that I consider it as perfect would be to make an acknowledgement immediately opposed to my judgment.”[^[504]]

Charles Pinckney was among the members of the Convention who thought that it was desirable to fix the property qualifications of members of the national legislature firmly in the Constitution. Speaking on the subject of property and government he said: “The Committee as he had conceived were instructed to report the proper qualifications of property for the members of the Natl. Legislature; instead of which they have referred the task to the Natl. Legislature itself. Should it be left on this footing, the first Legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic influence in the Constitution, but he thought it essential that the members of the Legislature, the Executive, and the Judges—should be possessed of competent property to make them independent & respectable. It was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. The Legislature would have the fate of the Nation put into their hands. The President would also have a very great influence on it. The Judges would have not only important causes between Citizen & Citizen but also where foreigners were concerned. They will even be the Umpires between the U. States and individual States as well as between one State & another. Were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in like proportion for the members of the Natl. Legislature. He would however leave the sum blank. His motion was that the President of the U. S., the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a clear unincumbered Estate to the amount of —— in the case of the President, &c &c—”[^[505]]

Pinckney, in fact, had no confidence in popular government, for on March 28, 1788, he wrote to Madison: “Are you not ... abundantly impressed that the theoretical nonsense of an election of Congress by the people in the first instance is clearly and practically wrong, that it will in the end be the means of bringing our councils into contempt.”[^[506]]

General Charles Cotesworth Pinckney entertained views with regard to the special position that should be enjoyed by property, which were substantially identical with those held by his cousin. He proposed that no salary should be paid to members of the Senate. As this branch, he said, “was meant to represent the wealth of the country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service.”[^[507]] General Pinckney also wished to extend property qualifications not only to members of the legislature, but also to the executive and judicial departments.[^[508]]

Edmund Randolph was not only fully aware of the distress to which property had been put under the Articles of Confederation, but he also understood the elements of a “balanced” government. Speaking on the subject of the structure of the Senate, he said: “If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first, so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U. S. Laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. this tendency of our governments: and that a good Senate seemed most likely to answer the purpose.... Mr. Randolph was for the term of 7 years. The Democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2d. branch is to controul the democratic branch of the Natl. Legislature. If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. The Senate of Maryland constituted on like principles had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the Executive, will in all cases be necessary. A firmness & independence may be the more necessary also in this branch, as it ought to guard the Constitution agst. encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch.”[^[509]]

George Read was most outspoken in his desire to see the Articles of Confederation completely discarded. He said that “he was against patching up the old federal system: he hoped the idea would be dismissed. It would be like putting new cloth on an old garment. The Confederation was founded on temporary principles. It cannot last; it cannot be amended.”[^[510]] He favored vesting an absolute veto power in the executive;[^[511]] and he proposed that Senators should hold office during good behavior.[^[512]]

John Rutledge held that the apportionment of representatives should be on a basis of wealth and population.[^[513]] He favored a property qualification for the legislative, executive, and judicial departments;[^[514]] and he thought that Senators should not be paid.[^[515]] In fact, he was one of the most ardent champions of the rights of property in government in the Convention. He was strictly opposed to the introduction of sentimental considerations in politics, for, speaking on an aspect of slavery and the Constitution, he said: “Religion & humanity had nothing to do with this question—Interest alone is the governing principle with Nations—The true question at present is whether the Southn. States shall or shall not be parties to the Union. If the Northern States consult their interests they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers.”[^[516]]

Roger Sherman believed in reducing the popular influence in the new government to the minimum. When it was proposed that the members of the first branch of the national legislature should be elected, Sherman said that he was “opposed to the election by the people, insisting that it ought to be by the state legislatures. The people, he said, immediately should have as little to do as may be about the government. They want information and are constantly liable to be misled.”[^[517]]

Richard Dobbs Spaight does not seem to have made any very lengthy speeches in the Convention, but his occasional motions show that he was not among those who believed in “frequent recurrence to the people.” On September 6, he moved that the length of the President’s term be increased to seven years, and finding this lost he attempted to substitute six years for four.[^[518]] Spaight was the one member of the Convention, however, who came out clearly and denounced judicial control;[^[519]] but he nevertheless proved a stout champion of the Constitution in North Carolina—defending it warmly against charges to the effect that it was aristocratic in character.[^[520]]

Caleb Strong carried into the Convention the old Massachusetts tradition in favor of frequent elections. He favored a one year term for representatives,[^[521]] voted against a seven year term for President,[^[522]] and also opposed a seven year term for Senators.[^[523]] He supported the Constitution, however, in his native state, and was a member of the convention that ratified it.

