The keener spirits among the opposition looked above these details and saw a threatened consolidation of the Central Government. "Give me leave to inquire," said Patrick Henry, in the Virginia Convention, "who authorised them to speak the language of 'We, the people,' instead of 'We, the States'? States are the characteristics and the soul of a confederation." "I stumble at the threshold," said Samuel Adams, on first reading the document. "I meet with a national government, instead of a federal union of sovereign States." Said a member of the first North Carolina Convention, "I am astonished that the servants of the Legislature of North Carolina should go to Philadelphia and, instead of speaking of the 'State' of North Carolina should speak of the 'people.'" In the Massachusetts Convention it was declared that "We, the people," created an actual consolidation of the States, and the moment it was adopted would mean the dissolution of the State governments.

A few advocates of the new Government did not hesitate to admit that it was intended to form an efficient government for the entire people of the United States, regardless of the States. One of the two must be superior. In the convention, Gouverneur Morris had made this laconic speech, "Mr. President, if the rod of Aaron do not swallow the rods of the magicians, the rods of the magicians will swallow the rod of Aaron." However, the more politic endeavoured to quiet the fears of the people by explaining that "We, the people," was simply the style or title of the new form; that the powers given to the Central Government were entirely national ones; that all the rest were reserved to the States; and that the people could easily change the Constitution by amending it if they experienced any danger at any time from the central authority.

These words of the preamble to the Constitution, so pregnant of future interpretation, were thus, from the beginning, a cause of alarm to a few minds. Patrick Henry seemed to feel presciently that the later theory of an indissoluble union would be based largely upon this phrase, and that the Civil War to preserve the Union would be justified by it. Yet its incorporation in the document in that form was due purely to an accident. The Virginia plan contained no preamble. Pinckney's plan, as given by Madison, began, "We, the people of the States of New Hampshire, etc." When the first rough draft of the Constitution had been put together by the Committee on Detail, during the eleventh week of the convention, and secretly printed for the use of the members, the preamble began, "We, the people of the States of New Hampshire," etc. Six weeks later, the revised draft was reported with the preamble changed to "We, the people of the United States," etc. What caused the change to be made? Chiefly because the blank designating the number of States required to put the new form into execution had been filled with the word "nine." No one could tell which nine would ratify first and, therefore, no list of States could be put into the preamble. A phrase covering all the people of the United States was substituted. What slight chances give rise to arguments justifying the making of a nation!



Two factors were potent in securing the final success of the new plan. One was the provision in the last clause by which the new frame could be amended easily. The unanimity which the Articles required in order to correct a mistake had taught a valuable lesson. Three-fourths was to be the maximum requirement hereafter. It is interesting to note that a unanimous vote has never been obtained on any amendment thus far made to the Constitution. The other favourable circumstance was the tacit understanding that Washington would consent to serve as the first President, guaranteeing the perpetuity of the Republic by his past record. His fidelity had been tested at the close of the Revolutionary War, when a devoted army might have made him a Julius Caesar or an Oliver Cromwell in the chaotic condition of affairs. That he had returned to his Virginia farm to become an active citizen was an assurance that he could now be trusted with the vast powers conferred on the chief executive under the new plan.

The State conventions were not slow to take advantage of the privilege of proposing amendments, and these the promoters were too wise to resist. Proposals to make amendments were non-committal and harmless where the motto was "Anything to get the new plan in operation." Massachusetts wished nine additions made, South Carolina four, Virginia twenty, New Hampshire twelve, New York thirty-two, and North Carolina twenty-six. Of the 103 propositions submitted to the consideration of Congress by the conventions, many were duplicates. Only ten were destined to survive. At the time, they served as a machine of the gods to avert the dangerous proposition that another convention be held to draw up a second constitution embracing the desired changes.

