CHAPTER V
REFORMING THE NATIONAL GOVERNMENT
The suggestion, emanating from the unsuccessful gathering at Annapolis, that a convention of delegates be called from the several States to meet at Philadelphia the following year to devise means for rendering the National Government adequate to its task, was supported most admirably by the condition of the times. The Shays Rebellion in Massachusetts, its support in the neighbouring States, and the disorder in Virginia and New Jersey, were moving arguments for immediate action. Even Washington was forced to admit that the people were at last sufficiently misled. The National Government, helpless to invade a sovereign State to suppress domestic insurrection, was compelled to finesse in taking some steps to mobilise the militia by imagining an outbreak of Indians in Massachusetts.
Led by the alarming situation, Congress, with unusual dispatch, took up the Annapolis suggestion within five months after its receipt. But the feeling that the initiative should come from the Congress itself rather than from an irregular convention led to the substitution of a motion from the Massachusetts delegates in Congress that a convention of delegates should be held at Philadelphia on the second Monday of the following May "for the sole and express purpose of revising the Articles of Confederation" and reporting its suggestions to Congress and the several State Legislatures.
During the spring of 1787, State after State took up the idea of a convention of the people to correct the errors in the national frame. With rare discrimination, they chose, through their State Legislatures, their leading men as delegates. All hope became centred in this apparently last resort. The convention "will either recover us from our present embarrassments or complete our ruin," said Monroe. That radical changes were necessary, many felt assured. Madison likened the Government at this time to a ship which Congress kept from sinking by standing constantly at the pumps instead of stopping the leaks which endangered her. He began to talk about "a new system" before the convention assembled. In sending to Washington an outline study of all prior confederated governments, he wrote, "Radical attempts, although unsuccessful, will at least justify the authors of them."
Such sentiments were found to prevail generally among the delegates when, on May 25, 1787, a majority of the States was represented and sessions begun in the Independence Hall in the city of Philadelphia. Within five days it was decided to cast aside the deficient Articles, to exceed instructions, and to frame a new National Government with separate legislative, judiciary, and executive functions. To put new wine into old bottles was felt to be useless. No small task confronted the convention in carrying out this resolution. Independence and the other steps thus far leading toward nationality had been taken, as George Mason, of Virginia, said, under a certain enthusiasm which inspired and supported its advocates; but to sit down calmly to consider a project which might bring happiness or misery to millions yet unborn was an action, which, he confessed, absorbed and in a measure suspended the human understanding. Robert Morris, a delegate from Pennsylvania, begged his sons in France to offer a prayer for the success of the meeting since so much of their future happiness depended upon it.
The lack of information on the work of the convention, which sat from May 25 to September 17, 1787, is frequently deplored. The deficiency is due not to indifference on the part of those concerned, but largely to the lack of information given out to the public at the time and since. In apologising to Jefferson for not sending a full account of the proceedings during the sessions, Madison said: "It was thought expedient, in order to secure unbiassed discussion within doors, and to prevent misconceptions and misconstructions without, to establish some rules of caution." These rules, adopted early in the proceedings, forbade the inspection of the minutes by any one not a member, prohibited the copying of any part of them, and enjoined the members against disclosing anything said in the sessions. Dr. Manasseh Cutler, who visited Philadelphia during the summer, went to the State House, but found "sentries planted without and within—to prevent any person from approaching near—who appear to be very alert in the performance of their duty." When he went to pay his respects to Dr. Franklin, a member of the convention from Pennsylvania, the philosopher showed him a curiosity in the shape of a two-headed snake and fell to speculating upon what it would do if, on meeting the stem of a bush, the heads should choose to go one on each side of it. "He was then going to mention," wrote Cutler in his journal, "a humorous matter that had that day taken place in convention, in consequence of his comparing the snake to America; but the secrecy of the convention matters was suggested to him, which stopped him."
[Illustration: MANASSEH CUTLER]
This secrecy was felt to be binding perpetually by many of the members. The secretary of the convention, Major Jackson, who came to Philadelphia as private secretary to General Washington, kept the official minutes. This book, by one of the final motions of the convention, was entrusted to Washington, who had presided so conscientiously over the sessions that he did not allow himself even the privilege of debating. In 1796, he deposited it among the public archives. Until the year 1837, these minutes, with a few letters submitted by some of the seceding delegates justifying their action, and the gleanings from eighty-odd private letters written by members of the convention, constituted all public knowledge of the details of the meeting. But in the year mentioned above, Madison's papers were purchased by the National Government, and among them was found a number of little home-made books containing his priceless "Notes on the Convention." In the introductory pages, Madison tells how he carried out his determination to preserve a record of the debates for the benefit of posterity.
