The Critical Period of American History

CHAPTER VI.

THE FEDERAL CONVENTION

Difficult problem before the convention.

Washington's solemn appeal.

The Federal Convention did wisely in withholding its debates from the knowledge of the people. It was felt that discussion would be more untrammelled, and that its result ought to go before the country as the collective and unanimous voice of the convention. There was likely to be wrangling enough among themselves; but should their scheme be unfolded, bit by bit, before its parts could be viewed in their mutual relations, popular excitement would become intense, there might be riots, and an end would be put to that attitude of mental repose so necessary for the constructive work that was to be done. It was thought best that the scheme should be put forth as a completed whole, and that for several years, even, until the new system of government should have had a fair trial, the traces of the individual theories and preferences concerned in its formation should not be revealed. For it was generally assumed that a system of government new in some important respects would be proposed by the convention, and while the people awaited the result the wildest speculations and rumours were current. A few hoped, and many feared, that some scheme of monarchy would be established. Such surmises found their way across the ocean, and hopes were expressed in England that, should a king be chosen, it might be a younger son of George III. It was even hinted, with alarm, that, through gratitude to our recent allies, we might be persuaded to offer the crown to some member of the royal family of France. No such thoughts were entertained, however, by any person present in the convention. Some of the delegates came with the design of simply amending the articles of confederation by taking away from the states the power of regulating commerce, and intrusting this power to Congress. Others felt that if the work were not done thoroughly now another chance might never be offered; and these men thought it necessary to abolish the confederation, and establish a federal republic, in which the general government should act directly upon the people. The difficult problem was how to frame a plan of this sort which people could be made to understand and adopt. At the very outset some of the delegates began to exhibit symptoms of that peculiar kind of moral cowardice which is wont to afflict free governments, and of which American history furnishes so many instructive examples. It was suggested that palliatives and half measures would be far more likely to find favour with the people than any thorough-going reform, when Washington suddenly interposed with a brief but immortal speech, which ought to be blazoned in letters of gold, and posted on the wall of every American assembly that shall meet to nominate a candidate, or declare a policy, or pass a law, so long as the weakness of human nature shall endure. Rising from his president's chair, his tall figure drawn up to its full height, he exclaimed in tones unwontedly solemn with suppressed emotion, "It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God."

This outburst of noble eloquence carried conviction to every one, and henceforth we do not hear that any attempt was avowedly made to avoid the issues as they came up. It was a most wholesome tonic. It braced up the convention to high resolves, and impressed upon all the delegates that they were in a situation where faltering or trifling was both wicked and dangerous. From that moment the mood in which they worked caught something from the glorious spirit of Washington. There was need of such high purpose, for two plans were presently laid before the meeting, which, for a moment, brought out one of the chief elements of antagonism existing between the states, and which at first seemed irreconcilable. It was the happy compromise which united and harmonised these two plans that smoothed the further work of the convention, and made it possible for a stable and powerful government to be constructed.

The root of all the difficulties.

The first of these plans was known as the Virginia plan. It was agreed upon in a committee of the delegates of that state, and was brought forward by Edmund Randolph, governor of Virginia, in the name of the state, but its chief author was Madison. It struck instantly at the root of the difficulties under which the country had been staggering ever since the Declaration of Independence. The federal government had possessed no means of enforcing obedience to its laws. Its edicts were without a sanction; and this was because they operated upon states, and not upon individuals. When an individual defies the law, you can lock him up in jail, or levy an execution upon his property. The immense force of the community is arrayed against him, and he is as helpless as a straw on the billows of the ocean. He cannot raise a militia to protect himself. But when the law is defied by a state, it is quite otherwise. You cannot put a state into jail, nor seize its goods; you can only make war on it, and if you try that expedient you find that the state is not helpless. Its local pride and prejudices are aroused against you, and its militia will turn out in full force to uphold the infraction of law. Against this obstinate and exasperated military force what superior force can you bring? Under some rare combination of circumstances you might get the military force of several of the other states; but ordinarily, when what you are trying to do is simply to enforce every-day laws, and when you simply represent a distrusted general government in conflict with a local government, you cannot do this. The other states will sympathize with the delinquent state; they will feel that the very same condition of things which leads you to attack that state to-day will lead you to attack some other state to-morrow. Hence you cannot get any military help, and you are powerless.