No one can read the acts of ratification in which these proposed amendments were incorporated or added without being impressed by the fear of the States that they were hazarding their hard-earned liberties in this experiment. It is easy to make light of them in the successful experience of a hundred years. It is clear now that whatever precautions the States took would be swept aside by the hand of necessity, and that later generations would repudiate some of the principles laid down in their manifestos. It is useless to demand consistency in a growing body. How futile for Virginia and Rhode Island, for instance, to declare that all power granted under the Constitution proceeds from the people of the United States and that, whenever the same is perverted, it may be resumed by them! Being adopted in State conventions and voicing the sentiment of the people in these established groups, is it unlikely that they meant the people of the United States as grouped into the several States precisely as they had formed and were now adopting their Constitution? Yet a generation or two later, Virginia was to be told that she meant the people of the entire United States, regardless of State lines, and in this opinion the people of Rhode Island in that generation would join.

How useless for South Carolina to make as part of her ratification the precautionary statement that no part of the Constitution should ever be construed so that the States might be deprived of any power not expressly relinquished by them! How fruitless for New Hampshire to stipulate that all powers not expressly delegated by the Constitution should be reserved to the several States to be exercised by them! How profitless fate was to make the stipulations of New York that Congress should never lay any kind of excise except on ardent spirits, and that the clauses in the Constitution forbidding Congress to do certain things should not be construed into a permission to do anything except that which was named in the document! Time was soon to demonstrate the folly of attempting to place these barriers in the path of progress. Under such restrictions, the new Government would have been as helpless as the old, unless new powers had been added to it from time to time by the precarious method of amendment. Advancement must have been hindered constantly by waiting on the slow process of adding provisions to the Constitution. Such crises as the purchase of Louisiana, the suppression of domestic insurrection, and the adjustment of the national finances after the War of 1812 could never have been met because of constitutional limitations.

Several of the States incorporated in their acts of ratification a kind of political creed of the inalienable rights of the individual. Although not intended as amendments or even as conditions of ratification, they were supposed to be a kind of perpetual compact between the State and the nation. They were modelled after the Bill or Declaration of Rights in some of the State constitutions. Rhode Island, for instance, declared that "the rights aforesaid cannot be abridged or violated and that the explanations aforesaid are consistent with the said Constitution." Time was to show in seasons of national aggrandisement, during the reconstruction period, for instance, how futile such State barriers would be in hedging about the national powers. These sticklers for individualism and fearing souls could not see that the central clearing-house, which the people of the respective States were creating, could not be confined to a few expressed powers; that unseen situations and sudden emergencies would call for action not specified; that to make a list of allowable acts in advance was simply an impossibility. In their alarm, they failed to see that the individuals of which the States were composed would come in contact more closely with local than with national affairs; that they would participate more frequently in State than in Federal Government; and that this very participation for the regulation of local affairs would perpetuate a fealty to the State which would guarantee its perpetuity within its proper sphere. But, at the time, many agreed with Lowndes, who predicted in the South Carolina Convention that despite all precautions the State powers under the Constitution would soon be confined to the regulation of ferries and roads.

All anxiety about ratification ceased on the second day of July, the anniversary of the motion for independence, when the favourable act of New Hampshire, the ninth State necessary, reached Congress. The matter of arranging for putting the new Government into motion was referred to a committee. In taking this action, the old Congress was sealing its death-warrant. It would cease to exist, and be replaced by two houses of Congress under the Constitution. It had served well its purpose. Called into life by the necessity of colonial co-operation in 1774, the Continental Congress had gradually assumed sufficient power to bring a great war to a successful conclusion. Deprived of much of this power under the Articles, circumscribed by the suspicious bounds of State sovereignty, the Congress had become a thing of contempt. Not a member was now present who had been among those assembled at the hall of the Carpenters' Association in Philadelphia fourteen years before. Not a man now present was a signer of the Declaration of Independence.