"I chose a seat," he says, "in front of the presiding member, with the other members on my right and left hands. In this favourable position for hearing all that passed, I noted, in terms legible and in abbreviations and marks intelligible to myself, what was read from the Chair or spoken by the members; and, losing not a moment unnecessarily between the adjournment and re-assembling of the convention, I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files."
The changes made from day to day in the drafts of the Constitution, as recorded in the minutes, are cleared up by the light of Madison's notes and become a series of compromises. They were concessions made by superior to inferior factions, or sacrifices made by one section to satisfy and quiet another. That the equal State representation in the Continental Congress, for instance, had been one of the most pernicious parts of the Confederation machinery no one doubted. The practice had been inaugurated in the first Continental Congress, as the minutes under Sept. 6, 1774, explain, because the relative importance of the colonies represented could not be determined at the time. It was continued by default. But the arrangement bore no respect to proportional representation. New Hampshire, Rhode Island, New Jersey, Delaware, Maryland, South Carolina, and Georgia could combine and make a majority of the States and yet contain not one-third of the people. New York and Connecticut might be added, making nine of the thirteen States, but representing less than one-half the total population.
Notwithstanding this inconsistency in the old method, so strong was the fear of the smaller States that their large neighbours would absorb or oppress them, that they took a decided stand in the convention against all propositions to change to proportional representation. The Delaware representatives were authorised to withdraw rather than submit to any arrangement depriving the State of an equal vote with the other States. On the other hand, the large States, especially Virginia, New York, and Massachusetts, insisted upon changing to representation based on wealth or population. As a way out of the deadlock, after weeks of debate, two branches of Congress were determined upon, in one of which membership and voting should be proportionate. Franklin then proposed as a compromise that in one branch all bills for revenue should originate and in the other branch the States should have equal vote. This adjustment between the large and small States was considered the grand compromise, and its acceptance was a matter for common rejoicing.
The solution of this problem immediately raised another. What was meant by "population," which had been substituted for wealth as a basis of apportioning delegates in the popular branch? Did it include slaves? The Continental Congress had long been accustomed in assessing the expenses of the war to add to the quotas of the States a sum equal to three-fifths of the number of slaves in each, on the ground that the labour of five slaves was equivalent to that of three free men. This proportion was now taken both for determining representatives in Congress and for assessing direct taxes. The States which continued to hold slaves would consequently have the benefits of three-fifths of their slaves represented by additional congressmen; but they must bear three-fifths additional of a direct tax, whenever one might be levied by the National Government.
The questionable value of slave labour had already divided the Southern States into two economic classes. Delaware, Maryland, and Virginia, because of the exhausting effects of tobacco upon the soil, had attempted to restrict its cultivation by forbidding more slaves to be brought in. The two Carolinas and Georgia, requiring fresh slave labour for their rice and indigo fields, would not consent to any diminution of the supply. A compromise was at last effected in the convention which permitted the importation of new slaves into the United States for the coming twenty years. This was done by the votes of the New England States, where the slave-trading vessels were generally built, added to those from the three Southern States. Against these were New Jersey, Pennsylvania, Delaware, and Virginia. For some reason, the Maryland delegates voted with the majority to keep the trade open. This compromise was strongly opposed by Gouverneur Morris, a Northern man, who confessed that he would sooner submit himself to a tax for buying all the negroes in the United States than saddle posterity with such a slavery constitution, and by Madison, a Southerner, who declared that these twenty years would bring as much mischief as an unlimited trade could produce. In accord with the practice of the old Congress, the delegates decided to eliminate the word "slave" from the Constitution, lest it might cause offence and beget opposition toward the new government they were about to propose. Milder terms, like "such persons" or "persons legally held to service or labour," were substituted.
Many other adjustments were necessary to settle the Continental differences. By one of these, the nation was given full control of commerce. By another, the matter of choosing a chief executive was entrusted not to the people directly, because, as was said, they would be likely to be misled by designing men; nor to the national Congress, because of the inequality of the Senate and House representation; nor yet to the State Legislatures, because of the unequal sizes of the States; but to a set of electors to be chosen by the States, a kind of substitute for these various plans. The term of the presidential office was, after many debates, fixed at four years, although an urgent minority wanted him to serve seven years and not be eligible for a second term. In very truth it may be said that the entire document is made up of a series of compromises.
