[Sidenote: The men who were assembled.]

All these points are well illustrated in the assemblage of men that framed our Federal Constitution. In its composition, this group of men left nothing to be desired. In its strength and in its weakness, it was an ideally perfect assembly. There were fifty-five men, all of them respectable for family and for personal qualities,—men who had been well educated, and had done something whereby to earn recognition in these troubled times. Twenty-nine were university men, graduates of Harvard, Yale, Columbia, Princeton, William and Mary, Oxford, Glasgow, and Edinburgh. Twenty-six were not university men, and among these were Washington and Franklin. Of the illustrious citizens who, for their public services, would naturally have been here, John Adams and Thomas Jefferson were in Europe; Samuel Adams, Patrick Henry, and Richard Henry Lee disapproved of the convention, and remained at home; and the greatest man of Rhode Island, Nathanael Greene, who—one likes to think—might have succeeded in bringing his state into the convention, had lately died of a sun-stroke, at the early age of forty-four.

[Sidenote: James Madison.]

Of the two most famous men present little need be said. The names of Washington and Franklin stood for supreme intelligence and consummate tact. Franklin had returned to this country two years before, and was now president of Pennsylvania. He was eighty-one years of age, the oldest man in the convention, as Jonathan Dayton of New Jersey, aged twenty-six, was the youngest. The two most profound and original thinkers in the company were but little older than Dayton. Alexander Hamilton was thirty, James Madison thirty-six. Among political writers, these two men must be ranked in the same order with Aristotle, Montesquieu, and Locke; and the "Federalist," their joint production, is the greatest treatise on government that has ever been written. John Jay, who contributed a few pages to this immortal volume, had not been sent to the convention, because New York did not wish to have it succeed. Along with Hamilton, New York sent two commonplace men, Robert Yates and John Lansing, who were extreme and obstinate Antifederalists; and the action of Hamilton, who was thus prevented from carrying the vote of his own state for any measure which he might propose, was in this way sadly embarrassed. For another reason, Hamilton failed to exert as much influence in the convention as one would have expected from his profound thought and his brilliant eloquence. Scarcely any of these men entertained what we should now call extreme democratic views. Scarcely any, perhaps, had that intense faith in the ultimate good sense of the people which was the most powerful characteristic of Jefferson. But Hamilton went to the other extreme, and expressed his distrust of popular government too plainly. His views were too aristocratic and his preference for centralization was too pronounced to carry conviction to his hearers. The leading part in the convention fell, therefore, to James Madison, a young man somewhat less brilliant than Hamilton, but superior to him in sobriety and balance of powers. Madison used to be called the "Father of the Constitution," and it is true that the government under which we live is more his work than that of any other one man. From early youth his life had been devoted to the study of history and the practice of statesmanship. He was a graduate of Princeton College, an earnest student, familiar with all the best literature of political science from Aristotle down to his own time, and he had given especial attention to the history of federal government in ancient Greece, and in Switzerland and Holland. At the age of twenty-five he had taken part in the Virginia convention which instructed the delegates from that state in Congress to bring forward the Declaration of Independence. During the last part of the war he was an active and influential member of Congress, where no one equalled or approached him for knowledge of English history and constitutional law. In 1784 he had returned to the Virginia legislature, and been foremost in securing the passage of the great act which gave complete religious freedom to the people of that state. No man understood better than he the causes of the alarming weakness of the federal government, and of the commercial disturbances and popular discontent of the time; nor had any one worked more zealously or more adroitly in bringing about the meeting of this convention. As he stood here now, a leader in the debate, there was nothing grand or imposing in his appearance. He was small of stature and slight in frame, like Hamilton, but he had none of Hamilton's personal magnetism. His manner was shy and prim, and blushes came often to his cheeks. At the same time, he had that rare dignity of unconscious simplicity which characterizes the earnest and disinterested scholar. He was exceedingly sweet-tempered, generous, and kind, but very hard to move from a path which, after long reflection, he had decided to be the right one. He looked at politics judicially, and was so little of a party man that on several occasions he was accused (quite wrongfully, as I hope hereafter to prove) of gross inconsistency. The position of leadership, which he won so early and kept so long, he held by sheer force of giant intelligence, sleepless industry, and an integrity which no man ever doubted. But he was above all things a man of peace. When in after years, as president of the United States, he was called upon to manage a great war, he was out of place, and his reputation for supreme ability was temporarily lowered. Here in the Federal Convention we are introduced to him at the noblest and most useful moment of his life.