Nevertheless the body assumed an unwonted activity in these, its last days. A quorum was had during several of the summer months of 1788. The business of settling accounts between the Confederation and the several States was actively carried on, and further arrangement was made for selling the public lands in the North-West Territory. The form of levying quotas upon the States, amounting to a million and a half dollars, was again gone through with. Since it was unlikely that these assessments would be paid, John Adams borrowed one million guilders in Holland for ten years with which to inaugurate the new Government.

A petition for statehood from the settlers in Kentucky, the second in the long list of additions to the Union, reached Congress, accompanied by the consent of Virginia to the severance of her western district. Since the time for the beginning of the new Government was so near at hand, the petition was returned with the suggestion that it be renewed after that event.

The principal item of domestic expenditure was found to be that for supporting the United States army of 595 officers and men scattered along the frontier. They were garrisoned in Fort Pitt, at the head of the Ohio River; Fort Franklin and Fort McIntosh, between Pitt and Lake Erie; Fort Harmar, at the mouth of the Muskingum; Fort Steuben, at the falls of the Ohio, now Louisville; and Fort Vincennes, on the Wabash, now in Indiana. Also a force consisting of an officer, one sergeant, and fifteen privates was stationed at West Point. To meet the expenses for these troops, and also those for Indians and pensions, there was available in the domestic treasury the sum total of $22,000.

The committee of Congress to whom had been given the arrangement for putting the new Government into motion found that the election of senators and representatives was left by the Constitution to the States; that the creation of the Federal judiciary belonged to the new Congress; and that only the measures necessary for the election of a President were left to them. They therefore set the first Wednesdays of the first three months in the following year for the three steps of appointing presidential electors, having them cast their ballots, and for commencing proceedings under the Constitution. These dates were adjusted to the meetings of the State Legislatures, as Madison explained to a correspondent. No objection was found to this arrangement of time, but the selection of a place in which to begin the new Government aroused the old sectional fear and avarice, and precipitated a two-months' contest, during which New York, Philadelphia, Baltimore, Wilmington, Lancaster, and Annapolis were considered. "The present seat of Congress" was finally adopted largely through impossibility of agreeing on another.



Having thus planned for its successor, having arranged the finances, the army, the post-office, the public land system, and other national affairs as best it could, the Continental or Confederation Congress slowly dwindled in membership until it lacked a quorum early in October, 1788. A few members attended at intervals until the beginning of the following March, when the thirty-nine foolscap volumes recording the birth of the United States were closed, to be deposited among the archives of the United States under the Constitution. A successor was now ready to undertake the task for which the Confederation had been found inadequate.



CHAPTER VII

BEGINNING AN EFFICIENT GOVERNMENT



In the manner of its formation and adoption the Constitution was the product of a confederation. In these respects, it was little in advance of the rejected Articles. Its strength lay in the possibilities of its administration. But as a document in 1789, it was the product of federated States. If all the people of the United States could have assembled and formed a constitution to go into effect immediately, or even if delegates, chosen by the people of the United States as a whole, had drawn up such a document, which had been adopted by the entire people or their delegates in a ratifying body, there would have been a national sovereignty wholly independent of the States from the beginning. Such a procedure was impossible—the very best reason why it was not attempted. A pure democracy is possible only among a small number of people living in a small State. For a large population and an extensive territory representative government must be substituted. If the idea of government in the British colonies in North America had been national instead of local from the beginning, the States would have disappeared under the Constitution, or have been kept only for selecting national representatives, and performing other national functions. An equipoise between the two could never have been reached. But fate had ordained otherwise. In a new land, the settlers naturally gathered into little groups for mutual protection. Collecting about some harbour or along some navigable waterway in the Northern colonies, or assembling from the plantations at the centre of the parish in the Southern colonies, the people instituted local government. Clusters of these units under home rule formed larger divisions, and, in this way, union came as an afterthought resulting from contiguity and intercourse. The States as colonies existed long before the Union. Individualism was born long before unity in America, and gained a prestige which aggregation has required nearly a century to overcome.