The twenty-three resolutions offered by Governor Randolph, of Virginia, are commonly considered as forming the groundwork of the Constitution. With them were incorporated apparently six provisions taken from the plan devised in a conference of the small States and offered by Paterson, of New Jersey, together with twenty suggestions emanating from an individual member, Pinckney, of South Carolina. Even the Virginia resolutions, although commonly ascribed to Madison and winning for him the title, "Father of the Constitution," are modestly ascribed by him to the series of conferences held by the Virginia delegates during the ten days they waited for a quorum. "The resolutions," said he later, "were the result of a consultation among the deputies of the State; the whole number, seven, being present. Mr. Randolph was made the organ of the occasion, being the governor of the State, of distinguished talents, and in the habit of public speaking."
Turning over the pages of Madison's "Notes," one may follow through committee and general session, the slow evolution of the Constitution of the United States. The eager hands of the experienced workers turned over the materials of old forms, rejecting parts hitherto tried and found wanting, welding together familiar pieces brought from monarchical or colonial precedent, and constructing a machine noted for practicability rather than for novelty. They were forced to use careful workmanship because of the great variety of opinions. They were hindered constantly from rash action by inherited prejudices and climatic differences. And they were conscious at the end of having wrought, not perfectly, but as well as conditions would permit.
Experience was the fountain from which the Constitution-makers drew their "inspiration." A novel creation, as a certain narrow provincialism in the United States is sometimes fond of claiming for the Constitution, would have been an assembling of theoretical machinery, of untried experiments, which could not have met the shock of being suddenly put into motion to replace a broken down system. It could not have won back, solely on its merits, the confidence of the discouraged people. If it had been "the most wonderful work ever struck off at a given time by the brain and purpose of man," it could scarcely have withstood the vicissitudes of a growing people for over a century, with amendment in four particulars only. More experiments and less experience might have required the adoption of more of the fifteen hundred amendments which have been proposed to the Constitution in these hundred years. Experience is a safe ground upon which to build. Gouverneur Morris demolished a vast amount of eulogy when he wrote to a correspondent in France that some boasted the Constitution as a work from Heaven, while others gave it a less righteous origin. "I have many reasons to believe," said this matter-of-fact man, who bore such a large part in recasting the phraseology of the document, "that it was the work of plain, honest men."
As matter is not created in any of its forms, but simply assumes new combinations by its own laws or under the guidance of man, so apparently new models in statecraft may be resolved by analysis into old ideas in new combinations. The American Constitution is the English system of government adapted to American soil through the intervening colonial and state governments. The president is the king through the royal governor, but shorn of his prerogative, descent, and perpetuity in the transition. The Senate is the House of Lords, with its permanency changed into a long tenure of office by passing through the colonial council. To the same intermediate State is due the power of appointment to office and of treaty-making which the Senate shares with the executive, thus reviving the relation of the privy council, chosen from the House of Lords, to the King. The House of Representatives is copied directly from the popular assembly of the colonial government, which in turn was modelled after the British Commons. The right of originating bills of revenue, which the Representatives possess, was preserved in many a contest between colonial assemblies and royal governors. It is the birthright of Englishmen, dating from the Petition of Right granted by Charles I., which substituted fixed taxes for forced loans and gifts. The national supreme judiciary, the most novel of the three divisions of the National Government, embodies in its appellate principles the Privy Council of England, to which all colonists could appeal, and the later admiralty committees of the Continental Congress, to which all cases of prizes seized in the war might be referred. The theory of a state court of last resort had already found place in nine of the State constitutions and the convention simply placed the capstone of a national Supreme Court on the top of the column. Some parts of the colonial government were rejected as unfitted to the national frame. An advisory council for the President, such as nearly every colony gave to its governor, was desired by many but finally omitted. The present Cabinet really takes its place.
In like manner, it is possible to find British and colonial precedent, tried and proved, for almost every provision of the National Government. The ruling class at the time it was framed was composed of English and Scotch, trained in British forms of government. The Dutch in New York and the Germans of Pennsylvania took almost no part in the Philadelphia Convention. It is as useless to deny an English parentage for the American Constitution as to deny that there were English colonies in America. So did the heirs of the ages avoid the mistakes of the past by seeking the results of the law of the survival of the fittest. They form a strong contrast with another people, less fitted by inheritance for self-government, who were at about the same time entering upon the task of constitution-making. "It is somewhat singular that we should be engaged in the same project for the same purpose," Franklin wrote to Chastellux, referring to the Assembly of Notables in France and the Constitutional Convention in Philadelphia. "I hope both assemblies will be blessed with success and that their deliberations and councils may promote the happiness of both nations."