[Sidenote: Other leading members.]

Of the fifty-five men here assembled, Washington, Franklin, Hamilton, and Madison were of the first order of ability. Many others in the room were gentlemen of more than ordinary talent and culture. There was John Dickinson, who had moved from Pennsylvania into Delaware, and now came to defend the equal rights of the smaller states. There was James Wilson of Pennsylvania, born and educated in Scotland, one of the most learned jurists this country has ever seen. Beside him sat the financier, Robert Morris, and his namesake Gouverneur Morris of Morrisania, near the city of New York, the originator of our decimal currency, and one of the far-sighted projectors of the Erie Canal. Then there was John Rutledge of South Carolina, who ever since the Stamp Act Congress had been the mainstay of his state; and with him were the two able and gallant Pinckneys. Caleb Strong, afterward ten times governor of Massachusetts, was a typical Puritan, hard-headed and supremely sensible; his colleague, Rufus King, already distinguished for his opposition to negro slavery, was a man of brilliant attainments. And there were George Wythe, the chancellor of Virginia, and Daniel Carroll of Maryland, who had played a prominent part in the events which led to the creation of a national domain. Oliver Ellsworth of Connecticut, afterward chief justice of the United States, was one of the ablest lawyers of his time; with him were Roger Sherman and William Johnson, the latter a Fellow of the Royal Society, and afterward president of Columbia College. The New Jersey delegation, consisting of William Livingston, David Brearley, William Paterson, and Jonathan Dayton, was a very strong one; and as to New Hampshire, it is enough to mention the name of John Langdon. Besides all these there were some twenty of less mark, men who said little, but listened and voted. And then there were the irreconcilables, Yates and Lansing, the two Antifederalists from New York; and four men of much greater ability, who took an important part in the proceedings, but could not be induced to accept the result. These four were Luther Martin of Maryland; George Mason and Edmund Randolph of Virginia; and Elbridge Gerry of Massachusetts.

When these men had assembled in Independence Hall, they chose George Washington president of the convention. The doors were locked, and an injunction of strict secrecy was put upon every one. The results of their work were known in the following September, when the draft of the Federal Constitution was published. But just what was said and done in this secret conclave was not revealed until fifty years had passed, and the aged James Madison, the last survivor of those who sat there, had been gathered to his fathers. He kept a journal of the proceedings, which was published after his death, and upon the interesting story told in that journal we have now to enter.



CHAPTER VI.

THE FEDERAL CONVENTION.

[Sidenote: Difficult problem before the convention.]

[Sidenote: 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.

[Sidenote: 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."

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: Antagonism between large states and small states.]

[Sidenote: 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."

Paterson was ably answered by James Wilson, of Pennsylvania, who pointed out the absurdity of giving 180,000 men in one part of the country as much weight in the national legislature as 750,000 in another part. It is unjust, he said. "The gentleman from New Jersey is candid. He declares his opinions boldly. I commend him for it. I will be equally candid.... I never will confederate on his principles." The convention grew nervous and excited over this seemingly irreconcilable antagonism. The discussion was kept up with much learning and acuteness by Madison, Ellsworth, and Martin, and history was ransacked for testimony from the Amphiktyonic Council to Old Sarum, and back again to the Lykian League. Madison, rightly reading the future, declared that if once the proposed union should be formed, the real danger would come not from the rivalry between large and small states, but from the antagonistic interests of the slave-holding and non-slaveholding states. Hamilton pointed out that in the state of New York five counties had a majority of the representatives, and yet the citizens of the other counties were in no danger of tyranny, as the laws have an equal operation upon all. Rufus King called attention to the fact that the rights of Scotland were secure from encroachments, although her representation in Parliament was necessarily smaller than that of England. But New Jersey and Delaware, mindful of recent grievances, were not to be argued down or soothed. Gunning Bedford of Delaware was especially violent. "Pretences to support ambition," said he, "are never wanting. The cry is, Where is the danger? and it is insisted that although the powers of the general government will be increased, yet it will be for the good of the whole; and although the three great states form nearly a majority of the people of America, they never will injure the lesser states. Gentlemen, I do not trust you. If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?... Sooner than be ruined, there are foreign powers who will take us by the hand. I say this not to threaten or intimidate, but that we should reflect seriously before we act." This language called forth a rebuke from Rufus King. "I am concerned," said he, "for what fell from the gentleman from Delaware,—take a foreign power by the hand! I am sorry he mentioned it, and I hope he is able to excuse it to himself on the score of passion."