The ease with which the various States formed their first constitutions and the ease with which they corrected errors by substituting later frames, is an additional proof of their early efficiency. No State had as much difficulty as did the nation in reaching a workable basis. It is true that the national Congress first suggested State governments to the chaotic colonies, but they did not authorise them. The colonies looked to the nation for a uniform suggestion, but neither for sanction nor permission. Never for a moment did the members of the Continental Congress assume that they were working independently of their States, but considered themselves subordinate to the State assemblies. The States were always the last resort of Confederation days. The story of the United States is largely taken up with the struggle of the States to retain their early supremacy when that supremacy was menaced from time to time by new conditions.

Whatever destiny may have made of the later Union, whatever theories may now be indulged in concerning the abstract Union the fathers made in 1789, the concrete Union which was put into effect was the offspring of the States not only in the thoughts of the people, but it was even dependent upon them for aid in several particulars necessary for putting it into operation. Having no electoral machinery, the Union was compelled to ask the States to choose members of both branches of its Congress. In electing its chief executive, it was obliged to give the States sole charge of choosing electors for this purpose. A national election gradually came into existence because the Union took this control practically away from the States. The Federal Government was indebted to State agency for its first capitol, the Federal Hall, furnished it by the kindness of the City of New York. It had not a foot of soil independent of the States, State militia furnished the military escort for its President-elect, and a State governor, Clinton of New York, with his staff, gave him official welcome to the State and national capital combined. Even the oath given to the chief executive, an oath required by the national Constitution, was administered not by a national official, but by the chancellor of the State of New York.

An independent national government such as time has given us, and such as would be formed in the light of the present day, would not leave the method of choosing its presidential electors to the whims of the several States. At the time, no other method was possible. The State machinery was at hand and could be utilised. The national appliances had not yet been evolved. In some States the size of the precincts made voting well-nigh impossible. Residents of Luzerne County, Pennsylvania, must travel several hundred miles to the polls, according to Timothy Pickering. Although the Assembly of Virginia placed a fine upon every qualified voter who failed to perform his duty, and although the Federalists of Maryland offered a roasted ox at one polling-place to attract voters, it is estimated that not more than one-fourth the men entitled to vote availed themselves of the privilege. Many had been so recently enfranchised by the State constitutions that they did not appreciate the right. Independence having been won, the details of government failed to maintain civic zeal. In present-day elections, by contrast, as many as five-sixths of those qualified to vote at national elections avail themselves of the privilege.

It must also be noted that State qualifications for freemen determined who should vote in this first national election. In those States where the people voted, statistics show that only three men out of every hundred of population could vote in this first presidential election, where nowadays twenty men have that liberty. In some States, the people had no voice whatever in choosing the President, because the State Legislatures decided that they were the proper mediums to choose the presidential electors. The Constitution left the matter entirely in their hands. In some States, the people voted for electors in fixed districts; in other States they voted for a whole electoral ticket. This system of choosing a President through a set of electors, borrowed from the method of electing a German emperor, was far removed from democracy. It showed the distrust which the Constitution-makers felt in the intelligence and discrimination of the masses. Irregularity marked the elections generally. Two factions in the New York Legislature fell into a dispute over the manner in which Senators and electors should be chosen. It resulted in that State being deprived of participation in the first election and in the first session of the Senate. Before the next presidential election, Congress began to make regulations governing the States in their conduct of this important matter, an innovation which grew until it culminated in the election "force laws" of reconstruction days following the Civil War.

