CHAPTER I.
General Reception of the Constitution.—Hopes of a Reunion with Great Britain.—Action of the Congress.—State of Feeling in Massachusetts, New York, Virginia, South Carolina, Maryland, and New Hampshire.—Appointment of their Conventions.
The national Convention was dissolved on the 14th of September. The state of expectation and anxiety throughout the country during its deliberations, and at the moment of its adjournment, will appear from a few leading facts and ideas, which illustrate the condition of the popular mind when the Constitution made its appearance.
The secrecy with which the proceedings of the Convention had been conducted, the nature of its business, and the great eminence and personal influence of its principal members, had combined to create the deepest solicitude in the public mind in all the chief centres of population and intelligence throughout the Union. An assembly of many of the wisest and most distinguished men in America had been engaged for four months in preparing for the United States a new form of government, and the public had acquired no definite knowledge of their transactions, and no information respecting the nature of the system they were likely to propose. Under these circumstances, we may expect to find the most singular rumors prevailing during the session of the Convention, and a great excitement in the public mind in many localities, when the result was announced. Among the reports that were more or less believed through the latter part of the summer, was the idle one that the Convention were framing a system of monarchical government, and that the Bishop of Osnaburg was to be sent for, to be the sovereign of the new kingdom.
Foolish as it may appear to us, this story occasioned some real alarm in its day. It is to be traced to a favorite idea of that class of Americans who had either been avowed "Tories" during the Revolution, or had secretly felt a greater sympathy with the mother country than with the land of their birth, and who were at this period generally called "Loyalists." Some of these persons had taken no part, on either side, during the Revolutionary war, and had abstained from active participation in public affairs since the peace. They were all of that class of minds whose tendencies led them to the belief that the materials for a safe and efficient republican government were not to be found in these States, and that the public disorders could be corrected only by a government of a very different character. Their feelings and opinions carried them towards a reconciliation with England, and their grand scheme for this purpose was to invite hither the titular Bishop of Osnaburg.[395]
Their numbers were not large in any of the States; but the feeling of insecurity and the dread of impending anarchy were shared by others who had no particular inclination towards England; and it is not to be doubted that the Constitution, among the other mischiefs which it averted, saved the country from a desperate attempt to introduce a form of government which must have been crushed beneath commotions that would have made all government, for a long time at least, impracticable. The public anxiety, created by the reports in circulation, had reached such a point in the month of August,—when it was rumored that the Convention had recently given a higher tone to the system they were preparing,—that members found it necessary to answer numerous letters of inquiry from persons who had become honestly alarmed. "Though we cannot affirmatively tell you," was their answer, "what we are doing, we can negatively tell you what we are not doing:—we never once thought of a king."[396]
All doubt and uncertainty were dispelled, however, by the publication of the Constitution in the newspapers of Philadelphia, on the 19th of September. It was at once copied into the principal journals of all the States, and was perhaps as much read by the people at large as any document could have been in the condition of the means of public intelligence which a very imperfect post-office department then afforded. It met everywhere with warm friends and warm opponents; its friends and its opponents being composed of various classes of men, found, in different proportions, in almost all of the States. Those who became its advocates were, first, a large body of men, who recognized, or thought they recognized, in it the admirable system which it in fact proved to be when put into operation; secondly, those who, like most of the statesmen who made it, believed it to be the best attainable government that could be adopted by the people of the United States, overlooking defects which they acknowledged, or trusting to the power of amendment which it contained; and, thirdly, the mercantile and manufacturing classes, who regarded its commercial and revenue powers with great favor. Its adversaries were those who had always opposed any enlargement of the federal system; those whose consequence as politicians would be diminished by the establishment of a government able to attract into its service the highest classes of talent and character, and presenting a service distinct from that of the States; those who conscientiously believed its provisions and powers dangerous to the rights of the States and to public liberty; and, finally, those who were opposed to any government, whether State or national or federal, that would have vigor and energy enough to protect the rights of property, to prevent schemes of plunder in the form of paper money, and to bring about the discharge of public and private debts. The different opponents of the Constitution being animated by these various motives, great care should be taken by posterity, in estimating the conduct of individuals, not to confound these classes with each other, although they were often united in action.