[Sidenote: The Connecticut compromise.]

The situation had become dangerous. "The convention," said Martin, "was on the verge of dissolution, scarce held together by the strength of a hair." When things were looking darkest, Oliver Ellsworth and Roger Sherman suggested a compromise. "Yes," said Franklin, "when a joiner wishes to fit two boards, he sometimes pares off a bit from both." The famous Connecticut compromise led the way to the arrangement which was ultimately adopted, according to which the national principle was to prevail in the House of Representatives, and the federal principle in the Senate. But at first the compromise met with little favour. Neither party was willing to give way. "No compromise for us," said Luther Martin. "You must give each state an equal suffrage, or our business is at an end." "Then we are come to a full stop," said Roger Sherman. "I suppose it was never meant that we should break up without doing something." When the question as to allowing equality of suffrage to the states in the Federal Senate was put to vote, the result was a tie. Connecticut, New York, New Jersey, Delaware, and Maryland—five states—voted in the affirmative; Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina—five states—voted in the negative; the vote of Georgia was divided and lost. It was Abraham Baldwin, a native of Connecticut and lately a tutor in Yale College, a recent emigrant to Georgia, who thus divided the vote of that state, and prevented a decision which would in all probability have broken up the convention. His state was the last to vote, and the house was hushed in anxious expectation, when this brave and wise young man yielded his private conviction to what he saw to be the paramount necessity of keeping the convention together. All honour to his memory!

The moral effect of the tie vote was in favour of the Connecticut compromise; for no one could doubt that the little states, New Hampshire and Rhode Island, had they been represented in the division, would have voted upon that side. The matter was referred to a committee as impartially constituted as possible, with Elbridge Gerry as chairman; and On the 5th of July, after a recess of three days, the committee reported in favour of the compromise. Fresh objections on the part of the large states were now offered by Wilson and Gouverneur Morris, and gloom again overhung the convention. Gerry said that, while he did not fully approve of the compromise, he had nevertheless supported it, because he felt sure that if nothing were done war and confusion must ensue, the old confederation being already virtually at an end. George Mason observed that "it could not be more inconvenient for any gentleman to remain absent from his private affairs than it was for him; but he would bury his bones in that city rather than expose his country to the consequences of a dissolution of the convention." Mason's subsequent behaviour was hardly in keeping with the promise of this brave speech, and in Gerry we shall observe like inconsistency. At present a timely speech from Madison soothed the troubled waters; but it was only after eleven days of somewhat more tranquil debate that the compromise was adopted on the 16th of July. Even then it was but narrowly secured. The ayes were Connecticut, New Jersey, Delaware, Maryland, and North Carolina,—five states; the noes were Pennsylvania, Virginia, South Carolina, and Georgia,—four states; Gerry and Strong against King and Gorham divided the vote of Massachusetts, which was thus lost. New York, for reasons presently to be stated, was absent. It is accordingly to Elbridge Gerry and Caleb Strong that posterity are indebted for here preventing a tie, and thus bringing the vexed question to a happy issue.

According to the compromise secured with so much difficulty, it was arranged that in the lower house population was to be represented, and in the upper house the states, each of which, without regard to size, was forever to be entitled to two senators. In the lower house there was to be one representative for every 40,000 inhabitants, but at Washington's suggestion the number was changed to 30,000, so as to increase the house, which then seemed likely to be too small in numbers. Some one suggested that with the growth of population that rate would make an unwieldy house within a hundred and fifty years from that time, whereat Gorham of Massachusetts laughed to scorn the idea that any system of government they could devise in that room could possibly last a hundred and fifty years. The difficulty has been surmounted by enlarging from time to time the basis of representation. It now seemed inadvisable that the senators should be chosen by the lower house out of persons nominated by the state legislatures; and it was accordingly decided that they should be not merely nominated, but elected, by the state legislatures. Thus the Senate was made quite independent of the lower house. At the same time, the senators were to vote as individuals, and thus the old practice of voting by states, except in certain peculiar emergencies, was finally done away with.

[Sidenote: It was a decisive victory for Madison's scheme.]

[Sidenote: Irreconcilables go home.]