"The first Wednesday in March next shall be the time and the present seat of government the place for commencing proceedings under the said Constitution." So accustomed had the people grown to delays in public affairs, that a strict compliance with these provisions of the old Congress would have been a surprise. The first Wednesday of March, 1789, fell upon the fourth day of the month. At noon of that day, when the members constituting the two branches of the first Congress under the Constitution assembled in the rooms arranged for their sessions in the reconstructed City Hall of New York, there was no quorum in either House. Since eleven States had adopted the new plan and each was entitled to two Senators, twelve members of that body would be necessary to constitute a quorum. But only eight were present. These sent out one circular letter after another to the delinquent members, begging their immediate attendance. The condition of the roads at that season of the year and the inadequate means of transportation can scarcely be imagined at present. Madison, because of poor roads between Montpelier and Baltimore, missed the stage and lost two whole days, as he complained. However, one by one the tardy Senators arrived, and on April 6th, over a month late, the Senate found itself with a quorum. Even then there were only two members present from States south of Pennsylvania. Having read their credentials of election, they proceeded to elect a presiding officer "for the sole purpose" of opening the votes cast by the electors for President and Vice-President of the United States. The latter, according to the new plan of government, would be their permanent presiding officer. The choice for the temporary office fell upon Senator Langdon, of New Hampshire, a member of the convention which had framed the Constitution.

On the 4th day of March, the new House of Representatives had only thirteen members present. The Constitution required that they should be chosen by the people in the different States. The State Legislatures were unable to monopolise the elections as they did the presidential elections in certain States. Yet the people took little interest in this first congressional election. Out of 3,200,000 people, probably not more than one hundred thousand voted. Until some count of the number of people could be taken to secure a proportionate representation, the Constitution had set an arbitrary number of sixty-five, apportioning them among the States by a guess at the respective populations. Rhode Island and North Carolina not being in the Union deducted six from this total, making thirty necessary for a quorum. Day after day, the incomplete House adjourned. New members arrived at intervals until the first day of April, when a quorum was had, just four weeks late.

As first formed, the House consisted of the following members: New Hampshire, 1; Massachusetts, 5; Connecticut, 5; New Jersey, 2; Pennsylvania, 6; Maryland, 2; Virginia, 8; South Carolina, 1. Other members arrived from time to time. More or less irregularity had marked the elections in the various States. A protest soon reached the House from citizens of New Jersey claiming that the four members from that State had not been legally elected. The polls had been kept open in one district for two weeks, until closed by a proclamation from the governor. From South Carolina came charges against a member that he had not been a citizen of the United States the required seven years at the time of his election. Although a native of South Carolina, he was being educated in Europe during the Revolutionary period and had returned to the State after the close of the war, but before the adoption of the national Constitution. Contested elections here find early precedents. In both cases the House declared the elections valid and the members entitled to their seats.



Although the delay of nearly a month in securing a quorum in the new Congress was not alarming, it was most unfortunate. Never had the National Government come so near abdicating in favour of the State governments. There had been no sessions of the old Congress for the past six months, although straggling members appeared from time to time. There was a national Board of the Treasury wrestling with the problem of home and foreign creditors, but confronted with an empty coffer. Jay was acting as Secretary of Foreign Affairs, and Knox was Secretary of War. There was positively no other evidence of "The United States of America" except an "army" composed of a few soldiers scattered along the frontier. Jefferson, Minister to France, wished a leave of absence, which Jay thought reasonable. "But, my dear sir," he said, "there is no Congress sitting, nor have any of their servants authority to interfere. As soon as the President shall be in office, I will, without delay, communicate your letters to him." Madison foresaw contentions, "first between federal and anti-federal parties, and then between northern and southern parties, which give an additional disagreeableness to the prospect." John Adams pronounced the nation united in nothing save the choice of Washington.

After quorums were secured, new problems confronted this National Government, feeling its way without precedent. Only eleven States had come into the new agreement. The North Carolina Convention had adjourned without action, and Rhode Island had rejected the Constitution by a popular vote of 2708 to 232. Had a Congress representing eleven States the right, even if it had the power, to legislate for thirteen sovereign States? Many felt that important questions like amendments to the Constitution should be postponed until the United States were united in fact as well as in name. Even eleven States were insufficiently represented. Delaware had only one Senator and no Representative at hand. South Carolina had but one Senator present. The influential State of New York, the home of Hamilton and Jay, the place of meeting of the new Congress, was in the throes of a political "dead lock."

