The Critical Period of American History
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The American cabinet is analogous not to the British cabinet, but to the privy council.
The close parallelism between the office of president and that of king in the minds of the framers of the Constitution was instructively shown in the debates on the advisableness of restraining the president's action by a privy council. Gerry and Sherman urged that there was need of such a council, in order to keep watch over the president. It was suggested that the privy council should consist of "the president of the Senate, the speaker of the House of Representatives, the chief justice of the supreme court, and the principal officer in each of five departments as they shall from time to time be established; their duty shall be to advise him in matters which he shall lay before them, but their advice shall not conclude him, or affect his responsibility." The plan for such a council found favour with Franklin, Madison, Wilson, Dickinson, and Mason, but did not satisfy the convention. When it was voted down Mason used strong language. "In rejecting a council to the president," said he, "we are about to try an experiment on which the most despotic government has never ventured; the Grand Seignior himself has his Divan." It was this failure to provide a council which led the convention to give to the Senate a share in some of the executive functions of the president, such as the making of treaties, the appointment of ambassadors, consuls, judges of the supreme court, and other officers of the United States whose appointment was not otherwise provided for. As it was objected to the office of vice-president that he seemed to have nothing provided for him to do, he was disposed of by making him president of the Senate. No cabinet was created by the Constitution, but since then the heads of various executive departments, appointed by the president, have come to constitute what is called his cabinet. Since, however, the members of it do not belong to Congress, and can neither initiate nor guide legislation, they really constitute a privy council rather than a cabinet in the modern sense, thus furnishing another illustration of the analogy between the president and the archaic sovereign.
The federal judiciary.
Concerning the structure of the federal judiciary little need be said here. It was framed with very little disagreement among the delegates. The work was chiefly done in committee by Ellsworth, Wilson, Randolph, and Rutledge, and the result did not differ essentially from the scheme laid down in the Virginia plan. It was indeed the indispensable completion of the work which was begun by the creation of a national House of Representatives. To make a federal government immediately operative upon individual citizens, it must of course be armed with federal courts to try and federal officers to execute judgment in all cases in which individual citizens were amenable to the national law. But for this system of United States courts extended throughout the states and supreme within its own sphere, the federal constitution could never have been put into practical working order. In another respect the federal judiciary was the most remarkable and original of all the creations of that wonderful convention. It was charged with the duty of interpreting, in accordance with the general principles of common law, the Federal Constitution itself. This is the most noble as it is the most distinctive feature in the government of the United States. It constitutes a difference between the American and British systems more fundamental than the separation of the executive from the legislative department. In Great Britain the unwritten constitution is administered by the omnipotent House of Commons; whatever statute is enacted by Parliament must stand until some future Parliament may see fit to repeal it. But an act passed by both houses of Congress, and signed by the president, may still be set aside as unconstitutional by the supreme court of the United States in its judgments upon individual cases brought before it. It was thus that the practical working of our Federal Constitution during the first thirty years of the nineteenth century was swayed to so great an extent by the profound and luminous decisions of Chief Justice Marshall, that he must be assigned a foremost place among the founders of our Federal Union. This intrusting to the judiciary the whole interpretation of the fundamental instrument of government is the most peculiarly American feature of the work done by the convention, and to the stability of such a federation as ours, covering as it does the greater part of a huge continent, it was absolutely indispensable.
Thus, at length, was realized the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of laws, – the state law and the federal law, – each with its legislature, its executive, and its judiciary moving one within the other, noiselessly and without friction. It was one of the longest reaches of constructive statesmanship ever known in the world. There never was anything quite like it before, and in Europe it needs much explanation to-day even for educated statesmen who have never seen its workings. Yet to Americans it has become so much a matter of course that they, too, sometimes need to be told how much it signifies. In 1787 it was the substitution of law for violence between states that were partly sovereign. In some future still grander convention we trust the same thing will be done between states that have been wholly sovereign, whereby peace may gain and violence be diminished over other lands than this which has set the example.
Great as was the work which the Federal Convention had now accomplished, none of the members supposed it to be complete. After some discussion, it was decided that Congress might at any time, by a two thirds vote in both houses, propose amendments to the constitution, or on the application of the legislatures of two thirds of the states might call a convention for proposing amendments; and such amendments should become part of the constitution as soon as ratified by three fourths of the states, either through their legislatures or through special conventions summoned for the purpose. The design of this elaborate arrangement was to guard against hasty or ill-considered changes in the fundamental instrument of government; and its effectiveness has been such that an amendment has come to be impossible save as the result of intense conviction on the part of a vast majority of the whole American people.
Finally it was decided that the Federal Constitution, as now completed, should be presented to the Continental Congress, and then referred to special conventions in all the states for ratification; and that when nine states, or two thirds of the whole number, should have ratified, it should at once go into operation as between such ratifying states.