It is seldom, if ever, that a political compromise leaves things evenly balanced. Almost every such arrangement, when once set working, weighs down the scales decidedly to the one side or the other. The Connecticut compromise was really a decisive victory for Madison and his party, although it modified the Virginia plan so considerably. They could well afford to defer to the fears and prejudices of the smaller states in the structure of the Senate, for by securing a lower house, which represented the American people, and not the American states, they won the whole battle in so far as the question of radically reforming the government was concerned. As soon as the foundation was thus laid for a government which should act directly upon individuals, it obviously became necessary to abandon the articles of confederation, and work out a new constitution in all its details. The plan, as now reported, omitted the obnoxious adjective "national," and spoke of the federal legislature and federal courts. But to the men who were still blindly wedded to the old confederation this soothing change of phraseology did not conceal their defeat. On the very day that the compromise was favourably reported by the committee, Yates and Lansing quit the convention in disgust, and went home to New York. After the departure of these uncongenial colleagues, Hamilton might have acted with power, had he not known too well that the sentiment of his state did not support him. As a mere individual he could do but little, and accordingly he went home for a while to attend to pressing business, returning just in time to take part in the closing scenes. His share in the work of framing the Federal Constitution was very small. About the time that Hamilton returned, Luther Martin, whose wrath had waxed hotter every day, as he saw power after power extended to the federal government, at length gave way and went back to Maryland, vowing that he would have nothing more to do with such high-handed proceedings.

While the Connecticut compromise thus scattered a few scintillations of discontent, and relieved the convention of some of its most discordant elements, its general effect was wonderfully harmonizing. The men who had opposed the Virginia plan only through their dread of the larger states were now more than conciliated. The concession of equal representation in the Senate turned out to have been a master stroke of diplomacy. As soon as the little states were assured of an equal share in the control of one of the two central legislative bodies, they suddenly forgot their scruples about thoroughly overhauling the government, and none were readier than they to intrust extensive powers to the new Congress. Paterson of New Jersey, the fiercest opponent of the Virginia plan, became from that time forth to the end of his life the most devoted of Federalists.

[Sidenote: Other antagonisms; vague dread of the future west.]

[Sidenote: Antagonism between slave states and free states.]

That first step which proverbially gives the most trouble had now been fairly taken. But other compromises were needed before the work of construction could properly be carried out. As the antagonism between great and small states disappeared from the scene, other antagonisms appeared. It is worth noting that just for a moment there was revealed a glimmering of jealousy and dread on the part of the eastern states toward those of which the foundations were laid in the northwestern territory. Many people in New England feared that their children would be drawn westward in such numbers as to create immense states beyond the Ohio; and thus it was foreseen that the relative political weight of New England in the future would be diminished. To a certain extent this prediction has been justified by events, but Roger Sherman rightly maintained that it afforded no just grounds for dread. King and Gerry introduced a most illiberal and mischievous motion, that the total number of representatives from new states must never be allowed to exceed the total number from the original thirteen. Such an arrangement, which would surely have been enough to create that antagonism between east and west which it sought to forestall and avoid, was supported by Massachusetts and Connecticut, with Delaware and Maryland; but it was defeated by the combination of New Jersey with the four states south of Maryland. The ground was thus cleared for a very different kind of sectional antagonism,—that which, as Madison truly said, would prove the most deep-seated and enduring of all,—the antagonism between north and south. The first great struggle between the pro-slavery and anti-slavery parties began in the Federal Convention, and it resulted in the first two of the long series of compromises by which the irrepressible conflict was postponed until the north had waxed strong enough to confront the dreaded spectre of secession, and, summoning all its energies in one stupendous effort, exorcise it forever. From this moment down to 1865 we shall continually be made to realize how the American people had entered into the shadow of the coming Civil War before they had fairly emerged from that of the Revolution; and as we pass from scene to scene of the solemn story, we shall learn how to be forever grateful for the sudden and final clearing of the air wrought by that frightful storm which men not yet old can still so well remember.

The first compromise related to the distribution of representatives between north and south. Was representation in the lower house of Congress to be proportioned to wealth, or to population; and if the latter, were all the inhabitants, or only all the free inhabitants, to be counted? It was soon agreed that wealth was difficult to reckon and population easy to count; and to an extent sufficient for all ordinary purposes, population might serve as an index of wealth. A state with 500,000 inhabitants would be in most cases richer than one with 400,000. In those days, when cities were few and small, this was approximately true. In our day it is not at all true. A state with large commercial and manufacturing cities is sure to be much richer than a state in which the population is chiefly rural. The population of Massachusetts is somewhat smaller than that of Indiana; but her aggregate wealth is more than double that of Indiana. Disparities like this, which do not trouble us to-day, would have troubled the Federal Convention. We no longer think it desirable to give political representation to wealth, or to anything but persons. We have become thoroughly democratic, but our great-grandfathers had not. To them it seemed quite essential that wealth should be represented as well as persons; but they got over the main difficulty easily, because under the economic conditions of that time population could serve roughly as an index to wealth, and it was much easier to count noses than to assess the value of farms and stock.