George Washington’s part in the proceedings of the Convention was almost negligible, and it does not appear that in public document or private letter he ever set forth any coherent theory of government. When he had occasion to dwell upon the nature of the new system he indulged in the general language of the bench rather than that of the penetrating observer. For example, in his Farewell Address, which was written largely by Hamilton, he spoke of the government’s being “the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation, and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy.”[^[524]] He feared, however, the type of politics represented by the Democratic Societies which sprang up during his administration, and looked upon criticism of the government as akin to sedition.[^[525]] Like Jefferson, he also viewed with apprehension the growth of an urban population, for in a letter to La Fayette at the time of the French Revolution, he said, “The tumultuous populace of large cities are ever to be dreaded. Their indiscriminate violence prostrates for the time all public authority.”[^[526]]

Hugh Williamson was against placing property qualifications on voters for members of Congress;[^[527]] and he was opposed to the association of the judges with the executive in the exercise of the veto power.[^[528]] He preferred to insert a provision requiring a two-thirds vote for every “effective act of the legislature.”[^[529]] He was, however, an opponent of the paper money party in North Carolina[^[530]] and in the Convention he supported a proposition forbidding the states to pass ex post facto laws, on the ground that “the judges can take hold of it.”[^[531]]

James Wilson was among the philosophers of the period who had seriously pondered on politics in its historical and practical aspects. In the Convention he took a democratic view on several matters. He favored the annual election of representatives by the people,[^[532]] he advocated the popular election of United States Senators,[^[533]] and he believed also in the popular election of the President.[^[534]] He furthermore opposed the proposition to place property qualifications on voters.[^[535]] His check on popular legislation was to be found in judicial control, at first in the association of the judges with the executive in its exercise, and later in its simple, direct form.[^[536]] In fact, Wilson shared the apprehensions of his colleagues as to the dangers of democratic legislatures, though he did not frankly advocate direct property checks.[^[537]] He doubtless believed that judicial control would be sufficient.

George Wythe was a representative of the old school of lawyers in Virginia, and he was a profound student of historical jurisprudence, although he apparently made no attempt to apply his learning to any of the general political questions before the Convention. He was a warm advocate of the doctrine of judicial control and gave practical effect to principles while on the bench in Virginia.[^[538]]

The conclusion seems warranted that the authors of The Federalist generalized the political doctrines of the members of the Convention with a high degree of precision, in spite of the great diversity of opinion which prevailed on many matters.

CHAPTER VIII
THE PROCESS OF RATIFICATION

On the 17th day of September, 1787, the Convention at Philadelphia finished its work and transmitted the new Constitution to Congress, with the suggestion that “it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature for their assent and ratification; and that each convention assenting to and ratifying the same should give notice thereof to the United States in Congress assembled.” The Philadelphia Convention further proposed that when nine states had ratified the new instrument, it should go into effect as between the states ratifying the same. Eleven days later, on September 28, the Congress, then sitting in New York, resolved to accept the advice of the Convention, and sent the Constitution to the state legislatures to be transmitted by them to conventions chosen by the voters of the respective commonwealths.

This whole process was a departure from the provisions of the then fundamental law of the land—the Articles of Confederation—which provided that all alterations and amendments should be made by Congress and receive the approval of the legislature of every state. If to-day the Congress of the United States should call a national convention to “revise” the Constitution, and such a convention should throw away the existing instrument of government entirely and submit a new frame of government to a popular referendum, disregarding altogether the process of amendment now provided, we should have something analogous to the great political transformation of 1787–89. The revolutionary nature of the work of the Philadelphia Convention is correctly characterized by Professor John W. Burgess when he states that had such acts been performed by Julius or Napoleon, they would have been pronounced coups d’état.[^[539]]

This revolutionary plan of procedure was foreshadowed in the Virginia proposals at the opening of the Convention, and was, therefore, contemplated by some of the leaders from the beginning. When it was under consideration on June 5, Sherman, of Connecticut, opposed it on the ground that it was unnecessary and that regular provisions were already made in the Articles for amendments. Madison wanted to establish the Constitution on some foundation other than mere legislative approval. Gerry “observed that in the Eastern states the Confederation had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have, at this time, the wildest ideas of government in the world. They were for abolishing the senate in Massachusetts.” King thought that “a convention being a single house, the adoption may be more easily carried through it than through the legislatures where there are several branches. The legislatures also being to lose power will be most likely to raise objections.”[^[540]]

On July 23 the resolution regarding ratification came before the Convention again for discussion,[^[541]] when it was moved that the Constitution be referred to the state legislatures. One of the principal objections urged against this plan was the possibility of a later legislature’s repealing the ratification by a preceding body of the same authority; but the chief problem was whether there was more likelihood of securing a confirmation by legislatures or by conventions. “Whose opposition will be most likely to be excited against the system?” asked Randolph. “That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan.... It is of great importance, therefore, that the consideration of this subject should be transferred from the legislatures where this class of men have their full influence to a field in which their efforts can be less mischievous. It is, moreover, worthy of consideration that some of the states are averse to any change in their constitution, and will not take the requisite steps unless expressly called upon to refer the question to the people.”