Signing the Constitution.
When the great document was at last drafted by Gouverneur Morris, and was all ready for the signatures, the aged Franklin produced a paper, which was read for him, as his voice was weak. Some parts of this Constitution, he said, he did not approve, but he was astonished to find it so nearly perfect. Whatever opinion he had of its errors he would sacrifice to the public good, and he hoped that every member of the convention who still had objections would on this occasion doubt a little of his own infallibility, and for the sake of unanimity put his name to this instrument. Hamilton added his plea. A few members, he said, by refusing to sign, might do infinite mischief. No man's ideas could be more remote from the plan than his were known to be; but was it possible for a true patriot to deliberate between anarchy and convulsion, on the one side, and the chance of good to be expected from this plan, on the other? From these appeals, as well as from Washington's solemn warning at the outset, we see how distinctly it was realized that the country was on the verge of civil war. Most of the members felt so, but to some the new government seemed far too strong, and there were three who dreaded despotism even more than anarchy. Mason, Randolph, and Gerry refused to sign, though Randolph sought to qualify his refusal by explaining that he could not yet make up his mind whether to oppose or defend the Constitution, when it should be laid before the people of Virginia. He wished to reserve to himself full liberty of action in the matter. That Mason and Gerry, valuable as their services had been in the making of the Constitution, would now go home and vigorously oppose it, there was no doubt. Of the delegates who were present on the last day of the convention, all but these three signed the Constitution. In the signatures the twelve states which had taken part in the work were all represented, Hamilton signing alone for New York.
Thus after four months of anxious toil, through the whole of a scorching Philadelphia summer, after earnest but sometimes bitter discussion, in which more than once the meeting had seemed on the point of breaking up, a colossal work had at last been accomplished, the results of which were most powerfully to affect the whole future career of the human race so long as it shall dwell upon the earth. In spite of the high-wrought intensity of feeling which had been now and then displayed, grave decorum had ruled the proceedings; and now, though few were really satisfied, the approach to unanimity was remarkable. When all was over, it is said that many of the members seemed awe-struck. Washington sat with head bowed in solemn meditation. The scene was ended by a characteristic bit of homely pleasantry from Franklin. Thirty-three years ago, in the days of George II., before the first mutterings of the Revolution had been heard, and when the French dominion in America was still untouched, before the banishment of the Acadians or the rout of Braddock, while Washington was still surveying lands in the wilderness, while Madison was playing in the nursery and Hamilton was not yet born, Franklin had endeavoured to bring together the thirteen colonies in a federal union. Of the famous Albany plan of 1754, the first complete outline of a federal constitution for America that ever was made, he was the principal if not the sole author. When he signed his name to the Declaration of Independence in this very room, his years had rounded the full period of threescore and ten. Eleven years more had passed, and he had been spared to see the noble aim of his life accomplished. There was still, no doubt, a chance of failure, but hope now reigned in the old man's breast. On the back of the president's quaint black armchair there was emblazoned a half-sun, brilliant with its gilded rays. As the meeting was breaking up and Washington arose, Franklin pointed to the chair, and made it the text for prophecy. "As I have been sitting here all these weeks," said he, "I have often wondered whether yonder sun is rising or setting. But now I know that it is a rising sun!"
CHAPTER VII.
CROWNING THE WORK
The new Constitution is laid before Congress and submitted forthwith to the several states for ratification.
It was on the 17th of September, 1787, that the Federal Convention broke up. For most of the delegates there was a long and tedious journey home before they could meet their fellow-citizens and explain what had been done at Philadelphia during this anxious summer. Not so, however, with Benjamin Franklin and the Pennsylvania delegation. At eleven o'clock on the next morning, radiant with delight at seeing one of the most cherished purposes of his life so nearly accomplished, the venerable philosopher, attended by his seven colleagues, presented to the legislature of Pennsylvania a copy of the Federal Constitution, and in a brief but pithy speech, characterized by his usual homely wisdom, begged for it their most favourable consideration. His words fell upon willing ears, for nowhere was the disgust at the prevailing anarchy greater than in Philadelphia. But still it was not quite in order for the assembly to act upon the matter until word should come from the Continental Congress. Since its ignominious flight to Princeton, four years ago, that migratory body had not honoured Philadelphia with its presence. It had once flitted as far south as Annapolis, but at length had chosen for its abiding-place the city of New York, where it was now in session. To Congress the new Constitution must be submitted before it was in order for the several states to take action upon it. On the 20th of September the draft of the Constitution was laid before Congress, accompanied by a letter from Washington. The forces of the opposition were promptly mustered. At their head was Richard Henry Lee, who eleven years ago had moved in Congress the Declaration of Independence. He was ably supported by Nathan Dane of Massachusetts, and the delegation from New York were unanimous in their determination to obstruct any movement toward a closer union of the states. Their tactics were vigorous, but the majority in Congress were against them, especially after the return of Madison from Philadelphia. Madison, aided by Edward Carrington and young Henry Lee, the famous leader of light horse, succeeded in every division in carrying the vote of Virginia in favour of the Constitution and against the obstructive measures of the elder Lee. The objection was first raised that the new Constitution would put an end to the Continental Congress, and that in recommending it to the states for consideration Congress would be virtually asking them to terminate its own existence. Was it right or proper for Congress thus to have a hand in signing its own death-warrant? But this flimsy argument was quickly overturned. Seven months before Congress had recognized the necessity for calling the convention together; whatever need for its work existed then, there was the same need now; and by refusing to take due cognizance of it Congress would simply stultify itself. The opposition then tried to clog the measure by proposing amendments, but they were outgeneralled, and after eight days' discussion it was voted that the new Constitution, together with Washington's letter, "be transmitted to the several legislatures, in order to be submitted to a convention of delegates in each state by the people thereof, in conformity to the resolves of the convention."