As the Constitution presented itself to the people in the light of a proposal to enlarge and reconstruct the system of the Federal Union, its advocates became known as the "Federalists," and its adversaries as the "Anti-Federalists." This celebrated designation of Federalist, which afterwards became so renowned in our political history as the name of a party, signified at first nothing more than was implied in the title of the essays which passed under that name, namely, an advocacy of the Constitution of the United States.[397]
Midway between the active friends and opponents of the Constitution lay that great and somewhat inert mass of the people, which, in all free countries, finally decides by its preponderance every seemingly doubtful question of political changes. It was composed of those who had no settled convictions or favorite theories respecting the best form of a general government, and who were under the influence of no other motive than a desire for some system that would relieve their industry from the oppressions under which it had long labored, and would give security, peace, and dignity to their country. Ardently attached to the principles of republican government and to their traditionary maxims of public liberty, and generally feeling that their respective States were the safest depositaries of those principles and maxims, this portion of the people of the United States were likely to be much influenced by the arguments against the Constitution founded on its want of what was called a Bill of Rights, on its omission to secure a trial by jury in civil cases, and on the other alleged defects which were afterwards corrected by the first ten Amendments. But they had great confidence in the principal framers of the instrument, an unbounded reverence for Washington and Franklin, and a willingness to try any experiment sanctioned by men so illustrious and so entirely incapable of any selfish or unworthy purpose.[398] There were, however, considerable numbers of the people, in the more remote districts of several of the States, who had a very imperfect acquaintance, if they had any, with the details of the proposed system, at the time when their legislatures were called upon to provide for the assembling of conventions; for we are not to suppose that what would now be the general and almost instantaneous knowledge of any great political event or topic, could have taken place at that day concerning the proposed Constitution of the United States. Still it was quite generally understood before its final ratification in the States where its adoption was postponed to the following year, where information was most wanted, and where the chief struggles occurred; and it is doubtless correct to assert that its adoption was the intelligent choice of a majority of the people of each State, as well as the choice of their delegates, when their conventions successively acted upon it.
On the adjournment of the Convention, Madison, King, and Gorham, who held seats in the Congress of the Confederation, hastened to the city of New York, where that body was then sitting. They found eleven States represented.[399] But they found also that an effort was likely to be made, either to arrest the Constitution on its way to the people of the States, or to subject it to alteration before it should be sent to the legislatures. It was received by official communication from the Convention in about ten days after that assembly was dissolved. All that was asked of the Congress was, that they should transmit it to their constituent legislatures for their action. The old objection, that the Congress could with propriety participate in no measure designed to change the form of a government which they were appointed to administer, having been answered, Richard Henry Lee of Virginia proposed to amend the instrument by inserting a Bill of Rights, trial by jury in civil cases, and other provisions in conformity with the objections which had been made in the Convention by Mr. Mason.
To the address and skill of Mr. Madison, I think, the defeat of this attempt must be attributed. If it had succeeded, the Constitution could never have been adopted by the necessary number of States; for the recommendation of the Convention did not make the action of the State legislatures conditional upon their receiving the instrument from the Congress; the legislatures would have been at liberty to send the document published by the Convention to the assemblies of delegates of the people, without adding provisions that might have been added by the Congress; some of them would have done so, while others would have followed the action of the Congress, and thus there would have been in fact two Constitutions before the people of the States, and their acts of ratification would have related to dissimilar instruments. This consideration induced the Congress, by a unanimous vote of the States present, to adopt a resolution which, while it contained no approval of the Constitution, abstained from interfering with it as it came from the Convention, and transmitted it to the State legislatures, "in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case."[400]
In Massachusetts, the Constitution was well received, on its first publication, so far as its friends in the central portion of the Union could ascertain. Mr. Gerry was a good deal censured for refusing to sign it, and the public voice, in Boston and its neighborhood, appeared to be strongly in its favor. But in a very short time three parties were formed among the people of the State, in such proportions as to make the result quite uncertain. The commercial classes, the men of property, the clergy, the members of the legal profession, including the judges, the officers of the late army, and most of the people of the large towns, were decidedly in favor of the Constitution. This party amounted to three sevenths of the people of the State. The inhabitants of the district of Maine, who were then looking forward to the formation of a new State, would be likely to vote for the new Constitution, or to oppose it, as they believed it would facilitate or retard their wishes; and this party numbered two sevenths. The third party consisted of those who had been concerned in the late insurrection under Shays, and their abettors; the majority of them desiring the annihilation of debts, public and private, and believing that the proposed Constitution would strengthen all the rights of property. Their numbers were estimated at two sevenths of the people.[401] It was evident that a union of the first two parties would secure the ratification of the instrument, and a union of the last two would defeat it. Great caution, conciliation, and good temper were, therefore, required, on the part of its friends. The influence of Massachusetts on Virginia, on New York, and indeed on all the States that were likely to act after her, would be of the utmost importance. The State convention was ordered to assemble in January.