Such was the case with the Continental Congress. A novel and distrusted institution, it was called upon to enforce its laws upon long-established communities, full of sturdy independence and obstinate local prejudices. It was able to act, though with clumsy slowness, as long as there was an enemy in the field who was even more dreaded. But as soon as this enemy had been beaten out of sight it could not act at all. This had been because it did not represent the American people, but only the American states. The vital force which moved it was not the resistless force of a whole people, but only a shadowy semblance of force, derived from a theoretical consent of thirteen corporate bodies, which in their corporate capacity could never be compelled to agree about anything under the sun; and unless compelled they would not agree. Four years of disturbance in every part of the country, in the course of which troops had been called out in several states, and civil war had been narrowly averted at least half a dozen times, had proved this beyond all cavil. With almost any other people than the Americans civil war would have come already. With all the vast future interests that were involved in these quarrels looming up before their keen, sagacious minds, it was a wonder that they had been kept from coming to blows. Such self-restraint had been greatly to their credit. It was the blessed fruit of more than a century of government by free discussion, while yet these states were colonies, peopled by the very cream of English freemen who had fought the decisive battle of civil and religious freedom for mankind in that long crisis when the Invincible Armada was overwhelmed and the Long Parliament won its triumphs. Such self-restraint had this people shown in days of trial, under a vicious government adopted in a time of hurry and sore distress. But late events had gone far to show that it could not endure.

The words of Randolph's opening speech are worth quoting in this connection. "The confederation," he said, "was made in the infancy of the science of constitutions, when the inefficiency of requisitions was unknown; when no commercial discord had arisen among states; when no rebellion like that in Massachusetts had broken out; when foreign debts were not urgent; when the havoc of paper money had not been foreseen; when treaties had not been violated; and when nothing better could have been conceded by states jealous of their sovereignty. But it offered no security against foreign invasion, for Congress could neither prevent nor conduct a war, nor punish infractions of treaties or of the law of nations, nor control particular states from provoking war. The federal government has no constitutional power to check a quarrel between separate states; nor to suppress a rebellion in any one of them; nor to establish a productive impost; nor to counteract the commercial regulations of other nations; nor to defend itself against the encroachments of the states. From the manner in which it has been ratified in many of the states, it cannot be claimed to be paramount to the state constitutions; so that there is a prospect of anarchy from the inherent laxity of the government. As the remedy, the government to be established must have for its basis the republican principle."

The Virginia plan; a radical cure.

Having thus tersely stated the whole problem, Randolph went on to present the Virginia plan. To make the federal government operate directly upon individuals, one provision was absolutely necessary. It did not solve the whole problem, but it was an indispensable beginning. This was the proposal that there should be a national legislature, in which the American people instead of the American states should be represented. For the purposes of federal legislation, there must be an assembly elected directly by the people, and with its members apportioned according to population. There must be such an assembly as our present House of Representatives, standing in the same immediate relation to the people of the whole country as was sustained by the assembly of each separate state to the people of that state. Without such direct representation of the whole people in the Federal Congress, it would be impossible to achieve one secure step toward the radical reform of the weaknesses and vices of the confederation. It was the only way in which the vexed question of one nation or thirteen could be made to yield a satisfactory answer. At the same time it could not be denied that such a proposal was revolutionary in character. It paved the way for a national consolidation which might go further than any one could foresee, and much further than was desirable. The moribund Congress of the Confederation, with its delegates chosen by the state assemblies, and casting its vote simply by states, had utterly failed to serve as a national legislature. There was a good deal of truth in what John Adams once said of it, that it was more a diplomatic than a legislative body. It was, indeed, because of this consciously felt diplomatic character that it was called a Congress, and not a Parliament. In its lack of coercive power it resembled the international congresses of Europe rather than the supreme legislature of any country. To substitute abruptly for such a body a truly national legislature, based not upon states but upon population, was quietly to inaugurate a revolution of no less magnitude than that which had lately severed us from Great Britain. So bold a step, while all-essential in order to complete that revolution, and make its victorious issue fortunate instead of disastrous to the American people, was sufficiently revolutionary to awaken the fears of many members of the Federal Convention. To the familiar state governments which had so long possessed their love and allegiance, it was super-adding a new and untried government, which it was feared would swallow up the states and everywhere extinguish local independence. Nor can it be said that such fears were unreasonable. Our federal government has indeed shown a strong tendency to encroach upon the province of the state governments, especially since our late Civil War. Too much centralization is our danger to-day, as the weakness of the federal tie was our danger a century ago. The rule of the Federalist party was needed in 1789 as the rule of the Republican party was needed in 1861, to put a curb upon the centrifugal tendencies. But after Federalism had fairly done its great work, at the beginning of the nineteenth century, it was well that the administration of our national affairs should pass into the hands of the party to which Thomas Jefferson and Samuel Adams belonged, and which Madison, in his calm statesmanlike wisdom, had come to join. And now that, in our own day, the disruptive forces have been even more thoroughly and effectually overcome, it is time for the principles of that party to be reasserted with fresh emphasis. If the day should ever arrive (which God forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the states shall have been so far lost as that of the departments of France, or even so far as that of the counties of England, – on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever.