There was also no precedent for the workings of two branches of the National Legislature. Some prophets of evil who recalled the difficulties in one House of the Continental Congress predicted a double portion of woe under the new arrangement. It must not be supposed that a bicameral system was entirely a novelty. The colonies generally had such a system and, on becoming States, had adopted, with one exception, that form. It was true, as many recalled, that contests had frequently arisen between the colonial council and the popular assembly, especially where the former was appointed by the colonial governor. It was scarcely to be hoped that all friction could be avoided between the two branches of the United States Congress. They possessed to a large extent joint powers, and yet had individual initiative and control. A further difference might arise from the variation of the constituency which they represented. The Senate was appointed by and represented the States in their sovereign capacity, as the House of Lords represented the pleasure of the British sovereign. The House of Representatives was dependent upon and represented the direct interests of the people, as did the Commons under the British Constitution.

The Senate had the advantage of the prestige of the colonial council. When the day arrived for opening the presidential ballots the Senate notified the House that it was ready, and the latter obediently mounted the stairs to the small Senate chamber, where the ballots were counted, disclosing a unanimous election for George Washington and a majority for John Adams. The Senate immediately despatched messengers to notify these men to attend and be inaugurated. This feeling of superiority on the part of the Senate was not diminished, as its members contemplated the power of ratifying treaties and confirming appointments which they shared with the Chief Executive, as well as the long tenure of office and permanent session with which the body had been endowed. Because of this executive function, the Senate followed the example of the Continental Congress, and refused to admit the public to hear any of its deliberations during the first five sessions. It then yielded to public opinion and opened its doors when acting in its legislative capacity, going into secret session only when exercising its executive powers. To counterbalance these extraordinary functions, the House had only the exclusive right of originating revenue bills.

The necessary connection of the two Houses was recognised at the very beginning of the sessions by the appointment of joint committees to prepare rules for conference on bills upon which the two bodies might differ; to arrange for the transmission of papers; to dispose of the papers of the old Congress; to arrange for the inauguration of the first President; and to provide for the election of chaplains. Many of these matters common to both were easily adjusted. Two chaplains of different denominations were to be appointed, one by each House, and they were to interchange weekly. In this way Congress hoped to avoid the ever-recurring fear that one sect might be patronised until it became the established church. But upon the apparently minor point of the manner of transmitting papers from one body to the other a difference arose. The joint committee reported to each House an elaborate method whereby the Senate should send a bill or message to the House by its secretary. This official was to make an obeisance on entering the House, and another on delivering the paper to the Speaker, a third after it had left his hands and a fourth as he left the room. When the House sent up a bill to the Senate, it was to be carried by two members, undoubtedly in imitation of the custom of members of the Commons carrying a bill to the Lords. Precisely as many bows and at corresponding places were demanded of these two members as the secretary of the Senate was required to make in the House. All messages except bills could be carried up by one member, who should make the four obeisances. As a return courtesy the entire Senate should rise when two members entered the room, or the President of the Senate only, in case one member appeared with a message.

This exhaustive ceremonial clearly gave such superior standing to the Senate that it was rejected by the House. Being recommitted to the joint committee, they reported a simple substitute whereby any message should be sent from either House to the other by "such persons as a sense of propriety in each House may determine to be proper." The messenger was to be announced at the door and should communicate his message to the presiding officer. This in turn was rejected by the form-admiring Senate. Finally the Senate sent notice to the House that if their members should bring up a bill or message as originally provided, they would be received as first promised; but if they chose to send it by another agent he must hand the paper to the secretary of the Senate, who would deliver it to the President of the Senate. The House chose a messenger as their agent; the Senate soon followed the plain example; and thus a simple custom was inaugurated which has held to the present day.