[Sidenote: Were slaves to be reckoned as persons or as chattels?]

But now there was in all the southern states, and in most of the northern, a peculiar species of collective existence, which might be described either as wealth or as population. As human beings the slaves might be described as population, but in the eye of the law they were chattels. In the northern states slavery was rapidly disappearing, and the property in negroes was so small as to be hardly worth considering; while south of Mason and Dixon's line this peculiar kind of property was the chief wealth of the states. But clearly, in apportioning representation, in sharing political power in the federal assembly, the same rule should have been applied impartially to all the states. At this point, Pierce Butler and Cotesworth Pinckney of South Carolina insisted that slaves were part of the population, and as such must be counted in ascertaining the basis of representation. A fierce and complicated dispute ensued. The South Carolina proposal suggested a uniform rule, but it was one that would scarcely alter the political weight of the north, while it would vastly increase the weight of the south; and it would increase it most in just the quarter where slavery was most deeply rooted. The power of South Carolina, as a member of the Union, would be doubled by such a measure. Hence the northern delegates maintained that slaves, as chattels, ought no more to be reckoned as part of the population than houses or ships. "Has a man in Virginia," exclaimed Paterson, "a number of votes in proportion to the number of his slaves? And if negroes are not represented in the states to which they belong, why should they be represented in the general government?... If a meeting of the people were to take place in a slave state, would the slaves vote? They would not. Why then should they be represented in a federal government?" "I can never agree," said Gouverneur Morris, "to give such encouragement to the slave-trade as would be given by allowing the southern states a representation for their negroes.... I would sooner submit myself to a tax for paying for all the negroes in the United States than saddle posterity with such a constitution."

[Sidenote: The three fifths compromise; a genuine English solution, if ever there was one.]

The attitude taken by Virginia was that of peace-maker. On the one hand, such men as Washington, Madison, and Mason, who were earnestly hoping to see their own state soon freed from the curse of slavery, could not fail to perceive that if Virginia were to gain an increase of political weight from the existence of that institution, the difficulty of getting the state legislature to abolish it would be enhanced. But on the other hand, they saw that South Carolina was inexorable, and that her refusal to adopt the Constitution for this reason would certainly carry Georgia with her, and probably North Carolina, also. Even had South Carolina alone been involved, it was not simply a question of forming a Union which should either include her or leave her out in the cold. The case was much more complicated than that. It was really doubtful if, without the cordial assistance of South Carolina, a Union could be formed at all. A Federal Constitution had not only to be framed, but it had to be presented to the thirteen states for adoption. It was by no means clear that enough states would ratify it to enable the experiment of the new government to go into operation. New York and Rhode Island were known to be bitterly opposed to it; Massachusetts could not be counted on as sure; to add South Carolina to this list would be to endanger everything. The event justified this caution. We shall hereafter see that it was absolutely necessary to satisfy South Carolina, and that but for her ratification, coming just at the moment when it did, the work of the Federal Convention would probably have been done in vain. It was a clear perception of the wonderful complication of interests involved in the final appeal to the people that induced the Virginia statesmen to take the lead in a compromise. Four years before, in 1783, when Congress was endeavouring to apportion the quotas of revenue to be required of the several states, a similar dispute had arisen. If taxation were to be distributed according to population, it made a great difference whether slaves were to be counted as population or not. If slaves were to be counted, the southern states would have to pay more than their equitable share into the federal treasury; if slaves were not to be counted, it was argued at the north that they would be paying less than their equitable share. Consequently, at that time the north had been inclined to maintain that the slaves were population, while the south had preferred to regard them as chattels. Thus we see that in politics, as well as in algebra, it makes all the difference in the world whether you start with plus or with minus. On that occasion Madison had offered a successful compromise, in which a slave figured as three fifths of a freeman; and Rutledge of South Carolina, who was now present in the convention, had supported the measure. Madison now proposed the same method of getting over the difficulty about representation, and his compromise was adopted. It was agreed that in counting population, whether for direct taxation or for representation in the lower house of Congress, five slaves should be reckoned as three individuals.

[Sidenote: In other words, it was the best solution attainable under the circumstances.]

