History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 / With Notices of Its Principle Framers

by George Ticknor Curtis

Arrived at Annapolis, Hamilton found there the representatives of five States only.[367] He had come with the determination that the Convention should lay before the country the whole subject of the condition of the States and the want of an efficient federal government. But the avowed purpose of the meeting was solely to consider the means of establishing a uniform system of commercial regulations, and not to reform the existing government of the Union. New Jersey alone, of the five States represented, had empowered her commissioners to consider of "other important matters," in addition to the subject of commercial regulations. Four other States had appointed commissioners, none of whom had attended; and the four remaining States had made no appointments at all.[368]

Under these circumstances, it was certainly a matter of great delicacy for the commissioners of five States only to pass upon the general situation of the Union, and to pronounce its existing government defective and insufficient. Hamilton, however, felt that this opportunity, once lost, might never occur again; and although willing to waive his original purpose of a full exposition of the defects of the Confederation, he did not deem it expedient that the Convention should adjourn without proposing to the country some measure that would lead to the necessary reforms. He modified his original plan, therefore, and laid before his colleagues a report, which formally proposed to the several States the assembling of a general convention, to take into consideration the situation of the United States.

In this document, it was declared that the regulation of trade, which had been made the object of the meeting at Annapolis, could not be effected alone, for the power of regulating commerce would enter so far into the general system of the federal government, that it would require a corresponding adjustment of the other parts of the system. That the system of the general government was seriously defective; that those defects were likely to be found greater on a close inspection; that they were the cause of the embarrassments which marked the state of public affairs, foreign and domestic; and that some mode by which they could be peaceably supplied was imperatively demanded by the public necessities,—were propositions which the country was then prepared to receive. A convention of deputies from the different States, for the special and sole purpose of investigating the defects of the national government, seemed to be the course entitled to preference over all others.[369]

It was indeed the only method by which the object of the great statesman who drafted this report could have been reached. The Articles of Confederation had provided, that they should be inviolably observed by every State; that the Union should be perpetual; and that no alteration should be made in any of the Articles, unless agreed to in a Congress of the United States, and confirmed by the legislature of every State.[370] To have left the whole subject to the action of Congress would have insured, at most, only a change in some of the features of the existing government, instead of the great reform which Hamilton believed to be essential,—the substitution of a totally different system. At the same time, the coöperation and assent of Congress were necessary to the success of the plan of a convention, in order that it might not seem to be a violent departure from the provisions of the Articles of Confederation, and also for the sake of their influence with the States. The proposal of the report was therefore cautious. It did not suggest the summoning of a convention to frame a new constitution of government, but "to devise such further provisions as might appear to be necessary to render the constitution of the federal government adequate to the exigencies of the Union." It proposed also, that whatever reform should be agreed on by the convention should be reported to Congress, and, when agreed to by them, should be confirmed by the legislatures of all the States. In this manner, the proposal avoided any seeming violence to the Articles of Confederation, and suggested the convention as a body to prepare for the use of Congress a plan to be adopted by them for submission to the States.[371]

At the same time, Hamilton undoubtedly contemplated more than any amendment of the existing constitution. In 1780, he had analyzed the defects of the general government, sketched the outline of a Federal Constitution, and suggested the calling of a convention to frame such a system.[372] The idea of such a convention was undoubtedly entertained, by many persons, before the meeting at Annapolis. It had been recommended by the legislature of New York in 1782, and by that of Massachusetts in 1785. But Hamilton had foreseen its necessity in 1780, more than seven years before the meeting at Annapolis; and, although he may not have been the author of the first public proposal of such a measure, his private correspondence contains the first suggestion of it, and proves that he had conceived the main features of the Constitution of the United States, even before the Confederation itself was established.[373]

The recommendation of the Annapolis commissioners was variously received. In the legislature of Virginia it met with a cordial approval, and an act was passed during the autumn to provide for the appointment of delegates to the proposed convention. In Congress, it was received at first with little favor. Doubts were entertained there whether any changes in the federal government could be constitutionally made, unless they were to originate in Congress and were then to be adopted by the legislatures of the States, pursuant to the mode provided by the Articles of Confederation. The legislatures, it was argued, could not adopt any scheme that might be proposed by a convention; and if it were submitted to the people, it was not only doubtful what degree of assent on their part would make it valid, but it was also doubtful whether they could change the Federal Constitution by their own direct action. To these difficulties was to be added the further hazard, that, if the report of the convention should be made to Congress, as proposed, they might not finally adopt it, and if it should be rejected, that fatal consequences would ensue.[374]

The report of the Annapolis commissioners was, however, taken into consideration; and in the course of the following winter a report upon it was made in Congress, which conceded the fact that the Confederation required amendments, and that the proposed convention was the most eligible mode of effecting them.[375] But this report had to encounter the objection, entertained by many members, that the measure proposed would tend to weaken the federal authority, by lending the sanction of Congress to an extra-constitutional proceeding. Others considered that a more summary mode of proceeding was advisable, in the form of a direct appeal to the people of every State to institute State conventions, which should choose delegates to a general convention, to revise and amend, or change, the federal system, and to publish the new constitution for general observance, without any reference to the States, for their acceptance or confirmation.[376] There were still others, who preferred that Congress should take up the defects of the existing system, point them out to the legislatures of the States, and recommend certain distinct alterations to be adopted by them.[377]

It was no doubt true, that a convention originating with the State legislatures was not a mode pointed out by the Articles of Confederation for effecting amendments to that instrument. But it was equally true, that the mere amendment of that instrument was not what the critical situation of the country required. On the other hand, a convention originating with the people of the States would undoubtedly rest upon the authority of the people, in its inception; but, if the system which it might frame were to go into operation without first being adopted by the people, it would as certainly want the true basis of their consent. These difficulties were felt in and out of Congress. But it does not seem to have occurred to those who raised them, that the source from which the convention should derive its powers to frame and recommend a new system of government was of far less consequence, than that the mode in which the system recommended should be adopted, should be one that would give it the full sanction and authority of the people themselves. A constitution might be framed and recommended by any body of individuals, whether instituted by the legislatures or by the people of the States; but if adopted and ordained by the States in their corporate capacities, it would rest on one basis, and if adopted and ordained by the people of the States, acting upon it directly and primarily, it would obviously rest upon another, a different, and a higher authority.

The latter mode was not contemplated by Congress when they acted upon the recommendation of the Annapolis commissioners. Accustomed to no other idea of a union than that formed by the States in their corporate capacities as distinct and sovereign communities; belonging to a body constituted by the States, and therefore officially related rather to the governments than to the people of the States; and entertaining a becoming and salutary fear of departing from a constitution which they had been appointed to administer,—the members of the Congress of 1786-87 were not likely to go beyond the Annapolis recommendation, which in fact proposed that the new system should be confirmed by the legislatures of the States.