The Critical Period of American History

by John Fiske

Powers granted to the federal government.

In the grants to the federal government of powers hitherto reserved to the several states, the diversity of opinion among the members of the convention was but slight compared to the profound antagonism which had been allayed by the three initial compromises. It was admitted, as a matter of course, that the federal government alone could coin money, fix the standard of weights and measures, establish post-offices and post-roads, and grant patents and copyrights. To it alone was naturally intrusted the whole business of war and of international relations. It could define and punish felonies committed on the high seas; it could maintain a navy and issue letters of marque and reprisal; it could support an army and provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions. But in relation to this question of the army and the militia there was some characteristic discussion. It was at first proposed that Congress should have the power "to subdue a rebellion in any state on the application of its legislature." The Shays rebellion was then fresh in the memory of all the delegates, and their arguments simply reflected the impression which that unpleasant affair had left upon them. Charles Pinckney, Gouverneur Morris, and John Langdon wished to have the power given to Congress unconditionally, without waiting for an application from the legislature. But Gerry, who had been on the ground, spoke sturdily against such a needless infraction of state rights. He was utterly opposed, he said, to "letting loose the myrmidons of the United States on a state without its own consent. The states will be the best judges in such cases. More blood would have been spilt in Massachusetts in the late insurrection if the general authority had intermeddled." Ellsworth suggested that Congress should use its discretion only in cases where the legislature of the state could not meet; but Randolph forcibly replied that if Congress is to judge whether a state legislature can or cannot meet, the difficulty is in no wise surmounted. Gerry's view at last prevailed, and in accordance therewith it was decided that the federal power should guarantee to every state a republican form of government, and should protect each of them against invasion; and on application of the legislature, or of the executive (if the legislature could not be convened), it should protect them against domestic violence. This arrangement did not fully provide against such an emergency as that of rival and hostile executives in the same state, as under the so-called "carpet-bag" governments which followed after the War of Secession, but it was doubtless as sound a provision as any general constitution could make.

The federal government was further empowered to borrow money on the credit of the United States; and it was declared that all debts contracted and engagements entered into before the adoption of this constitution should be as valid against the United States under this constitution as under the confederation. There was to be no repudiation or readjustment of debts on the ground of inability to pay. Congress was further empowered to establish a uniform rule of naturalization and a uniform law of bankruptcy. But it was prohibited from passing bills of attainder or ex post facto laws, or suspending the writ of habeas corpus, except under the stress of rebellion or invasion. It was provided that all duties, imposts, or excises should be uniform throughout the United States. The federal government could not give preference to one state over another in its commercial regulations. It could not tax exports. It could not draw money from the treasury save by due process of appropriation, and all bills relating to the raising of revenue must originate in the lower house, which directly represented the people. Congress was empowered to admit new states into the Union, but it was not allowed to interfere with the territorial areas of states already existing without the express consent of the local legislatures. To insure the independence of the federal government, it was provided that senators and representatives should be paid out of the federal treasury, and not by their respective states, as had been the case under the confederation. Except for such offences as treason, felony, or breach of the peace, they should be "privileged from arrest during their attendance, at the session of their respective houses, and in going to or returning from the same; and for any speech or debate in either house" they were not to be "questioned in any other place." It was further provided that a territory not exceeding ten miles square should be ceded to the United States, and set apart as the site of a federal city, in which the general government should ever after hold its meetings, erect its buildings, and exercise exclusive jurisdiction. During the past four years the Continental Congress had skipped about from Philadelphia to Princeton, to Annapolis, to Trenton, to New York, until it had become a laughing-stock, and the newspapers were full of squibs about it. Verily, said one facetious editor, the Lord shall make this government like unto a wheel, and keep it rolling back and forth betwixt Dan and Beersheba, and grant it no rest this side of Jordan. This inconvenience was now to be remedied. Congress was hereafter to have a federal police force at its disposal, and was never more to be reduced to the humiliation of a fruitless appeal to the protecting arm of a state government, as at Philadelphia in the summer of 1783. Furthermore, the Continental Congress had of late years commanded so little respect, and had offered so few temptations to able men in quest of political distinction, that its meetings were often attended by no more than eight or ten members. It was actually on the point of dying a natural death through sheer lack of public interest in it. To prevent any possible continuance of such a disgraceful state of things, it was agreed that the Federal Congress should be "authorized to compel the attendance of absent members, in such manner and under such penalties as each house may provide." Had the political life of the country continued to go on as under the confederation, it is very doubtful whether such a provision as this would have remedied the evil. But the new Federal Congress, drawing its life directly from the people, was destined to afford far greater opportunities for a political career than were afforded by the feeble body of delegates which preceded it; and a penal clause, compelling members to attend its meetings, was hardly needed under the new circumstances which arose.