Mr. Gorham, of Massachusetts, was of the same opinion. He “was against referring the plan to the legislatures. 1. Men chosen by the people for the particular purpose will discuss the subject more candidly than members of the legislature who are to lose the power which is to be given up to the general government. 2. Some of the legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the legislatures than through a convention. 3. In the states many of the ablest men are excluded from the legislatures, but may be elected into a convention. Among these may be ranked many of the clergy who are generally friends to good government.... 4. The legislatures will be interrupted with a variety of little business; by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system. 5. If the last article of the Confederation is to be pursued the unanimous concurrence of the states will be necessary.”

In the Convention, Ellsworth preferred to trust the legislatures rather than popularly elected conventions. “He thought more was to be expected from the legislatures than from the people. The prevailing wish of the people in the eastern states is to get rid of the public debt; and the idea of strengthening the national government carries with it that of strengthening the public debt.” After the plan of ratification by conventions was carried in spite of Ellsworth’s objections, he defended it in his appeal to the populace by saying: “It proves the honesty and patriotism of the gentlemen who composed the general Convention, that they chose to submit their system to the people rather than to the legislatures, whose decisions are often influenced by men in the higher departments of government, who have provided well for themselves and dread any change least they should be injured by its operation. I would not wish to exclude from a state convention those gentlemen who compose the higher branches of the assemblies in the several states, but choose to see them stand on an even floor with their brethren, where the artifice of a small number cannot negative a vast majority of the people. This danger was foreseen by the federal convention and they have wisely avoided it by appealing directly to the people.”[^[542]]

A study of the opinions of the members of the Convention shows that four leading reasons led to the agreement on ratification by state conventions. It permitted the disregard of the principle of unanimous approval by the states. A firmer foundation would be laid for the Constitution if it had the sanction of special conventions rather than temporary legislatures. One of the first objects of the Constitution was to restrict the authority of state legislatures, and it could hardly be expected that they would voluntarily commit suicide. Another leading purpose of the Convention was to pay the public debt at par, and the members had learned from the repeated appeals to the state legislatures for funds to meet this national obligation that no relief was to be expected from this source. There was a better chance of getting the right kind of citizens elected to a convention than to a legislature. By separating the election of delegates to state conventions from the election of members to the state legislatures, the supporters of the Constitution were better able to concentrate their campaign of education. As for the provision of the Articles of Confederation requiring the approval of every state for any amendment in the Articles, the urgent necessities of the advocates of the new system could not permit such a mere technicality to stand in their way.

The question of their legal right to cast aside their instructions and draft a totally new instrument was more or less troublesome for those who entertained a strict regard for the observance of the outward signs of propriety. No doubt the instructions of the delegations from the several states limited them to the “revision” of the Articles of Confederation, and it is highly improbable that in the state of public temper then prevailing a Convention would have assembled at all if its revolutionary purposes had been understood. During the debates behind closed doors Mr. Paterson declared that the delegates were bound by their instructions, but Randolph replied that “he was not scrupulous on the point of power”; and Hamilton agreed with this view saying, “We owed it to our country to do on this emergency whatever we should deem essential to its happiness. The states sent us here to provide for the exigencies of the union. To rely on and propose any plan not adequate to these exigencies merely because it was not clearly within our powers would be to sacrifice the means to the end.”[^[543]]

Outside the halls of the Convention it also became necessary to defend this revolutionary departure from their instructions. Madison took up the cause in The Federalist[^[544]] and made out an unanswerable case for his side, frankly pleading the justification of revolution if the legal arguments which he advanced were deemed insufficient.

At the outset he is unwilling to admit that the Convention had broken with its instructions and performed a revolutionary act. He, accordingly, puts forward a legal and moral justification first, based upon an analysis of the instructions of the delegates. They were bound, he shows, to make such revisions in the Articles as would render them adequate to the exigencies of the union; but an adequate government, he pleads, could not be made by revising the Articles, and the Convention was either compelled to sacrifice the greater for the less by strictly obeying its instructions or to do its whole duty by sacrificing the letter of the law. Then he clinches the argument: “Let them declare whether it was of most importance to the happiness of the people of America that the Articles of Confederation should be disregarded and an adequate government be provided and the Union preserved; or that an adequate government should be omitted and the Articles of Confederation preserved.”

But Madison, after having paid his respects to Legality, hastens to add that in all great changes in government “forms ought to give way to substance.” A rigid adherence to mere technicalities “would render nominal and nugatory the transcendent and precious right of the people ‘to abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” That is, the right of revolution is, at bottom, the justification for all great political changes. If it is argued that this right of revolution should not be exercised by a small group of men, such as the Convention of fifty-odd delegates at Philadelphia, Madison replies that it is impossible for the whole people to move forward in concert, and “it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens.” This was the manner in which the recent revolt against England was carried out; and in the present case the people had the right to pass upon the work of the Philadelphia assembly.