It so chanced that the very day the convention in Philadelphia had a quorum, the Assembly in France, initiatory of the French Revolution, was dismissed. Both had met in the spirit of reform; but to what different ends did the two movements eventually come! The Americans had in no case attempted the impossible; had not hoped for the immediate dawn of the millennium; had not even attempted to put into practice the loftiest sentiments of the Declaration of Independence; and had carefully distinguished between the State as an agency for political and for social rights. Very similar moderate sentiments on government had been carried to France by Lafayette, the Lameths, Viscount de Noailles, the Prince de Broglie, and others who came to America to take part in the Revolutionary War. Their influence produced the moderate French constitution of 1791, which shows a marked resemblance to the American frame. That these principles were suited to the American people is demonstrated by the rapidity with which peace and order were established under them. That they were ill qualified for the French people was shown by the early overthrow of the constitution of 1791.
The French constitution of 1793 and those which followed bore little resemblance to the American frame. The influence which the American Revolution exerted upon the French Revolution had passed, and the two movements bore no further resemblance to each other. The Americans had been content with a rebellion against authority and a revolution which substituted old forms, or combinations of forms, with new officials. The French revolutionists were not satisfied until they had tried to change all existing forms and institutions. They would annihilate society, the church, Christianity, even Deity itself. Precedent became a crime. The accepted system of weights and measures, the calendar—nothing was too well tried to compete with innovation. In America, the rights of man were eventually tacked on to the tail of the American Constitution as an afterthought to conciliate the timorous, "a tub thrown to the whale," as the first ten amendments have been called. In France, the rights of man overshadowed the working part of the constitution, delaying essential details by their incorporation, and ultimately furnishing a pretext for interfering with other peoples. When once the Americans had secured a constitution, they desired nothing so much as to be left alone to work out their own destiny. When once the French had evolved a system, with true propagandist spirit they wished to foist it on others. "With cannon for treaties and millions of freemen as ambassadors," they demanded that the feet of all nations should keep step with the march of what they deemed liberty. Hamilton, as usual, had proven a seer when he wrote to Lafayette in France at the very beginning of the French movement, "I fear much the final success of the attempt, for the fate of those I esteem who are engaged in it, and for the danger in case of success, of innovations greater than will consist with the felicity of your nation."
The people of America seemed to wait with bated breath the conclusion of the deliberations of the wise men of the nation met in convention at Philadelphia. Rebellion stood with hesitating step, and warring factions tacitly declared a truce. The crisis was at hand.
"The names of the members will satisfy you that the states have been serious in this matter," wrote Madison to Jefferson from Philadelphia. "The attendance of General Washington is a proof of the light in which he regards it. The whole community is big with expectation and there can be no doubt that the result will in some way or other have a powerful effect on our destiny."
Even stronger conviction of the critical situation may be gleaned from the private correspondence of the other members, bound by the pledge of secrecy from describing the turbulent scenes attending the sessions. Daily had they seen the difficulty of reconciling the inherited animosity between the Puritan and the Cavalier transplanted to America; between the Established Church and the Dissenter; between commercial and agricultural interests; between a slave system and free labour; between an urban population, accustomed to abide by majority rule, and a rural people, bred to individual freedom and absolute home rule. They had to evolve a system satisfactory to people scattered through thirteen degrees of latitude, with climatic differences arising from a mean average temperature of forty degrees in the north and sixty degrees in the south. Such decentralising tendencies were met with nowhere in Europe save under the strong hand of a monarch in Russia. These climatic differences produced the frugal Northerner, who had to provide in advance for the winter season, and the hospitable planter of the South, in whom prodigality was induced by the very lavishness of nature about him. It was not strange that by contrast, and seen through the haze of distance, the frugality of the North should appear to be avarice to the South; while the hospitality upon which that section prided itself should seem to be prodigality in Northern eyes. These bask differences could be reconciled by compromise, and that only temporarily. Washington had summed up the situation when he declared that there must be reciprocity or no union; that the whole matter could be reduced to a single question—whether it was best for the States to unite.