Powers denied to the states.

Emphatic condemnation of paper money.

While the powers of the federal government were thus carefully defined, at the same time several powers were expressly denied to the states. No state was allowed, without explicit authority from Congress, to lay any tonnage or custom-house duties, "keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delays." The following clause provided against a recurrence of some of the worst evils which had been felt under the "league of friendship:" "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." Henceforth there was to be no repetition of such disgraceful scenes as had lately been witnessed in Rhode Island. So far as the state legislatures were concerned, paper money was to be ruled out forever. But how was it with the federal government? By the articles of confederation the United States were allowed to issue bills of credit, and make them a tender in payment of debts. In the Federal Convention the committee of detail suggested that this permission might remain under the new constitution; but the suggestion was almost unanimously condemned. All the ablest men in the convention spoke emphatically against it. Gouverneur Morris urged that the federal government, no less than the state governments, should be expressly prohibited from issuing bills of credit, or in any wise making its promissory notes a legal tender. He went over the history of the past ten years; he called attention to the obstinacy with which the wretched device had been resorted to again and again, after its evils had been thrust before everybody's eyes; and he proved himself a true prophet when he said that if the United States should ever again have a great war to conduct, people would have forgotten all about these things, and would call for fresh issues of inconvertible paper, with similar disastrous results. Now was the time to stop it once for all. "Yes," echoed Roger Sherman, "this is the favourable crisis for crushing paper money." "This is the time," said his colleague, Ellsworth, "to shut and bar the door against paper money, which can in no case be necessary. Give the government credit, and other resources will offer. The power may do harm, never good." There was no way, he added, in which powerful friends could so soon be gained for the new constitution as by withholding this power from the government. James Wilson took the same view. "It will have the most salutary influence on the credit of the United States," said he, "to remove the possibility of paper money." "Rather than grant the power to Congress," said John Langdon, "I would reject the whole plan." "The words which grant this power," said George Read of Delaware, "if not struck out, will be as alarming as the mark of the Beast, in the Apocalypse." On none of the subjects that came up for discussion during that summer was the convention more nearly unanimous than in its condemnation of paper money. The only delegate who ventured to speak in its favour was Mercer of Maryland. What Hamilton would have said, if he had been present that day, we may judge from his vigorous words published some time before. The power to emit an inconvertible paper as a sign of value ought never hereafter to be used; for in its very nature, said he, it is "pregnant with abuses, and liable to be made the engine of imposition and fraud, holding out temptations equally pernicious to the integrity of government and to the morals of the people." Paterson called it "sanctifying iniquity by law." The same views were entertained by Washington and Madison. There were a few delegates, however, who thought it unsafe to fetter Congress absolutely. To use Luther Martin's expression, they did not set themselves up to be "wise beyond every event." George Mason said he "had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. The late war," he thought, "could not have been carried on had such a prohibition existed." Randolph spoke to the same effect. It was finally decided, by the vote of nine states against New Jersey and Maryland, that the power to issue inconvertible paper should not be granted to the federal government. An express prohibition, such as had been adopted for the separate states, was thought unnecessary. It was supposed that it was enough to withhold the power, since the federal government would not venture to exercise it unless expressly permitted in the Constitution. "Thus," says Madison, in his narrative of the proceedings, "the pretext for a paper currency, and particularly for making the bills a tender, either for public or private debts, was cut off." Nothing could be more clearly expressed than this. As Mr. Justice Field observes, in his able dissenting opinion in the recent case of Juilliard vs. Greenman, "if there be anything in the history of the Constitution which can be established with moral certainty, it is that the framers of that instrument intended to prohibit the issue of legal-tender notes both by the general government and by the states, and thus prevent interference with the contracts of private parties." Such has been the opinion of our ablest constitutional jurists, Marshall, Webster, Story, Curtis, and Nelson. There can be little doubt that, according to all sound principles of interpretation, the Legal Tender Act of 1862 was passed in flagrant violation of the Constitution. Could Ellsworth and Morris, Langdon and Madison, have foreseen the possibility of such extraordinary judgments as have lately emanated from the Supreme Court of the United States, they would doubtless have insisted upon the express prohibition, instead of leaving it to posterity to root out the plague, as it will apparently some time have to do, by the cumbrous process of an amendment to the Constitution.