First American parties, Federalists and Antifederalists.
The submission of the Constitution to the people of the states was the signal for the first formation of political parties on a truly national issue. During the war there had indeed been Whigs and Tories, but their strife had not been like the ordinary strife of political parties; it was actual warfare. Irredeemably discredited from the outset, the Tories had been overridden and outlawed from one end of the Union to the other. They had never been able to hold up their heads as a party in opposition. Since the close of the war there had been local parties in the various states, divided on issues of hard and soft money, or the impost, or state rights, and these issues had coincided in many of the states. During the autumn of 1787 all these elements were segregated into two great political parties, whose character and views are sufficiently described by their names. Those who supported the new Constitution were henceforth known as Federalists; those who were opposed to strengthening the bond between the states were called Antifederalists. It was fit that their name should have this merely negative significance, for their policy at this time was purely a policy of negation and obstruction. Care must be taken not to confound them with the Democratic-Republicans, or strict constructionists, who appear in opposition to the Federalists soon after the adoption of the Constitution. The earlier short-lived party furnished a great part of its material to the later one, but the attitude of the strict constructionists under the Constitution was very different from that of the Antifederalists. Madison, the second Republican president, was now the most energetic of Federalists; and Jefferson, soon to become the founder of the Democratic-Republican party, wrote from Paris, saying, "The Constitution is a good canvas, on which some strokes only want retouching." He found the same fault with it that was found by many of the ablest and most patriotic men in the country, – that it failed to include a bill of rights; but at the same time he declared that while he was not of the party of Federalists, he was much further from that of the Antifederalists. The Federal Convention he characterized as "an assembly of demi-gods."
The contest in Pennsylvania.
The first contest over the new Constitution came in Pennsylvania. The Federalists in that state were numerous, but their opponents had one point in their favour which they did not fail to make the most of. The constitution of Pennsylvania was peculiar. Its legislature consisted of a single house, and its president was chosen by that house. Therefore, said the Antifederalists, if we approve of a federal constitution which provides for a legislature of two houses and chooses a president by the device of an electoral college, we virtually condemn the state constitution under which we live. This cry was raised with no little effect. But some of the strongest immediate causes of opposition to the new Constitution were wanting in Pennsylvania. The friends of paper money were few there, and the objections to the control of the central government over commerce were weaker than in many of the other states. The Antifederalists were strongest in the mountain districts west of the Susquehanna, where the somewhat lawless population looked askance at any plan that savoured of a stronger government and a more regular collection of revenue. In the eastern counties, and especially in Philadelphia, the Federalists could count upon a heavy majority.
How to make a quorum.
The contest began in the legislature on the 28th of September, the very day on which Congress decided to submit the Constitution to the states, and before the news of the action had reached Philadelphia. The zeal of the Federalists was so intense that they could wait no longer, and they hurried the event with a high-handed vigour that was not altogether seemly. The assembly was on the eve of breaking up, and a new election was to be held on the first Tuesday of November. The Antifederalists hoped to make a stirring campaign, and secure such a majority in the new legislature as to prevent the Constitution from being laid before the people. But their game was frustrated by George Clymer, who had sat in the Federal Convention, and now most unexpectedly moved that a state convention be called to consider the proposed form of government. Great was the wrath of the Antifederalists. Mr. Clymer was quite out of order, they said. Congress had not yet sent them the Constitution; and besides, no such motion could be made without notice given beforehand, nor could it be voted on till it had passed three readings. Parliamentary usage was doubtless on the side of the Antifederalists, but the majority were clamorous, and overwhelmed them with cries of "Question, question!" The question was then put, and carried, by 43 votes against 19, and the house adjourned till four o'clock. Before going to their dinners the 19 held an indignation meeting, at which it was decided that they would foil these outrageous proceedings by staying away. It took 47 to make a quorum, and without these malcontents the assembly numbered but 45. When the house was called to order after dinner, it was found there were but 45 members present. The sergeant-at-arms was sent to summon the delinquents, but they defied him, and so it became necessary to adjourn till next morning. It was now the turn of the Federalists to uncork the vials of wrath. The affair was discussed in the taverns till after midnight, the 19 were abused without stint, and soon after breakfast, next morning, two of them were visited by a crowd of men, who broke into their lodgings and dragged them off to the state house, where they were forcibly held down in their seats, growling and muttering curses. This made a quorum, and a state convention was immediately appointed for the 20th of November. Before these proceedings were concluded, an express-rider brought the news from New York that Congress had submitted the Constitution to the judgment of the states.