The opponents of the Constitution were able to see the significance of that clause of the Constitution which cast aside the legal system under which they were living and provided that the new instrument should go into effect when ratified by nine states—as between those states. “Cornelius,” in Massachusetts, exhibited great anxiety on this point, and in his letters of December 11 and 18, 1787, he asked concerning this departure: “Will not the adoption of this constitution in the manner here prescribed be justly considered as a perfidious violation of that fundamental and solemn compact by which the United States hold an existence and claim to be a people? If a nation may so easily discharge itself from obligations to abide by its most solemn and fundamental compacts, may it not with still greater ease do the same in matters of less importance? And if nations may set the example, may not particular states, citizens, and subjects follow? What then will become of public and private faith? Where is the ground of allegiance that is due to government? Are not the bonds of civil society dissolved? Or is allegiance founded only in power? Has moral obligation no place in civil government? In mutual compacts can one party be bound while the other is free? Or, can one party disannul such compact, without the consent of the other? If so, constitutions and national compacts are, I conceive, of no avail; and oaths of allegiance must be preposterous things.”[^[545]]

On all hands the “unconstitutional” procedure of the Convention was attacked by the Anti-Federalists. “A system of consolidation,” says another writer, “has been formed with the most profound secrecy and without the least authority: And has been suddenly and without any previous notice transmitted by the federal convention for ratification—Congress not disposed to give any opinion on the plan, have transmitted it to the legislatures—The legislatures have followed the example and sent it to the people. The people of this state, unassisted by Congress or their legislature, have not had time to investigate the subject, have referred to the newspapers for information, have been divided by contending writers, and under such circumstances have elected members for the state convention—and these members are to consider whether they will accept the plan of the federal convention, with all its imperfections, and bind the people by a system of government, of the nature and principles of which they have not at present a clearer idea than they have of the Copernican system.”[^[546]]

Whatever was thought of the merits of the controversy over the proposed plan of ratification, it was accepted by the state legislatures which were invited by Congress to transmit the Constitution to special conventions. It remains to inquire, therefore, what methods were employed in calling these conventions and setting the seal of approval on the new and revolutionary proposals of the Philadelphia assembly.

The resolution calling the convention in New Hampshire to pass upon the federal Constitution was adopted by the legislature on December 14, 1787. The time for holding the elections was left to the selectmen of the several towns, who were instructed to warn the duly qualified voters of the event. The date for the meeting of the convention was fixed on the second Wednesday of February, 1788.[^[547]] Four hundred copies of the Constitution were ordered to be printed for distribution.

The elections seem to have been held about mid-January, for the New Hampshire Spy, for January 25, 1788, contains a long list of delegates already chosen, and adds that “several of the towns not mentioned in the above list were to have had their meetings this week.”

A majority of the members of the state convention so chosen, writes a student, who has inquired into the personnel of that body, “were undoubtedly opposed to the Constitution.... The talent of the convention was decidedly on the side of the Federalists and a majority of the ablest members were in favor of ratification.... For a time the friends of the Constitution had hopes of securing its ratification without a recess of the convention. Although the greater number of the members from the upper part of the state came down rather opposed to its adoption, yet on the final question it was hoped that a majority would be found to favor it. But these hopes proved delusive. While some of the members who came to the convention instructed to vote against the Constitution had been led by the discussions to a change of opinion and now favored it, they still felt bound by their instructions, and frankly said that if a final vote was to be taken before they had an opportunity to consult their constituents their vote would be adverse to ratification.”[^[548]] Under these circumstances the Federalists adjourned the convention and set to work to convert the enemy. When the convention reassembled a few months later, they were able to carry the day by the uncomfortably small margin of 57 to 47.[^[549]]

In Massachusetts the Federalists lost no time in moving for a convention. As early as October 20, 1787, they carried a favorable resolution in the senate of the state, and secured the concurrence of the house four days later. This resolve provided that the delegates should be chosen by those inhabitants “qualified by law to vote in the election of representatives,” and the elections should take place “as soon as may be” in the several towns and districts. The date for the meeting of the delegates was fixed as the second Wednesday in January next. On January 9, 1788, the Convention met at Boston; and a real battle of wits ensued.

As in New Hampshire, the delegates, when they came together fresh from their constituents, appeared to be opposed to adopting the new instrument of government. A careful scholar, who has studied the period intensively, takes this view: “Had a vote been taken on the adoption of the Constitution as soon as the convention assembled, there can be no question but that it would have been overwhelmingly against the proposed plan.”[^[550]]

Even after powerful influences had been brought to bear, the margin for the Federalists was uncomfortably close—187 to 168. Harding remarks: “The majority in favor of ratification, it will be seen was only nineteen. The nine delegates whose names were returned to the convention, but who were not present when the vote was taken, might almost have turned the scale in the other direction. Bearing in mind that it was mainly the Antifederalist towns that were unrepresented, it may be safely asserted that out of the forty-six delinquent corporations there were enough which were Antifederalist to have procured the rejection of the constitution. This calculation, however, is based on the assumption that a corresponding increase did not take place in the Federalist representation. Had all the towns entitled to send representatives done so, and had all the delegates been present to cast their votes, it is probable that the final result would not have been changed, though the Federalist majority would have been cut down to scarcely more than a bare half-dozen.”[^[551]]

After turning over the debates in the Massachusetts convention, one can scarcely escape the conclusion that the victory in eloquence, logic, and pure argumentation lay on the side of the Federalists; and it would not be worth while to consider at all the charges that improper influence was brought to bear on the delegates, were it not for the fact that they were made at the time and have lasted in the literature on the ratification in Massachusetts. We have “the sober assertion of a reputable historical writer within the last thirty years” to the effect “that enough members of the Massachusetts convention were bought with money from New York to secure the ratification of the new system by Massachusetts.”[^[552]] Harding, after making an examination of the charges, dismissed them as “baseless”; and quite properly, for whoever would convict men of such high standing in the community as King, Gorham, and Strong of being associated with such a reprehensible transaction should produce more than mere unsubstantiated evidence.