The wisdom of providing some arrangement for a conference in case of disagreement between the two Houses was manifest several times in the first session. Conferences were held on no less than nine of the ninety-five measures passed. It is impossible, in the absence of reported debates, to ascertain the attitude of the Senate toward the other branch. Maclay, the garrulous Senator from Pennsylvania, whose diary is invaluable during these closed-door sessions, mentions several instances in which the Senate coerced the House by threatening to hold up appropriation bills. "It was a trial of skill in the way of starvation," he declares. The temper of the House when contending for what it considered its prerogatives can be seen from the debates.

"I am an advocate for supporting the dignity of the House," said a member from New York, debating a disagreement with the Senate, "and to me it appears somewhat inconsistent that we should change our sentiments in order to conform to the amendments of the Senate.... If we are to follow the Senate in all the alterations they propose, without hearing reasons to induce a change, our time in deliberation is taken up unnecessarily."

On a similar occasion, when the tonnage bill was being worked out by compromise, a member from Delaware hoped that the House would not recede from its position, "otherwise it might be considered that the House was under the government of the Senate, and adopted their opinions without arguments being offered to convince their judgments." A Virginia member "would rather lose any bill than have the doctrine established that this House must submit to the Senate; yet, if it was done in this instance, it would serve as a precedent in future decisions." In this slow manner, and with frequent irritation, the two branches of the National Legislature adjusted themselves to each other and formed precedents which have held for a century. The first measure to pass both Houses, receive the President's assent, and become a law, defined the oath which every officer of the National Government was required by the Constitution to take. It became a law within two months after quorums were obtained.

The relations of the two branches to the Executive were not so close and, therefore, more easily adjusted. No little credit is due to the very cool and conservative man who became the executive head of the revived nation. Even the journey of the President-elect from his home to the seat of government had been a continued ovation. It can be compared only with his progress to Cambridge nearly a score of years before to take command of the Revolutionary army. In both instances he was regarded as the deliverer of the country from a great peril. Possessed of probably the largest fortune in America, he could not be accused, as were many of his compatriots, of mercenary motives in his public actions. His freedom from personal ambition and selfish motive having been tested in the tempting days of the war, he could be relied upon by the people not to betray them in their extremity by any assumption of powers. Reputed to be a man of great self-control, almost cold-blooded in his self-guardedness, having dwelt far removed from the partisan strife pertaining naturally to populous centres, he would be careful in forming opinions, conservative in actions, and unlikely to yield to the influence of faction or partisanship. A moral man for that day, but neither a propagandist nor a zealot, he was unlikely to favour any sect or establishment of religion—a danger against which every possible precaution had been taken.

Even while the electors were being chosen and were holding their meetings in the several States, it was understood that Washington would undoubtedly be the choice for the first President. Indeed, before the Constitution had been fully formed, Hamilton and others were naming him. In the State conventions which considered the new form, speakers did not hesitate to predict his election. The assurance that the dreaded power would be first entrusted to his hands to form precedents persuaded many to try the change. John Adams, recently returned from representing his Government in Great Britain, and finding himself chosen to the second place, was said to be unable to comprehend how Washington's military experience had fitted him for this civic duty. Yet it was simply the first of many instances in which the gratitude of the people, backed by innate hero-worship, has singled out a war hero for the highest civic honours. Hence it came about that the very unanimity of election, for which all had hoped, defeated the purpose of the framers of the Constitution to have an unbiassed selection made by the presidential electors. This, or a like cause, has thwarted the purpose in every succeeding election of a President.