In New York, as elsewhere, the first impressions were in favor of the Constitution. In the city, and in the southern counties generally, it was from the first highly popular. But it was soon apparent that the whole official influence of the executive government of the State would be thrown against it. There had been a strong party in the State, ever since its refusal to bestow on the Congress the powers asked for in the revenue system of 1783, who had regarded the Union with jealousy, and steadily opposed the surrender to it of any further powers. Of this party, the Governor, George Clinton, was now the head; and the government of the State, which embraced a considerable amount of what is termed "patronage," was in their hands. Two of the delegates of the State to the national Convention, Yates and Lansing, had retired from that body before the Constitution was completed, and had announced their opposition to it in a letter to the Governor, which, from its tone and the character of its objections, was likely to produce a strong impression on the public mind. It became evident that the Constitution could be carried in the State of New York in no other way than by a thorough discussion of its merits,—such a discussion as would cause it to be understood by the people, and would convince them that its adoption was demanded by their interests. For this purpose, Hamilton, Madison, and Jay, under the common signature of Publius, commenced the publication of the series of essays which became known as The Federalist. The first number was issued in the latter part of October.
In January, the Governor presented the official communication of the instrument from the Congress to the legislature, with the cold remark, that, from the nature of his official position, it would be improper for him to have any other agency in the business than that of laying the papers before them for their information. Neither he nor his party, however, contented themselves with this abstinence. After a severe struggle, resolutions ordering a State convention to be elected were passed by the bare majorities of three in the Senate and two in the House, on the first day of February, 1788. The elections were held in April; and when the result became known, in the latter part of May, it appeared that the Anti-Federalists had elected two thirds of the members of the Convention, and that probably four sevenths of the people of the State were unfriendly to the Constitution. Backed by this large majority, the leaders of the Anti-Federal party intended to meet in convention at the appointed time, in June, and then to adjourn until the spring or summer of 1789. Their argument for this course was, that, if the Constitution had been adopted in the course of a twelvemonth by nine other States, New York would have an opportunity to witness its operation and to act according to circumstances. They would thus avoid an immediate rejection,—a step which might lead the Federalists to seek a separation of the southern from the northern part of the State, for the purpose of forming a new State. On the other hand, the Federalists rested their hopes upon what they could do to enlighten the public at large, and upon the effect on their opponents of the action of other States, especially of Virginia, whose convention was to meet at nearly the same time. The Convention of New York assembled at Poughkeepsie,[402] on the 17th of June, 1788.