And now there ensued such a war of pamphlets, broadsides, caricatures, squibs, and stump-speeches, as had never yet been seen in America. Cato and Aristides, Cincinnatus and Plain Truth, were out in full force. What was the matter with the old confederation? asked the Antifederalists. Had it not conducted a glorious and triumphant war? Had it not set us free from the oppression of England? That there was some trouble now in the country could not be denied, but all would be right if people would only curb their extravagance, wear homespun clothes, and obey the laws. There was government enough in the country already. This Philadelphia convention ought to be distrusted. Some of its members, such as John Dickinson and Robert Morris, had opposed the Declaration of Independence. Pretty men these, to be offering us a new government! You might be sure there was a British cloven foot in it somewhere. Their convention had sat four months with closed doors, as if they were afraid to let people know what they were about. Nobody could tell what secret conspiracies against American liberty might not have been hatched in all that time. One thing was sure: the convention had squabbled. Some members had gone home in a huff; others had refused to sign a document fraught with untold evils to the country. And now came James Wilson, making speeches in behalf of this precious Constitution, and trying to pull the wool over people's eyes and persuade them to adopt it. Who was James Wilson, any way? A Scotchman, a countryman of Lord Bute, a born aristocrat, a snob, a patrician, Jimmy, James de Caledonia. Beware of any form of government defended by such a man. And as to the other members of the convention, there was Roger Sherman, who had signed the articles of confederation, and was now trying to undo his own work. What confidence could be placed in a man who did not know his own mind any better than that? Then there were Hamilton and Madison, mere boys; and Franklin, an old dotard, a man in his second childhood. And as to Washington, he was doubtless a good soldier, but what did he know about politics? So said the more moderate of the malcontents, hesitating for the moment to speak disrespectfully of such a man; but presently their zeal got the better of them, and in a paper signed "Centinel" it was boldly declared that Washington was a born fool!
Delaware ratifies the Constitution, Dec. 6, 1787; Pennsylvania, Dec. 12; New Jersey, Dec. 18.
From the style and temper of these arguments one clearly sees that the Antifederalists in Pennsylvania felt from the beginning that the day was going against them. Sixteen of the men who had seceded from the assembly, headed by Robert Whitehill of Carlisle, issued a manifesto setting forth the ill-treatment they had received, and sounding an alarm against the dangers of tyranny to which the new Constitution was already exposing them. They were assisted by Richard Henry Lee, who published a series of papers entitled "Letters from the Federal Farmer," and scattered thousands of copies through the state of Pennsylvania. He did not deny that the government needed reforming, but in the proposed plan he saw the seeds of aristocracy and of centralization. The chief objections to the Constitution were that it created a national legislature in which the vote was to be by individuals, and not by states; that it granted to this body an unlimited power of taxation; that it gave too much power to the federal judiciary; that it provided for paying the salaries of members of Congress out of the federal treasury, and would thus make them independent of their own states; that it required an oath of allegiance to the federal government; and finally, that it did not include a bill of rights. These objections were very elaborately set forth by the leading Antifederalists in the state convention; but the logic and eloquence of James Wilson bore down all opposition. The Antifederalists resorted to filibustering. Five days, it is said, were used up in settling the meanings of the two words "annihilation" and "consolidation." In this way the convention was kept sitting for nearly three weeks, when news came from "the Delaware state," as it used then to be called in Pennsylvania. The concession of an equal representation in the federal Senate had removed the only ground of opposition in Delaware, and the Federalists had everything their own way there. In a convention assembled at Dover, on the 6th of December, the Constitution was ratified without a single dissenting voice. Thus did this little state lead the way in the good work. The news was received with exultation by the Federalists at Philadelphia, and on the 12th Pennsylvania ratified the Constitution by a two thirds vote of 46 to 23. The next day all business was quite at a standstill, while the town gave itself up to processions and merry-making. The convention of New Jersey had assembled at Trenton on the 11th, and one week later, on the 18th, it ratified the Constitution unanimously.