I do not think that the historian writing at the present day need fear any such direful calamity, for the past century has shown most instructively how, in such a society as ours, the sense of political dangers slowly makes its way through the whole mass of the people, until movements at length are made to avert them, and the pendulum swings in the opposite direction. The history of political parties in the United States is especially rich in lessons of this sort. Compared with the statesmen of the Federal Convention, we are at a great advantage in studying this question of national consolidation; and we have no excuse for failing to comprehend the attitude of the men who dreaded the creation of a national legislature as the entering wedge which would by and by rend asunder the structure of our liberties. The great mind of Madison was one of the first to entertain distinctly the noble conception of two kinds of government operating at one and the same time upon the same individuals, harmonious with each other, but each supreme in its own sphere. Such is the fundamental conception of our partly federal, partly national, government, which appears throughout the Virginia plan as well as in the Constitution which grew out of it. It was a political conception of a higher order than had ever before been entertained; it took a great deal of discussion to make it clear to the minds of the delegates generally; and the struggle over this initial measure of a national legislature was so bitter as to come near breaking up the convention.

In its original shape the Virginia plan went much further toward national consolidation than the Constitution as adopted. The reaction against the evils of the loose-jointed confederation, which Randolph so ably summed up, was extreme. According to the Virginia plan, the national legislature was to be composed of two houses, like the legislatures of the several states. The members of the lower house should be chosen directly by the people; members of the upper house, or Senate, should be elected by the lower house out of persons nominated by the state legislatures. In both the lower and the upper branches of this national legislature the votes were to be the votes of individuals, and no longer the votes of states, as in the Continental Congress. Under the articles of confederation each state had an equal vote, and two thirds were required for every important measure. Under the proposed Constitution each state was to have a number of representatives proportionate either to its wealth or to the number of its free inhabitants, and a bare majority of votes was to suffice to pass all measures in the ordinary course of business; and these rules were to apply both to the lower house and to the Senate. To adopt such a plan would overthrow the equality of the states altogether. It would give Virginia, the greatest state, sixteen representatives, where Georgia, the smallest state, had but one; and besides, as the votes were no longer to be taken by states, individual members could combine in any way they pleased, quite irrespective of state lines. It was not strange that to many delegates in the convention such a beginning should have seemed revolutionary. This impression was deepened when it was further proposed not only to clothe this national legislature with original powers of legislation in all cases to which the several states are incompetent, but also to allow it to set aside at discretion such state laws as it might deem unconstitutional. It is interesting to find Madison, whose Federalism afterward came to be so moderate, now appearing as the earnest defender of this extreme provision, so incompatible with state rights. But in Madison's mind at this moment, in the actual presence of the anarchy of the confederation, the only alternative which seemed to present itself was that of armed coercion. "A negative on state laws," he said, "is the mildest expedient that can be devised for enforcing a national decree. Should no such precaution be engrafted, the only remedy would be coercion. The negative would render the use of force unnecessary. This prerogative of the general government is the great pervading principle that must control the centrifugal tendency of the states, which, without it, will continually fly out of their proper orbits, and destroy the order and harmony of the political system." But these views were not destined to find favour with the convention, which finally left the matter to be much more satisfactorily adjusted through the medium of the federal judiciary.