However strong the opposition in other States, it was to be in Virginia far more formidable, from the abilities and influence of its leaders, from the nature of their objections, and from the peculiar character of the State. Possessed of a large number of men justly entitled to be regarded then and always as statesmen, although many of them were prone to great refinements in matters of government; filled with the spirit of republican freedom, although its polity and manners were marked by several aristocratic features; having, on the one hand, but few among its citizens interested in commerce, and still fewer, on the other hand, of those levelling and licentious classes which elsewhere sought to overturn or control the interests of property; ever ready to lead in what it regarded as patriotic and demanded by the interests of the Union, but jealous of its own dignity and of the rights of its sovereignty;—the State of Virginia would certainly subject the Constitution to as severe an ordeal as it could undergo anywhere, and would elicit in the discussion all the good or the evil that could be discovered in the examination of a system before it had been practically tried. The State was to feel, it is true, the almost overshadowing influence of Washington, in favor of the new system, exerted, not by personal participation in its proceedings, but in a manner which could leave no doubt respecting his opinion. But it was also to feel the strenuous opposition of Patrick Henry, that great natural orator of the Revolution, whose influence over popular assemblies was enormous, and who added acuteness, subtilty, and logic to the fierce sincerity of his unstudied harangues, although his knowledge was meagre and his range of thought circumscribed; and the not less strenuous or effective opposition of George Mason, who had little of the eloquence and passion of his renowned compatriot, but who was one of the most profound and able of all the American statesmen opposed to the Constitution, while he was inferior in general powers and resources to not more than two or three of those who framed or advocated it. Richard Henry Lee, William Grayson, Benjamin Harrison, John Tyler, and others of less note, were united with Henry and Mason in opposing the Constitution. Its leading advocates were to be Madison, Marshall, the future Chief Justice of the United States, George Nicholas, and the Chancellor Pendleton. The Governor, Edmund Randolph, occupied for a time a middle position between its friends and its opponents, but finally gave to it his support, from motives which I have elsewhere described as eminently honorable and patriotic.
One of the most distinguished of the public men of Virginia had been absent in the diplomatic service of the country for three years. His eminent abilities and public services, his national reputation, and the influence of his name, naturally made both parties anxious to claim the authority of Jefferson, and he was at once furnished with a copy of the Constitution as soon as it appeared. In the heats of subsequent political conflicts he has been often charged by his opponents with a general hostility to the Constitution. The truth is, that Mr. Jefferson's opinions on the subject of government, and of what was desirable and expedient to be done in this country, united with the effect of his long absence from home,[403] did lead him, at first, to think and to say that the Constitution had defects which, if not corrected, would destroy the liberties of America. He was by far the most democratic, in the tendency of his opinions, of all the principal American statesmen of that age. He was, according to his own avowal, no friend to an energetic government anywhere. He carried abroad the opinion that the Confederation could be adapted, with a few changes, to all the wants of the Union; and this opinion he continued to retain, because the events which had taken place here during his absence did not produce upon his mind the effect which they produced upon the great majority of public men who remained in the midst of them. He freely declared to more than one of his correspondents in Virginia, at this time, that such disorders as had been witnessed in Massachusetts were necessary to public liberty, and that the national Convention had been too much influenced by them, in preparing the Constitution. He held that the natural progress of things is for liberty to lose and for government to gain ground; and that no government should be organized without those express and positive restraints which will jealously guard the liberties of the people, even if those liberties should periodically break into licentiousness. One of his favorite maxims of government was "rotation in office"; and he thought the government of the Union should have cognizance only of matters involved in the relations of the people of each State to foreign countries, or to the people of the other States, and that each State should retain the exclusive control of all its internal and domestic concerns, and especially the power of direct taxation.
Hence it is not surprising that, when Mr. Jefferson received at Paris, early in November, a copy of the Constitution, and when he found in it no express declarations insuring the freedom of religion, freedom of the press, and freedom of the person under the uninterrupted protection of the habeas corpus, and no trial by jury in civil cases, and found also that the President would be re-eligible, and that the government would have the power of direct taxation, his anxiety should have been excited. It is a mistake, however, to suppose that he counselled a direct rejection of the instrument by the people of Virginia. His first suggestion was, that the nine States which should first act upon it should adopt it, unconditionally, and that the four remaining States should accept it only on the previous condition that certain amendments should be made. This plan of his became known in Virginia in the course of the winter of 1787-88, and it gave the Anti-Federalists what they considered a warrant for using his authority on their side. But before the following spring, when he had had an opportunity to see the course pursued by Massachusetts, he changed his opinion, and authorized his friends to say that he regarded an unconditional acceptance by each State, and subsequent amendments, in the mode provided by the Constitution, as the only rational plan.[404] He also abandoned the opinion that the general government ought not to have the power of direct taxation; but he never receded from his objections founded on the want of a bill of rights, and of trial by jury, and on the re-eligibility of the President.
