History of the United States

by Charles A. Beard; Mary Ritter Beard

The system, however, had its defenders. Representatives from South Carolina argued that their entire economic life rested on slave labor and that the high death rate in the rice swamps made continuous importation necessary. Ellsworth of Connecticut took the ground that the convention should not meddle with slavery. "The morality or wisdom of slavery," he said, "are considerations belonging to the states. What enriches a part enriches the whole." To the future he turned an untroubled face: "As population increases, poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our country." Virginia and North Carolina, already overstocked with slaves, favored prohibiting the traffic in them; but South Carolina was adamant. She must have fresh supplies of slaves or she would not federate.

So it was agreed that, while Congress might regulate foreign trade by majority vote, the importation of slaves should not be forbidden before the lapse of twenty years, and that any import tax should not exceed $10 a head. At the same time, in connection with the regulation of foreign trade, it was stipulated that a two-thirds vote in the Senate should be necessary in the ratification of treaties. A further concession to the South was made in the provision for the return of runaway slaves—a provision also useful in the North, where indentured servants were about as troublesome as slaves in escaping from their masters.

The Form of the Government.—As to the details of the frame of government and the grand principles involved, the opinion of the convention ebbed and flowed, decisions being taken in the heat of debate, only to be revoked and taken again.

The Executive.—There was general agreement that there should be an executive branch; for reliance upon Congress to enforce its own laws and treaties had been a broken reed. On the character and functions of the executive, however, there were many views. The New Jersey plan called for a council selected by the Congress; the Virginia plan provided that the executive branch should be chosen by the Congress but did not state whether it should be composed of one or several persons. On this matter the convention voted first one way and then another; finally it agreed on a single executive chosen indirectly by electors selected as the state legislatures might decide, serving for four years, subject to impeachment, and endowed with regal powers in the command of the army and the navy and in the enforcement of the laws.

The Legislative Branch—Congress.—After the convention had made the great compromise between the large and small commonwealths by giving representation to states in the Senate and to population in the House, the question of methods of election had to be decided. As to the House of Representatives it was readily agreed that the members should be elected by direct popular vote. There was also easy agreement on the proposition that a strong Senate was needed to check the "turbulence" of the lower house. Four devices were finally selected to accomplish this purpose. In the first place, the Senators were not to be chosen directly by the voters but by the legislatures of the states, thus removing their election one degree from the populace. In the second place, their term was fixed at six years instead of two, as in the case of the House. In the third place, provision was made for continuity by having only one-third of the members go out at a time while two-thirds remained in service. Finally, it was provided that Senators must be at least thirty years old while Representatives need be only twenty-five.

The Judiciary.—The need for federal courts to carry out the law was hardly open to debate. The feebleness of the Articles of Confederation was, in a large measure, attributed to the want of a judiciary to hold states and individuals in obedience to the laws and treaties of the union. Nevertheless on this point the advocates of states' rights were extremely sensitive. They looked with distrust upon judges appointed at the national capital and emancipated from local interests and traditions; they remembered with what insistence they had claimed against Britain the right of local trial by jury and with what consternation they had viewed the proposal to make colonial judges independent of the assemblies in the matter of their salaries. Reluctantly they yielded to the demand for federal courts, consenting at first only to a supreme court to review cases heard in lower state courts and finally to such additional inferior courts as Congress might deem necessary.

The System of Checks and Balances.—It is thus apparent that the framers of the Constitution, in shaping the form of government, arranged for a distribution of power among three branches, executive, legislative, and judicial. Strictly speaking we might say four branches, for the legislature, or Congress, was composed of two houses, elected in different ways, and one of them, the Senate, was made a check on the President through its power of ratifying treaties and appointments. "The accumulation of all powers, legislative, executive, and judicial, in the same hands," wrote Madison, "whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The devices which the convention adopted to prevent such a centralization of authority were exceedingly ingenious and well calculated to accomplish the purposes of the authors.

The legislature consisted of two houses, the members of which were to be apportioned on a different basis, elected in different ways, and to serve for different terms. A veto on all its acts was vested in a President elected in a manner not employed in the choice of either branch of the legislature, serving for four years, and subject to removal only by the difficult process of impeachment. After a law had run the gantlet of both houses and the executive, it was subject to interpretation and annulment by the judiciary, appointed by the President with the consent of the Senate and serving for life. Thus it was made almost impossible for any political party to get possession of all branches of the government at a single popular election. As Hamilton remarked, the friends of good government considered "every institution calculated to restrain the excess of law making and to keep things in the same state in which they happen to be at any given period as more likely to do good than harm."

The Powers of the Federal Government.—On the question of the powers to be conferred upon the new government there was less occasion for a serious dispute. Even the delegates from the small states agreed with those from Massachusetts, Pennsylvania, and Virginia that new powers should be added to those intrusted to Congress by the Articles of Confederation. The New Jersey plan as well as the Virginia plan recognized this fact. Some of the delegates, like Hamilton and Madison, even proposed to give Congress a general legislative authority covering all national matters; but others, frightened by the specter of nationalism, insisted on specifying each power to be conferred and finally carried the day.

Taxation and Commerce.—There were none bold enough to dissent from the proposition that revenue must be provided to pay current expenses and discharge the public debt. When once the dispute over the apportionment of direct taxes among the slave states was settled, it was an easy matter to decide that Congress should have power to lay and collect taxes, duties, imposts, and excises. In this way the national government was freed from dependence upon stubborn and tardy legislatures and enabled to collect funds directly from citizens. There were likewise none bold enough to contend that the anarchy of state tariffs and trade discriminations should be longer endured. When the fears of the planting states were allayed and the "bargain" over the importation of slaves was reached, the convention vested in Congress the power to regulate foreign and interstate commerce.