The work of the convention, as thus far considered, related to the legislative department of the new government. While these discussions were going on, much attention had been paid, from time to time, to the characteristics of the proposed federal executive. The debates on this question, though long kept up, were far less acrimonious than the debates on representation and the power of Congress over trade, because here there was no obvious clashing of local interests. But for this very reason the convention had no longer so clear a chart to steer by. On the question of the slave-trade, the Pinckneys knew accurately just what South Carolina wanted, how much it would do to claim, and how far it would be necessary to yield. As to the regulation of commerce by a bare majority of votes in Congress, King and Sherman on the one hand, Mason and Randolph on the other, were able to pursue a thoroughly definite course of action in behalf of what were supposed to be the special interests of New England or of Virginia. Consequently, the debates kept close to the point; the controversy was keen, and sometimes, as we have seen, angry.

Debates as to the federal executive.

It was very different with the question as to the federal executive. Upon this point the discussions were guided rather by general speculations as to what would be most likely to work well, and accordingly they wandered far and wide. Some of the delegates seemed to think we should sooner or later come to adopt a hereditary monarchy, and that the chief thing to be done was to postpone the event as long as possible. Many wild ideas were broached: such, for example, as a triple-headed executive, to represent the eastern, middle, and southern states, somewhat as associated Roman emperors at times administered affairs in the different portions of an undivided empire. The Virginia plan had not stated whether its proposed executive was to be single or plural, because the Virginia delegates could not agree. Madison wished it to be single, to insure greater efficiency, but to Randolph and Mason a tyranny seemed to lurk in such an arrangement. When James Wilson and Charles Pinckney suggested that the executive power should be intrusted into the hands of one man, a profound silence fell upon the convention. No one spoke for several minutes, until Washington, from the chair, asked if he should put the question. Franklin then got up, and said it was an interesting subject, and he should like to hear what the members had to say; and so the ball was set rolling. Rutledge said there was no need of their being so shy. A man might frankly express his opinions, and afterwards change them if he saw good reason for so doing. For his part, he was in favour of vesting the executive power in a single person, to secure efficiency of administration and concentration of responsibility; but he would not give him the power to declare war and make peace. Sherman then made the far-reaching suggestion, that the executive magistracy was really "nothing more than an institution for carrying the will of the legislature into effect; that the person or persons ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society. As they were the best judges of the business which ought to be done by the executive department, ... he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more, as experience might dictate." It would greatly have astonished the convention had they been told that this suggestion of Sherman's was a move in the very same line of development which the British government had been following for more than half a century; yet such, as we shall presently see, was the case. Had this point been understood then as we understand it now, the proceedings of the convention could not have failed to be profoundly affected by it. As it was, the suggestion did not receive due attention, and the stream of discussion was turned into a very different channel. Wilson argued powerfully in favour of a single chief magistrate, and this view finally prevailed.