Immediately after his return to Mount Vernon from the national Convention, Washington sent copies of the Constitution to Patrick Henry, Mason, Harrison, and other leading persons whose opposition he anticipated, with a temperate but firm expression of his own opinion. The replies of these gentlemen furnished him with the grounds of their objections, and at the same time relieved him, as to all of them but Henry, from the apprehension that they might resist the calling of a State convention. Mason and Henry were both members of the legislature. The former was expressly instructed by his constituents of Alexandria county[405] to vote for a submission of the Constitution to the people of the State in convention;—a vote which he would probably have given without instruction, as he declared to General Washington that he should use all his influence for this purpose. Mr. Henry was not instructed, and the friends of the Constitution expected his resistance. The legislature assembled in October, and on the first day of the session, in a very full House, Henry declared, to the surprise of everybody, that the proposed Constitution must go to a popular convention. The elections for such a body were ordered to be held in March and April of the following spring. When they came on, the news that the convention of New Hampshire had postponed their action was employed by the Anti-Federalists, who insisted that this step had been taken in deference to Virginia; although it was in fact taken merely in order that the delegates of New Hampshire might get their previous instructions against the Constitution removed by their constituents. The pride of Virginia was touched by this electioneering expedient, and the result was that the parties in the State convention were nearly balanced, the Federalists however having, as they supposed, a majority.[406] The convention was to assemble on the 2d of June, 1788.
In the legislature of South Carolina the Constitution was debated, with great earnestness, for three days, before it was decided to send it to a popular convention. This was owing to the great persistency of Rawlins Lowndes, who carried on the discussion in opposition to the Constitution, almost single-handed and with great ability, against the two Pinckneys, Pierce Butler, John and Edward Rutledge, John Julius Pringle, Robert Barnwell, Dr. David Ramsay, and many other gentlemen. At length, on the 19th of January, a resolution was passed, directing a convention of the people to assemble on the 12th of May. The debate in the legislature had tended to diffuse information respecting the system, but it had also produced a formidable minority throughout the State. Mr. Lowndes had employed, with a good deal of skill, the local arguments which would be most likely to form the objections of a citizen of South Carolina. He inveighed against the regulation of commerce, the power over the slave-trade that was to belong to Congress at the end of twenty years, and the preponderance which he contended would be given to the Eastern States by the system of representation in Congress; and although he was ably answered on all points, the effect of the discussion was such, that a large minority was returned to the Convention having a strong hostility to the proposed system.[407]
The legislature of Maryland assembled in December, and directed the delegates who had represented the State in the national Convention to attend and give an account of the proceedings of that assembly. It was in compliance with this direction that Luther Martin laid before the legislature that celebrated communication which embodied not only a very clear statement of the mode in which the principal compromises of the Constitution were framed, as seen from the point of view occupied by one who resisted them at every step, but also an exceedingly able argument against the fundamental principle of the proposed government. It was a paper, too, marked throughout with an earnestness almost amounting to fanaticism. Repelling, with natural indignation and dignity, the imputation that he was influenced by a State office which he then held, he referred to the numerous honors and emoluments which the Constitution of the United States would create, and suggested—what his abilities and reputation well justified—that his chance of obtaining a share of them was as good as most men's. "But this," was his solemn conclusion, "I can say with truth,—that so far was I from being influenced in my conduct by interest, or the consideration of office, that I would cheerfully resign the appointment I now hold; I would bind myself never to accept another, either under the general government or that of my own State; I would do more, sir;—so destructive do I consider the present system to the happiness of my country, I would cheerfully sacrifice that share of property with which Heaven has blessed a life of industry; I would reduce myself to indigence and poverty; and those who are dearer to me than my own existence, I would intrust to the care and protection of that Providence who hath so kindly protected myself,—if on those terms only I could procure my country to reject those chains which are forged for it."