The legislature of Connecticut, determined not to be behindhand in setting the approval of the state on the new instrument, called a convention on October 11, 1787.[^[553]] A month was given to the electors to deliberate over the choice of delegates who were to decide the momentous issue. The election was held on November 12; the convention assembled on January 3, 1788; and after a few days’ discussion gave its assent on January 9, 1788, by a vote of 128 to 40.[^[554]]

In New York the voters were given more time than in Connecticut to consider the new Constitution before they were called upon to settle the question of ratification at the polls by choosing delegates to the state convention. It was not until February 1, 1788, that the legislature of that commonwealth issued the call for the special election to be held on the last Tuesday of the following April.[^[555]]

The contest in New York was hot from the start. Governor Clinton, in his message to the legislature in January, 1788, did not mention the Constitution—an omission which gave the Federalists some hope as they had feared an executive attack. The resolution calling the state convention passed the lower house by a narrow margin; and in the senate a motion to postpone the matter was almost carried, receiving nine out of nineteen votes.[^[556]]

When, at length, the convention assembled, at least two-thirds of the sixty-four members were found to be against ratification. Such is the view of Bancroft, and the contemporary press bears out his conclusion.[^[557]] Nevertheless, by much eloquence and no little manœuvring, the Federalist champions were able to obtain a majority of 30 to 27. The assent of the requisite number of opponents was secured only after an agreement that a circular should be issued recommending the call of another national convention at once to revise the Constitution as adopted.

In pursuance of this agreement, the legislature at its next session, on February 5, 1789, called upon Congress to summon another convention to revise the new instrument of government at once. The address of the legislature stated that the Constitution had been ratified “in the fullest confidence of obtaining a revision of the said Constitution by a general convention, and in confidence that certain powers in and by the said Constitution granted would not be exercised until a convention should have been called and convened for proposing amendments to the said Constitution.” The legislature went on to say that it complied with the unanimous sense of the state convention, “who all united in opinion that such a revision was necessary to recommend the said Constitution to the approbation and support of a numerous body of their constituents, and a majority of the members of which conceived several articles of the Constitution so exceptionable, that nothing but such confidence and an invincible reluctance to separate from our sister states could have prevailed upon a sufficient number to assent to it without stipulating for previous amendments.”[^[558]]

The commonwealth of New Jersey made haste to ratify the new Constitution as soon as possible after its transmission by Congress. On November 1, 1787, the legislature issued the call for the convention, ordering the inhabitants who were “entitled to vote for representatives in General Assembly,” to elect delegates on the fourth Tuesday in the following November, i.e., November 27. The date for the meeting of the convention was fixed as the second Tuesday in December, the 11th, and on the 18th day of that month, the members, “Having maturely deliberated on and considered the aforesaid proposed Constitution,” unanimously agreed to its adoption.[^[559]]

The legislature of Delaware, influenced by “the sense and desire of great numbers of the people of the state, signified in petitions to their general assembly,” adopted a resolution on November 10, 1787, calling for the election of delegates within a few days—that is on November 26—for the state convention to pass upon the Constitution. The convention met at Dover on December 3; and after four days’ deliberation on the matter adopted the Constitution by unanimous vote on December 6, 1787.[^[560]]

In Pennsylvania the proceedings connected with the ratification were precipitous and narrowly escaped being irregular. Before it was known that Congress would even transmit the Constitution to the states for their consideration, George Clymer,[^[561]] who had been a member of the national Convention and was then serving in the Pennsylvania legislature, “rose in his place and moved that a state convention of deputies be called, that they meet at Philadelphia, and that they be chosen in the same manner and on the same day as the members of the next general assembly.”[^[562]] In vain did the opponents urge that this was irregular, that it was not known whether Congress would act favorably, and that deliberation rather than haste should characterize such a weighty procedure. The legislature, nevertheless, resolved to call the convention, and adjourned until the afternoon, leaving the date of the convention and manner of selecting delegates to be settled later. The opposition thereupon decided to secure delay by staying away and preventing the transaction of business for want of a quorum.