Such were the fundamental provisions of the Virginia plan with regard to the national legislature. To carry out the laws, it was proposed that there should be a national executive, to be chosen by the national legislature for a short term, and ineligible a second time. Whether the executive power should be invested in a single person or in several was not specified. As will be seen hereafter, this was regarded as an extremely delicate point, with which it was thought best not to embarrass the Virginia plan at the outset. Passing lightly over this, it was urged that, in order to complete the action of the government upon individuals, there must be a national judiciary to determine cases arising under the Constitution, cases in admiralty, and cases in which different states or their citizens appear as parties. The judges were to be chosen by the national legislature, to hold office during good behaviour.

First reception of the Virginia plan.

Such, in its main outlines, was the plan which Randolph laid before the convention, in the name of the Virginia delegation. An audacious scheme! exclaimed some of the delegates; it was enough to take your breath away. If they were going to begin like this, they might as well go home, for all discussion would be time wasted. They were not sent there to set on foot a revolution, but to amend and strengthen the articles of confederation. But this audacious plan simply abolished the Confederation in order to substitute for it a consolidated national government. Foremost in urging this objection were Yates and Lansing of New York, with Luther Martin of Maryland. Dickinson said it was pushing things altogether too far, and his colleague, George Read, hinted that the delegation from Delaware might feel obliged to withdraw from the convention if the election of representatives according to population should be adopted. By the tact of Madison and Gouverneur Morris this question was postponed for a few days. After some animated discussion, the issues became so narrowed and defined that they could be taken up one by one. It was first decided that the national legislature should consist of two branches. Then came a warm discussion as to whether the members of the lower house should be elected directly by the people. Curiously enough, in a country where the principle of popular election had long since taken such deep root, where the assemblies of the several states had been chosen by the people from the very beginning, there was some doubt as to whether the same principle could safely be applied to the national House of Representatives. Gerry, with his head full of the Shays rebellion and the "Know Ye" measures of the neighbouring state, thought the people could not be trusted. "The people do not want virtue," said he, "but are the dupes of pretended patriots." Roger Sherman took a similar view, and was supported by Martin, Rutledge, and both the Pinckneys; but the sounder opinion prevailed. On this point Hamilton was at one with Mason, Wilson, and Dickinson. The proposed assembly, said Mason, was to be, so to speak, our House of Commons, and ought to know and sympathize with every part of the community. It ought to have at heart the rights and interests of every class of the people, and in no other way could this end be so completely attained as by popular election. "Yes," added Wilson, "without the confidence of the people no government, least of all a republican government, can long subsist… The election of the first branch by the people is not the corner-stone only, but the foundation of the fabric." "It is essential to the democratic rights of the community," said Hamilton, "that the first branch be directly elected by the people." Madison argued powerfully on the same side, and the question was finally decided in favour of popular election.

Antagonism between large states and small states.

The New Jersey plan; a feeble palliative.