Such a strength of conviction as this, on the part of a man of high talent, was well calculated to produce an effect. No document that appeared anywhere, against the Constitution, was better adapted to rouse the jealousy, to confirm the doubts, or to decide the opinions, of a certain class of minds. But it was an argument which reduced the whole question substantially to the issue, whether the principle of the Union could safely be changed from that of a federal league, with an equality of representation and power as between the States, to a system of national representation in a legislative body having cognizance of certain national interests, in one branch of which the people inhabiting the respective States should have power in proportion to their numbers.[408] This was a question on which men would naturally and honestly differ; but it was a question which a majority of reflecting men, in almost every State, were likely, after due inquiry, to decide against the views of Mr. Martin, because it was clear that the Confederation had failed, and had failed chiefly by reason of the peculiar and characteristic nature of its representative system, and because the representative system proposed in the Constitution was the only one that could be agreed upon as the alternative. Mr. Martin's objections, however, like those of other distinguished men who took the same side in other States, were of a nature to form the creed of an earnest, conscientious, and active minority. They had this effect in the State of Maryland. The legislature ordered a State convention, to consider the proposed Constitution, and directed it to meet on the 21st of April, 1788.
The convention of New Hampshire was to assemble in February. A large portion of the State lay remote from the channels of intelligence, and a considerable part of the people in the interior had not seen the Constitution, when they were called upon to elect their delegates. The population, outside of two or three principal places, was a rural one, thinly scattered over townships of large territorial extent, lying among the hills of a broken and rugged country, extending northerly from the narrow strip of sea-coast towards the frontier of Canada. It was easy for the opposition to persuade such a people that a scheme of government had been prepared which they ought to reject; and the consequence of their efforts was that the State convention assembled, probably with a majority, certainly with a strong minority, of its members bound by positive instructions to vote against the Constitution which they were to consider.
I have thus, in anticipation of the strict order of events, given a general account of the position of this great question in six of the States, down to the time of the meeting of their respective conventions, because when the session of the convention of Massachusetts commenced, in January, 1788, the people of the five States of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut had successively ratified the Constitution without proposing any amendments, and because the action of the others, extending through the six following months, embraced the real crisis to which the Constitution was subjected, and developed what were thereafter to be considered as its important defects, according to the view of a majority of the States, and probably also of a majority of the people of all the States. For although the people of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut ratified the Constitution without insisting on previous or subsequent amendments, it is certain that some of the same topics were the causes of anxiety and objection in those States, which occasioned so much difficulty, and became the grounds of special action, in the remaining States.
In coming, however, to the more particular description of the resistance which the Constitution encountered, it will be necessary to discriminate between the opposition that was made to the general plan of the government, or to the particular features of it which it was proposed to create, and that which was founded on its omission to provide for certain things that were deemed essential. Of what may be called the positive objections to the Constitution, it may be said, in general, that, however fruitful of debate, or declamation, or serious and important doubt, might be the question whether such a government as had been framed by the national Convention should be substituted for the Confederation, the opposition were not confined to this question, as the means of persuading the people that the proposed system ought to be rejected. One of the most deeply interested of the men who were watching the currents of public opinion with extreme solicitude, observed "a strong belief in the people at large of the insufficiency of the Confederation to preserve the existence of the Union, and of the necessity of the Union to their safety and prosperity; of course, a strong desire of a change, and a predisposition to receive well the propositions of the Convention."[409] But while the Constitution came before the people with this conviction and this predisposition in its favor, yet when its opponents, in addition to their positive objections to what it did contain, could point to what it did not embrace, and could say that it proposed to establish a government of great power, without providing for rights of primary importance, and without any declaration of the cardinal maxims of liberty which the people had from the first been accustomed to incorporate with their State constitutions; and while the local interests, the sectional feelings, and the separate policy, real or supposed, of different States, furnished such a variety of means for defeating its adoption by the necessary number of nine States;—we may not wonder that its friends should have been doubtful of the issue. "It is almost arrogance," said the same anxious observer, "in so complicated a subject, depending so entirely upon the incalculable fluctuations of the human passions, to attempt even a conjecture about the result."[410]