Meanwhile the news reached Philadelphia that Congress had sent the Constitution to the states for their consideration. The Federalists in the legislature, now having secured the sanction of regularity, determined not to brook further delay, so they sent officers after some of the recalcitrants, who thought “filibustering” justifiable in view of the importance of securing more deliberation before acting. These officers, ably assisted by a Federalist mob “broke into their lodgings, seized them, dragged them through the streets to the State house, and thrust them into the assembly room, with clothes torn and faces white with rage. The quorum was now complete.”[^[563]] The legislature (September 29) fixed the election of delegates to the state convention at a date five weeks distant, November 6, 1787. Thus the people of the state were given a little over a month to deliberate on this momentous issue before selecting their agents to voice their will. Some Federalists, like Tench Coxe, expressed regret at the necessity of adopting these high-handed methods; but the stress was so great that it did not admit of delay.

After the convention assembled, the Federalists continued their irregular practices, although from the vote on the Constitution in the convention this latter manipulation seems to have been a work of supererogation. Everything was done that could be done to keep the public out of the affair. “Thomas Lloyd applied to the convention for the place of assistant clerk. Lloyd was a shorthand writer of considerable note, and when the convention refused his request, determined to report the debates and print them on his own account. His advertisement promised that the debates should be accurately taken in shorthand and published in one volume octavo at the rate of one dollar the hundred pages. These fine promises, however, were never fulfilled. Only one thin volume ever came out, and that contains merely the speeches of Wilson and a few of those of Thomas M’Kean. The reason is not far to seek. He was bought up by the Federalists, and in order to satisfy the public was suffered to publish one volume containing nothing but speeches made by the two federal leaders.”[^[564]] The Federalists appear to have suppressed other attempts at issuing the debates, and they “withdrew their subscriptions from every publication that warmly supported the Antifederal cause.”[^[565]] The Constitution was ratified by a vote of 46 to 23.

Against these precipitous actions on the part of the Federalists in carrying the ratification of the Constitution, a minority of the state convention, twenty-one members, protested in an address to the people after the day had been lost. The protestants told how the federal Convention had been called by Congress, and then recited the facts as they viewed them: “So hastily and eagerly did the states comply [with the call of Congress for the Convention] that their legislatures, without the slightest authority, without ever stopping to consult the people, appointed delegates, and the conclave met at Philadelphia. To it came a few men of character, some more noted for cunning than patriotism, and some who had always been enemies to the independence of America. The doors were shut, secrecy was enjoined, and what then took place no man could tell. But it was well known that the sittings were far from harmonious. Some left the dark conclave before the instrument was framed. Some had the firmness to withhold their hands when it was framed. But it came forth in spite of them, and was not many hours old when the meaner tools of despotism were carrying petitions about for the people to sign praying the legislature to call a convention to consider it. The convention was called by a legislature made up in part of members who had been dragged to their seats and kept there against their wills, and so early a day was set for the election of delegates that many a voter did not know of it until it was passed. Others kept away from the polls because they were ignorant of the new plan; some because they disliked it, and some because they did not think the convention legally called. Of the seventy thousand freemen entitled to vote but thirteen thousand voted.”[^[566]] For a long time the war of the dissenters against the Constitution went on in Pennsylvania, breaking out in occasional riots, and finally in the Whiskey Rebellion in Washington’s administration; but they were at length beaten, outgeneralled, and outclassed in all the arts of political management.

In November, 1787, the Maryland legislature, after hearing Luther Martin’s masterly indictment of the Constitution and McHenry’s effective reply, “unanimously ordered a convention of the people of the state; it copied the example set by Virginia of leaving the door open for amendments; and by a majority of one the day for the choice and the day for the meeting of its convention were postponed till the next April.”[^[567]] Several months were thus given for deliberation, in marked contrast to the speedy despatch of the business in Delaware, New Jersey, Connecticut, Pennsylvania, and Massachusetts. The elections were duly held on the first Monday in April, 1788; and the convention assembled on April 21. The opponents of the Constitution, Chase, Mercer, and Martin, hurled themselves against it with all their might; but, it is related, “the friends to the federal government ‘remained inflexibly silent.’”[^[568]] After a week’s sessions, “the malcontents having tired themselves out,” the convention ratified the Constitution by a vote of sixty-three against eleven on the afternoon of Saturday, April 26. The instrument was formally sealed on the 28th.

The legislature of Virginia, by a resolution passed on October 25, 1787, and a law enacted on December 12th, called a convention to be elected in March, 1788, and to assemble on June 2, 1788.[^[569]] In no state were the forces for and against the Constitution more ably marshalled and led. In no state was there higher order of debate in the convention than took place in Virginia, the birthplace of the Constitution. It was a magnificent battle of talents that was waged during those June days, from the 2nd until the 25th. Then “the roll was called; and from the cities of Richmond and Williamsburg, from the counties near the ocean, from the northern neck, and from the counties between the Blue Ridge and the Alleghanies, eighty-nine delegates voted for the Constitution. From the other central and southern border counties of Kentucky, seventy-nine cried No.” The margin of victory was small, but it was safe.