Although Washington, as presiding officer, took no part in the debates, his influence in favour of effective government must have had weight in the convention. Madison and Gouverneur Morris bore the brunt of objections to a national system. Franklin, a victim of old age and ill health, was allowed to read his speeches from his seat. Hamilton pleaded for a more effective system early in the sessions, but his radical views undoubtedly militated against any plan he had to offer. Two of the most influential members from the Southern States, Randolph and Mason, of Virginia, refused to countenance the proceedings by their signatures to the document. Another member, Gerry, of Massachusetts, followed their example. Luther Martin, a prominent lawyer of Maryland, returned to his constituency to write a letter of protest against the assumption of power by the convention in framing a new government when called together solely for the purpose of correcting the old. Yates and Lansing, two of the three delegates from the prominent State of New York, went home for the same reason. The third, Alexander Hamilton, withdrew for a time in disgust because his efforts for an efficient central power produced apparently little results. The sessions had, for the most part, representatives from eleven States only, Rhode Island having failed to send delegates. Her refusal was caused by a conviction that the convention would recommend taking away from the States the power to issue money and to collect duties. Her fears proved true.
Outside the closed doors of the convention the public clamoured, declaring Star-Chamber sessions an insult to the American people. All kinds of rumours prevailed concerning the probable action of the convention. Some newspapers declared that three republics, an eastern, a middle, and a southern, had been agreed upon, under the conviction that so numerous a people and so large a territory could not be incorporated under one government. Still others passed the news that the plan of the royal electorate of Poland had been adopted, and the second son of George III., Bishop of Osnaburgh, had been chosen king of the United States. An unofficial denial of this rumour appeared in a Philadelphia paper. "We never once thought of a king," it said. "Benny the Roofer" appeared in the prints in ridicule of Benjamin Franklin, who, it was said, was endeavouring to construct a roof over the entire United States.
At last the only body, which has ever been called together in the United States to consider a frame of national government, was ready to report and to adjourn. A new plan of government lay on the table signed by thirty-nine of the fifty-five men attending the convention. They admitted its defects, but agreed that it was the best frame that could be obtained at the time, and resolved to throw themselves on the indulgence of their constituents. As much was confessed in the explanatory and conciliatory circular, which they prepared to accompany the document to the Congress and thence, they hoped, to the States.
"Individuals entering society," so the circular argued, "must give up a share of liberty to preserve the rest. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and, on the present occasion, this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular rights. The Constitution which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable."
Here was the voice of compromise, and of that conciliatory spirit, which alone can make union possible. If the people at large would show the same indulgence toward each other, the experiment would be given a trial. Assuredly, the members of the convention set them a good example of toleration. "No man's ideas," said Hamilton, "are more remote from the plan than my own are known to be; but is it possible to deliberate between anarchy and convulsion on the one side and the chance of good to be expected from the plan on the other?" "I consent, sir, to this Constitution," said the aged Franklin, in a paper read by his confrere, Wilson, "because I expect no better, and because I am not sure it is not the best." He advised that opinions on the errors of the document should never be carried beyond the walls of the convention.
"If every one of us here," said he, "in returning to our constituents, were to report the objections he has had to it, and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves, from our real or apparent unanimity."
Gouverneur Morris confessed that the present plan had many objections, but, considering it the best that could be obtained, he would take it with all its faults. The moment it went forth, the great question, in his opinion, would be whether there should be a national government, or not, and a negative reply would mean a general anarchy.
Washington, after his return to Mt. Vernon, sent a copy of the document to Patrick Henry, saying, "I wish the Constitution, which is offered, had been more perfect; but I sincerely believe it is the best that could be obtained at this time." The Revolutionary orator had refused to attend the convention as a delegate from Virginia. He preferred the Articles with their imperfections to an experiment. To Washington he replied that he could not bring his mind to accord with the proposed Constitution. He would prefer to bear the ills they had than fly to others that they knew not of. Harrison, a Virginia neighbour with whom Washington had also been associated since the Revolutionary times, replied to the General in acknowledging the receipt of a copy of the Constitution that he feared the remedy would be worse than the disease. Such sentiments were not confined to these Virginia statesmen. It was evident that the victory for the new government had been only half won in its formation and adoption by the convention. It had yet to be accepted by the Congress and to be adopted by nine of the States before going into effect. Great opportunity for a renewal of insurrection and faction would be offered by undue delay.