All this was thoroughly illogical, of course; it left the question whether slaves are population or chattels for theorizers to wrangle over, and for future events to decide. It was easy for James Wilson to show that there was neither rhyme nor reason in it: but he subscribed to it, nevertheless, just as the northern abolitionists, Rufus King and Gouverneur Morris, joined with Washington and Madison, and with the pro-slavery Pinckneys, in subscribing to it, because they all believed that without such a compromise the Constitution would not be adopted; and in this there can be little doubt that they were right. The evil consequences were unquestionably very serious indeed. Henceforth, so long as slavery lasted, the vote of a southerner counted for more than the vote of a northerner; and just where negroes were most numerous the power of their masters became greatest. In South Carolina there soon came to be more blacks than whites, and the application of the rule therefore went far toward doubling the vote of South Carolina in the House of Representatives and in the electoral college. Every five slaveholders down there were equal in political weight to not less than eight farmers or merchants in the north; and thus this troublesome state acquired a power of working mischief out of all proportion to her real size. At a later date the operation of the rule in Mississippi was similar; and in general it was just the most backward and barbarous parts of the Union that were thus favoured at the expense of the most civilized parts. Admitting all this, however, it remains undeniable that the Constitution saved us from anarchy; and there can be little doubt that slavery and every other remnant of barbarism in American society would have thriven far more lustily under a state of chronic anarchy than was possible under the Constitution. Four years of concentrated warfare, animated by an intense and lofty moral purpose, could not hurt the character or mar the fortunes of the people, like a century of aimless and miscellaneous squabbling over a host of petty local interests. The War of Secession was a terrible ordeal to pass through; but when one tries to picture what might have happened in this fair land without the work of the Federal Convention, the imagination stands aghast.

[Sidenote: Compromise between New England and South Carolina as to the foreign slave-trade.]

The second great compromise between northern and southern interests related to the abolition of the foreign slave-trade and the power of the federal government over commerce. All the states except South Carolina and Georgia wished to stop the importation of slaves; but the physical conditions of rice and indigo culture exhausted the negroes so fast that these two states felt that their industries would be dried up at the very source if the importation of fresh negroes were to be stopped. Cotesworth Pinckney accordingly declared that South Carolina would consider a vote to abolish the slave-trade as simply a polite way of telling her that she was not wanted in the Union. On the other hand, the three New England states present in the convention had made up their minds that it would not do to allow the several states any longer to regulate commerce each according to its own whim. It was of vital importance that this power should be taken from the states and lodged in Congress; otherwise, the Union would soon be rent in pieces by commercial disputes. The policy of New York had thoroughly impressed this lesson upon all the neighbouring states. But none of the southern states were in favour of granting this power unreservedly to Congress. If a navigation act could be passed by a simple majority in Congress, it was feared that the New Englanders would get all the carrying trade into their own hands, and then charge ruinous freights for carrying rice, indigo, and tobacco to the north and to Europe. On this point, accordingly, the southern delegates acted as a unit in insisting that Congress should not be empowered to pass navigation acts, except by a two thirds vote of both houses. This would have tied the hands of the federal government most unfortunately; and the New Englanders, enlightened by their own interests, saw it to be so. Here were the materials ready for a compromise, or, as the stout abolitionist, Gouverneur Morris, truly called it, a "bargain" between New England and the far south. New Hampshire, Massachusetts, and Connecticut consented to the prolonging of the foreign slave-trade for twenty years, or until 1808; and in return South Carolina and Georgia consented to the clause empowering Congress to pass navigation acts and otherwise regulate commerce by a simple majority of votes. At the same time, as a concession to rice and indigo, the New Englanders agreed that Congress should be forever prohibited from taxing exports; and thus one remnant of mediaeval political economy was neatly swept away.

[Sidenote: This last compromise seems to make the adhesion of Virginia doubtful.]

This compromise was carried against the sturdy opposition of Virginia. The language of George Mason of Virginia is worth quoting, for it was such as Theodore Parker might have used. He called the slave-trade "this infernal traffic." "Slavery," said he, "discourages arts and manufactures. The poor despise labour when performed by slaves. They prevent the immigration of whites, who really strengthen and enrich a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities." But these prophetic words were powerless against the combination of New England with the far south. One thing was now made certain,—that the vast influence of Rutledge and the Pinckneys would be thrown unreservedly in behalf of the new Constitution. "I will confess," said Cotesworth Pinckney, "that I had prejudices against the eastern states before I came here, but I have found them as liberal and candid as any men whatever." But this compromise, which finally secured South Carolina and Georgia, made Virginia for the moment doubtful; for Mason and Randolph were so disgusted at the absolute power over commerce conceded to Congress that, when the Constitution was finished and engrossed on paper, they refused to sign it.