North Carolina was recalcitrant. The call for the convention was issued by the legislature on December 6, 1787;[^[570]] the election was held on the last Friday and Saturday of March, 1788; and the convention assembled on July 21, 1788. In this body “the Antifederalists obtained a large majority. They permitted the whole subject to be debated until the 2d of August; still it had been manifested from the first that they would not allow of an unconditional ratification.” On that day the convention deferred the ratification of the Constitution by a vote of 184 to 84,[^[571]] and adjourned sine die. The new federal government was inaugurated without North Carolina; but the economic pressure which it brought to bear on that state, combined with the influence of eminent Federalists (including Washington), and the introduction of constitutional amendments in Congress, brought her into the union on November 21, 1789.[^[572]]

South Carolina was one of the most deliberative of all the states, for it was not until January 18, 1788, that the legislature by unanimous resolution called a convention which was elected in April, and organized in Charleston, on May 13 of that year. The discussion there was evidently of a high order. Those who participated in it took first rank in the commonwealth, and the defenders of the new system put forth efforts worthy of the distinguished forensic leaders of the Charleston bar. The opponents exhausted the armory of their arguments, and seeing the tide running against them, they sought an adjournment of five months for further deliberation; but a motion to this effect was lost by a vote of 89 to 135. Finally at five o’clock on the tenth day of the sessions, May 23, the Constitution was carried by a large majority—149 to 73.[^[573]]

The legislature of Georgia, on October 26, 1787, called for a state convention to be chosen “in the same manner as representatives are elected,” at the next General Election, held on the first Tuesday in December, i.e., December 4, 1787. The convention was duly chosen, and met at Augusta on December 25; and after “having taken into serious consideration the said constitution” for four or five days, solemnly ratified the instrument on January 2, 1788.[^[574]]

Rhode Island was the last of the thirteen states to accept the Constitution. She had refused to send delegates to the federal Convention; and the triumphant paper money party there would have none of the efficiency promised by the new system. It was not until May 29, 1790, that Rhode Island ratified the Constitution, and this action was brought about by the immediate prospect of coercion on the part of the government of the United States,[^[575]] combined with the threat of the city of Providence to join with the other towns which were Federalist in opinion, in a movement to secede from the state and seek the protection of the federal government.[^[576]] Without these material considerations pressing upon them, the agrarians of that commonwealth would have delayed ratification indefinitely; but they could not contend against a great nation and a domestic insurrection.

A survey of the facts here presented yields several important generalizations:

Two states, Rhode Island and North Carolina refused to ratify the Constitution until after the establishment of the new government which set in train powerful economic forces against them in their isolation.

In three states, New Hampshire, New York, and Massachusetts, the popular vote as measured by the election of delegates to the conventions was adverse to the Constitution; and ratification was secured by the conversion of opponents and often the repudiation of their tacit (and in some cases express) instructions.

In Virginia the popular vote was doubtful.

In the four states which ratified the constitution with facility, Connecticut, New Jersey, Georgia, and Delaware, only four or five weeks were allowed to elapse before the legislatures acted, and four or five weeks more before the elections to the conventions were called; and about an equal period between the elections and the meeting of the conventions. This facility of action may have been due to the general sentiment in favor of the Constitution; or the rapidity of action may account for the slight development of the opposition.

In two commonwealths, Maryland and South Carolina, deliberation and delays in the election and the assembling of the conventions resulted in an undoubted majority in favor of the new instrument; but for the latter state the popular vote has never been figured out.[^[577]]

In one of the states, Pennsylvania, the proceedings connected with the ratification of the Constitution were conducted with unseemly haste.

CHAPTER IX
THE POPULAR VOTE ON THE CONSTITUTION

In the adoption of the Constitution, says James Wilson, we have the gratifying spectacle of “a whole people exercising its first and greatest power—performing an act of sovereignty original and unlimited.”[^[578]] Without questioning the statement that for juristic purposes the Constitution may be viewed as an expression of the will of the whole people, a historical view of the matter requires an analysis of “the people” into its constituent elements. In other words, how many of “the people” favored the adoption of the Constitution, and how many opposed it?

At the very outset, it is necessary to recall that the question whether a constitutional Convention should be held was not submitted to popular vote, and that it was not specially passed upon by the electors in choosing the members of the legislatures which selected the delegates.[^[579]]

In the second place, the Constitution was not submitted to popular ratification. The referendum was not unknown at that time, but it was not a fixed principle of American politics.[^[580]] At all events, such a procedure does not seem to have crossed the minds of the members of the Convention, and long afterward, Marshall stated that ratification by state conventions was the only mode conceivable.[^[581]] In view of the fact that there was no direct popular vote taken on the Constitution, it is therefore impossible to ascertain the exact number of “the people” who favored its adoption.

The voters, who took part in the selection of delegates to the ratifying conventions in the states, may be considered as having been divided into four elements: those who were consciously in favor of the Constitution, those who were just as consciously against it, those who were willing to leave the matter to the discretion of their elected representatives, and those who voted blindly.

The proportions which these four groups bear to one another cannot be determined, but certain facts may be brought out which will throw light on the great question: How many of the people favored the adoption of the Constitution?