It was now the 4th of June, when the great question came up which nearly wrecked the convention before it was settled, after a whole month of stormy debate. This was the question as to how the states should be represented in the new Congress. On the Virginia plan, the smaller states would be virtually swamped. Unless they could have equal votes, without regard to wealth or population, they would be at the mercy of the great states. In the division which ensued, the four most populous states – Virginia, Massachusetts, Pennsylvania, and North Carolina – favoured the Virginia plan; and they succeeded in carrying South Carolina with them. Georgia, too, which, though weak at that moment, possessed considerable room for expansion, voted upon the same side. On the other hand, the states of Connecticut, New Jersey, Delaware, and Maryland – which were not only small in area, but were cut off from further expansion by their geographical situation – were not inclined to give up their equal vote in either branch of the national legislature. At this stage of the proceedings the delegation from New Hampshire had not yet arrived upon the scene. On several occasions the majority of the Maryland delegation went with the larger states, but Luther Martin, always opposed to the Virginia plan, usually succeeded in dividing the vote of the delegation. Of the New York members, Yates and Lansing, here as always, thwarted Hamilton by voting with the smaller states. Their policy throughout was one of obstruction. The members from Connecticut were disposed to be conciliatory; but New Jersey was obstinate and implacable. She knew what it was to be tyrannized over by powerful neighbours. The wrongs she had suffered from New York and Pennsylvania rankled in the minds of her delegates. Accordingly, in the name of the smaller states, William Paterson laid before the convention the so-called "New Jersey plan" for the amendment of the articles of confederation. This scheme admitted a federal legislature, consisting of a single house, an executive in the form of a council to be chosen by Congress, and likewise a federal judiciary, with powers less extensive than those contemplated by the Virginia plan. It gave to Congress the power to regulate foreign and domestic commerce, to levy duties on imports, and even to raise internal revenue by means of a Stamp Act. But with all this apparent liberality on the surface, the New Jersey plan was vicious at bottom. It did not really give Congress the power to act immediately upon individuals. The federal legislature which it proposed was to represent states, and not individuals, and the states were to vote equally, without regard to wealth or population. If things were to be left in this shape, there was no security that the powers granted to Congress could ever be really exercised. Nay, it was almost certain that they could not be put into operation. It was easy enough on paper to give Congress the permission to levy duties and regulate commerce, but such a permission would amount to nothing unless Congress were armed with the power of enforcing its decrees upon individuals. And it could in no wise acquire such power unless as the creature of the people, and not of the states. The New Jersey plan, therefore, furnished no real remedy for the evils which afflicted the country. It was vigorously opposed by Hamilton, Madison, Wilson, and King. Hamilton, indeed, took this occasion to offer a plan of his own, which, in addition to Madison's scheme of a purely national legislature, contained the features of a tenure for life or good behaviour, for the executive and the members of the upper house. But to most of the delegates this scheme seemed too little removed from a monarchy, and Hamilton's brilliant speech in its favour, while applauded by many, was supported by none. The weighty arguments of Wilson, King, and Madison prevailed, and the New Jersey plan lost its original shape when it was decided that Congress should consist of two houses. The principle of equal state representation, however, remained as a stumbling-block. Paterson, supported by his able colleague Brearley, as well as by Martin and the two irreconcilables from New York, stoutly maintained that to depart from this principle would be to exceed the powers of the convention, which assuredly was not intended to remodel the government from beginning to end. But Randolph answered, "When the salvation of the republic is at stake, it would be treason to our trust not to propose what we find necessary;" and Hamilton pithily reminded the delegates that as they were there only for the purpose of recommending a scheme which would have to be submitted to the states for acceptance, they need not be deterred by any false scruples from using their wits to the best possible advantage. The debate on the merits of the question was an angry one. According to the Virginia plan, said Brearly, the three states of Virginia, Massachusetts, and Pennsylvania will carry everything before them. "It was known to him, from facts within New Jersey, that where large and small counties were united into a district for electing representatives for the district, the large counties always carried their point, and consequently the large states would do so… Was it fair, on the other hand, that Georgia should have an equal vote with Virginia? He would not say it was. What remedy, then? One only: that a map of the United States be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into thirteen equal parts." "Yes," said Paterson, "a confederacy supposes sovereignty in the members composing it, and sovereignty supposes equality. If we are to be considered as a nation, all state distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made then there may be fairly an equality of representation." This argument was repeated with a triumphant air, as seeming to reduce the Virginia plan to absurdity. Paterson went on to say that "there was no more reason that a great individual state, contributing much, should have more votes than a small one, contributing little, than that a rich individual citizen should have more votes than an indigent one. If the ratable property of A was to that of B as forty to one, ought A, for that reason, to have forty times as many votes as B?.. Give the large states an influence in proportion to their magnitude, and what will be the consequence? Their ambition will be proportionally increased, and the small states will have everything to fear. It was once proposed by Galloway [in the first Continental Congress] that America should be represented in the British Parliament, and then be bound by its laws. America could not have been entitled to more than one third of the representatives which would fall to the share of Great Britain: would American rights and interests have been safe under an authority thus constituted?" Then, warming with the subject, he exclaimed, If the great states wish to unite on such a plan, "let them unite if they please, but let them remember that they have no authority to compel the others to unite… Shall I submit the welfare of New Jersey with five votes in a council where Virginia has sixteen?.. I will never consent to the proposed plan. I will not only oppose it here, but on my return home will do everything in my power to defeat it there. Neither my state nor myself will ever submit to tyranny."