It is difficult to read this or any other episode in our history whereby negro slavery was extended and fostered without burning indignation. But this is not the proper mood for the historian, whose aim is to interpret men's actions by the circumstances of their time, in order to judge their motives correctly. In 1787 slavery was the cloud like unto a man's hand which portended a deluge, but those who could truly read the signs were few. From north to south, slavery had been slowly dying out for nearly fifty years. It had become extinct in Massachusetts, it was nearly so in all the other northern states, and it had just been forever prohibited in the national domain. In Maryland and Virginia there was a strong and growing party in favour of abolition. The movement had even gathered strength in North Carolina. Only the rice-swamps of the far south remained wedded to their idols. It was quite generally believed that slavery was destined speedily to expire, to give place to a better system of labour, without any great danger or disturbance; and this opinion was distinctly set forth by many delegates in the convention.[7] Even Charles Pinckney went so far as to express a hope that South Carolina, if not too much meddled with, would by and by voluntarily rank herself among the emancipating states; but his older cousin declared himself bound in candour to acknowledge that there was very little likelihood indeed of so desirable an event. Not even these South Carolinians ventured to defend slavery on principle. This belief in the moribund condition of slavery prevented the convention from realizing the actual effect of the concessions which were made. Scarcely any cotton was grown at that time, and none was sent to England. The industrial revolution about to be wrought by the inventions of Arkwright and Hargreaves, Cartwright and Watt and Whitney, could not be foreseen. Nor could it be foreseen that presently, when there should thus arise a great demand for slaves from Virginia as a breeding-ground, the abolitionist party in that state would disappear, leaving her to join in the odious struggle for introducing slavery into the national domain. Though these things were so soon to happen, the wisest man in 1787 could not foresee them. The convention hoped that twenty years would see not only the end of the foreign slave-trade, but the restriction and diminution of slavery itself. It was in such a mood that they completed the compromise by recommending a tariff of ten dollars a head upon all negroes imported, while at the same time a clause was added for insuring the recovery of fugitive slaves, quite similar to the clause in the ordinance for the government of the northwestern territory.

[Sidenote: The foundations of the Constitution were thus laid in compromise.]

It was the three great compromises here described that laid the foundations of our Federal Constitution. The first compromise, by conceding equal representation to the states in the Senate, enlisted the small states in favour of the new scheme, and by establishing a national system of representation in the lower house, prepared the way for a government that could endure. This was Madison's great victory, secured by the aid of Sherman and Ellsworth, without which nothing could have been effected. The second compromise, at the cost of giving disproportionate weight to the slave states, gained their support for the more perfect union that was about to be formed. The third compromise, at the cost of postponing for twenty years the abolition of the foreign slave-trade, secured absolute free-trade between the states, with the surrender of all control over commerce into the hands of the federal government. After these steps had been taken, the most difficult and dangerous part of the road had been travelled; the remainder, though extremely important, was accomplished far more easily. It was mainly the task of building on the foundations already laid.

[Sidenote: 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.

[Sidenote: Powers denied to the states.]

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: There should be a president, but how should he be elected.]

After it had been decided that there should be one man set in so high a position, there was endless discussion as to whether he should be elected by the people or by Congress, and whether he should serve for one, or two, or three, or four, or ten, or fifteen years. "Better call it twenty," said Rufus King, sarcastically; "it is the average reign of princes." Hamilton and Gouverneur Morris would have had him chosen for life, subject to removal for misbehaviour; but the preference for a short term of service was soon manifest. As to the method of election, opinions oscillated back and forth for several weeks. Wilson said "he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say, however, at least, that in theory he was for an election by the people. Experience, particularly in New York and Massachusetts, showed that an election of the first magistrate by the people at large was both a convenient and a successful mode. The objects of choice in such cases must be persons whose merits have general notoriety." Mason, Rutledge, and Strong agreed with Sherman that the executive should be chosen by the legislature; but Washington, Madison, Gerry, and Gouverneur Morris strongly disapproved of this. Morris argued that an election by the national legislature would be the work of intrigue and corruption, like the election of the king of Poland by a diet of nobles; but Mason declared, on the other hand, that "to refer the choice of a proper character for a chief magistrate to the people would be as unnatural as to refer a trial of colours to a blind man." A decision was first reached against an election by Congress, because it was thought that if the chief magistrate should prove himself thoroughly competent he ought to be reeligible; but if reeligible he would be exposed to the temptation of truckling to the most powerful party or cabal in Congress, in order to secure his reelection. It did not occur to any one to suggest that under ordinary circumstances the executive ought to follow the policy of the most powerful party in Congress, and that he might at the same time preserve all needful independence by being clothed with the power of dissolving Congress and making an appeal to the people in a new election. It is interesting to consider what might have come of such a suggestion, following upon the heels of that made by Roger Sherman. As we shall presently see, it would have immeasurably simplified the machinery of our government, besides making the executive what it ought to be, the arm of the legislature, instead of a separate and coordinate power. Upon this point the minds of nearly all the members were so far under the sway of an incorrect theory that such an idea occurred to none of them. It was decided that the chief magistrate ought to be reeligible, and therefore should not be elected by Congress.