The first fact to be noted in this examination is that a considerable proportion of the adult white male population was debarred from participating in the elections of delegates to the ratifying state conventions by the prevailing property qualifications on the suffrage. The determination of these suffrage qualifications was left to the state legislatures; and in general they adopted the property restrictions already imposed on voters for members of the lower branch of the state legislatures.

In New Hampshire the duly qualified voters for members of the lower house were authorized to vote for members of the convention, and those Tories and sympathizers with Great Britain who were excluded by law were also admitted for this special election.[^[582]] In Massachusetts the voters were those “qualified by law to vote in the election of representatives.”[^[583]] In Connecticut, those “qualified by law to vote in town meetings” were enfranchised.[^[584]] In New Jersey, those who were “entitled to vote for representatives in general assembly;”[^[585]] and in Delaware, those “qualified by law to vote for Representatives to the General Assembly”[^[586]] were empowered to vote for delegates to their respective conventions. In Pennsylvania, voters for members of the assembly selected the delegates to the convention.[^[587]] In Maryland, voters for members of the lower house;[^[588]] in Virginia, those possessing the “qualifications now established by law;”[^[589]] in North Carolina, those entitled to vote for members of the House of Commons;[^[590]] in South Carolina, those voting for members of the lower house; and in Georgia, those voting for members of the legislature (one branch) were admitted to participation in the election of delegates to their respective state conventions.[^[591]]

In New York alone was the straight principle of manhood suffrage adopted in the election of delegates to the ratifying convention. Libby seems inclined to hold that this exception was made by the landed aristocracy in the state legislature because it was opposed to the Constitution and wished to use its semi-servile tenants in the elections; but this problem has not yet been worked out, and any final conclusion as to the “politics” of this move is at present mere guesswork.[^[592]]

It is impossible to say just what proportion of the adult males twenty-one years of age was disfranchised by these qualifications. When it is remembered that only about 3 per cent of the population dwelt in towns of over 8000 inhabitants in 1790, and that freeholds were widely distributed, especially in New England, it will become apparent that nothing like the same proportion was disfranchised as would be to-day under similar qualifications. Dr. Jameson estimates that probably one-fifth of the adult males were shut out in Massachusetts,[^[593]] and it would probably be safe to say that nowhere were more than one-third of the adult males disfranchised by the property qualifications.

Far more were disfranchised through apathy and lack of understanding of the significance of politics. It is a noteworthy fact that only a small proportion of the population entitled to vote took the trouble to go to the polls until the hot political contests of the Jeffersonian era. Where voting was viva voce at the town hall or the county seat, the journey to the polls and the delays at elections were very troublesome. At an election in Connecticut in 1775, only 3477 voters took part, out of a population of nearly 200,000, of whom 40,797 were males over twenty years of age. How many were disfranchised by the property qualifications and how many stayed away through indifference cannot be shown.[^[594]]

Dr. Jameson, by most ingenious calculations, reaches the conclusion that in Massachusetts about 55,000 men in round numbers or about 16 or 17 per cent of the population were entitled to vote under the law. Assuming that 16 per cent were entitled to vote, he inquires into the number who actually exercised the franchise in the years from 1780 to 1790 in elections for governor; and his inquiry yields some remarkable results. To give his conclusions in his own words: “Something like three per cent [of the population, or about one-fifth or one-sixth of those entitled to vote] took part in the first election in the autumn of 1780. During the next six years the figures remain at about two per cent only. In 1784, only 7631 votes were cast in the whole state; in the spring of 1786 only a little over eight thousand. Then came Shays’ Rebellion and the political excitement of that winter brings up the votes in the spring election of ‘87 to a figure nearly three times as high as in ’86, and amounting to something between five and six per cent of the population. The political discussions of the next two winters respecting the new federal government keep the figure up to five per cent. Then it drops to something between three and four and there it remains until 1794.”[^[595]]

For the purposes of a fine analysis of the economic forces in the ratifying process, it would be of the highest value to have the vote on delegates to the state conventions in each town and county throughout the whole country; but unfortunately no such figures are compiled and much of the original materials upon which the statistical tables could be based have doubtless disappeared.[^[596]] Even such tables would be unsatisfactory because in several instances there were no contests and the issue of adoption or rejection of the Constitution was not squarely put before the voters.

In a few instances, however, the number of voters participating in the election of delegates to the state conventions has come down to us. In Boston, for example, where the fight was rather warm, and some 2700 men were entitled to vote, only 760 electors turned out to pass upon the momentous issue of the national Constitution—about half as many as voted in the next gubernatorial election.[^[597]]

The treatises on the Constitution do not give any figures on the popular vote for delegates to the state convention in New York, but the following partial list taken from contemporary papers shows that in some of the counties the vote ran to almost 10 per cent of the population, while in others the percentage of the electorate participating (even under the universal manhood suffrage provision) was about that in Massachusetts, namely, 5 per cent. It will be noted also that the distribution of representation in the convention was grossly unequal and decidedly unfavorable to the Anti-Federalists. The classification into Federalist and Anti-Federalist is based upon the election returns as reported in the contemporary press, not on the vote in the state ratifying convention.