[Sidenote: Suggestion of an electoral college.]

An immediate choice by the people, however, did not meet with general favour. To obviate the difficulty, Ellsworth and King suggested the device of an electoral college, in which the electors should be chosen by the state legislatures, and should hold a meeting at the federal city for the sole purpose of deciding upon a chief magistrate. It was then objected that it would be difficult to find competent men who would be willing to undertake a long journey simply for such a purpose. The objection was felt to be a very grave one, and so the convention returned to the plan of an election by Congress, and again confronted the difficulty of the chief magistrate's intriguing to secure his reelection. Wilson thought to do away with this difficulty by introducing the element of blind chance, as in some of the states of ancient Greece, and choosing the executive by a board of electors taken from Congress by lot; but the suggestion found little support. Dickinson thought it would be well if the people of each state were to choose its best citizen,—in modern parlance, its "favourite son;" then out of these thirteen names a chief magistrate might be chosen, either by Congress or by a special board of electors. At length, on the 26th of July, at the motion of Mason, the convention resolved that there should be a national executive, to consist of a single person, to be chosen by the national legislature for the term of seven years, and to be ineligible for a second term. He was to be styled President of the United States of America.

This decision remained until the very end of August, when the whole question was reopened by a motion of Rutledge that the two houses of Congress, in electing the president, should proceed by "joint ballot." The object of this motion was to prevent either house from exerting a negative on the choice of the other. It was carried in spite of the opposition of some of the smaller states, which might hope to exercise a greater relative influence upon the choice of presidents, if the Senate were to vote separately. At this point the fears of Gouverneur Morris, that an election by Congress would result in boundless intrigue, were revived; and in a powerful speech he persuaded the convention to return to the device of the electoral college, which might be made equal in number and similar in composition to the two houses of Congress sitting together. It need not be required of the electors, after all, that they should make a long journey to the seat of the federal government. They might meet in their respective states, and vote by ballot for two persons, one of whom must be an inhabitant of a different state. By this provision it was hoped to diminish the chances for extreme sectional partiality. A list of these votes might be sent under seal to the presiding officer of the Senate, to be counted. Should no candidate turn out to have a majority of the votes, the Senate might choose a president from the five highest candidates on the list. The candidate having the next highest number of votes might be declared vice-president, and preserve the visible continuity of the government in case of the death of the president during his term of office. By these changes the method of electing the president, as finally decided upon, was nearly completed. But Mason, Randolph, Gerry, King, and Wilson were not satisfied with the provision that the Senate might choose the president in case of a failure of choice on the part of the electoral college: they preferred to give this power to the House of Representatives. It was thought that the Senate would be likely to prove an aristocratic body, somewhat removed from the people in its sympathies, and there was a dread of intrusting to it too many important functions. Mason thought that the sway of an aristocracy would be worse than an absolute monarchy; and if the Senate might every now and then elect the president, there would be a risk that the dignity of his office might degenerate, until he should become a mere creature of the Senate. On the other hand, the small states, in order to have an equal voice with the large ones, in such an emergency as the failure of choice by the electoral college, wished to keep the eventual choice in the hands of the Senate. Among the delegates from the small states, only Langdon and Dickinson at first supported the change, and only New Hampshire voted for it. At length Sherman proposed a compromise, which was carried. It was agreed that the eventual choice should be given to the House of Representatives, and not to the Senate, but that in exercising this function the vote in the House of Representatives should be taken by states. Thus the humours of the delegates from the small states, and of those who dreaded the accumulation of powers into the hands of an oligarchy, were alike gratified. This arrangement was finally adopted by the votes of ten states against Delaware.