Considering the descent of the American people at that time, it is not surprising that the inauguration of the first President was copied largely from the inauguration of a British sovereign. Our fathers were not attempting to experiment with novelties of government, but to adapt tried methods to their needs. The trappings of royalty to be seen in an ancient kingdom were replaced in this Republic by a military display, significant of the means by which its birthright had been won. The royal procession from Buckingham Palace to the Abbey was reproduced in miniature in the escort of the President from the Osgood House, his temporary residence, to the Government chambers. The religious and civic rites observed at Westminster Abbey were here separated, the religious service being held at St. Paul's Chapel and the civic in the little recess or gallery between two pillars which had been made by the architect in transforming the New York City Hall into the National Federal Hall. The oath was taken upon a copy of the Bible by both monarch and President. The shouts from the crowd in front of the Federal Hall in Wall Street which followed Chancellor Livingston's cry of "Long live George Washington, President of the United States!" were no less sincere, although coming from fewer throats, than the cries of "Long live the King!" and "God save the King!" which proclaimed the homage of British subjects to their monarch. The cannon in old Fort George, down near the Battery, could greet a President as lustily as those in the Tower proclaimed a king.

But every departure from royal custom was in the direction of simplicity of detail. Instead of being surrounded by nobles and courtiers, the President was attended by the committees on inauguration from the Senate and House, by Vice-President Adams, Governor Clinton, and others. The coronation feast in the palace was republicanised into a dinner at the residence of Governor Clinton. The rich robes of the sovereign, to make which the resources of an empire were drawn upon, were transformed into a suit of ordinary clothing made entirely in America. Instead of being seated in an ancient chair endowed with kingly legend, the American President stood during the short ceremony. Instead of being administered by the Archbishop of Canterbury, the oath was given to him by the Chancellor of the State of New York. The fair and festivities which commonly ended the first day of a new monarch were changed into an illumination of the city of New York and a display of fireworks.

The ceremonies between the new President and the Congress bore an even closer resemblance to those accustomed to be seen at a coronation or upon the opening of a session of Parliament. The inauguration speech of the monarch took the shape of an inaugural address by the President, which confessed a lack of personal assurance and a reliance upon a Higher Power, called attention to the benefits of government, and begged the co-operation of all concerned in it. The speech from the throne at the opening of Parliament became a message to Congress at the opening of each session. Like the king's speech, it was divided into a general address to both Houses, and a special message to each. The attention of the House of Representatives was called to various financial matters, as the English monarch had been compelled to do since the stormy Stuart period.

Early in Washington's administration the Senate showed conclusively, by refusing to hear the Secretary of War explain an Indian treaty, that the Cabinet was not to have the British privilege of initiating legislation. Washington was compelled, consequently, to recommend to each branch of Congress in his opening address such matters as he thought demanded legislation. It is the only form of influencing Congress which has ever been given to the President, barring patronage. On these State occasions, when opening Congress, Washington was accustomed to ride down to the Federal Hall in the coach provided for him by Congress, with four instead of the two white horses usually driven, and outriders in advance as well as the two secretaries who rode habitually on horseback behind the coach. As was the custom in Parliament, a committee was appointed in each branch of Congress to draft a reply to the President's address. In due time this was carried by the Senators in solemn procession, headed by Vice-President Adams, to Washington's residence, where it was handed to him. The more democratic House of Representatives contented itself with presenting its reply to the President in a vacant room in the Federal building. To each of these replies Washington was accustomed to make a counter-reply, thanking the members for their courtesy and promising his continued efforts to secure the objects they suggested.

These forms and ceremonials, although copied originally from Britain, had been used in the inauguration of colonial governors and in the opening of colonial assemblies. They furnish a further proof that the American nation has been a thing of growth, an imitation of existing conditions until such time as originality could be developed or imitations transformed to meet the new conditions. Local forms furnished the models. They would be changed only as national ideals were developed. The fact that most of these European ceremonials were lopped off within twelve years shows how rapidly originality was developed.

During the first session Congress took up "the principal officer in each of the executive departments," as authorised by the Constitution. It was understood that these would be about the same as had been developed during the preceding years, viz., Foreign Affairs, Treasury, and War. It was not foreseen that they would become in time a "Cabinet." To these three departments Congress added a fourth, Justice, for which an attorney-general was appointed. He was considered a head of an executive department and ranked with the other three among the President's advisers.

The wisdom of the framers of the Constitution in simply arranging outlines instead of filling in details was nowhere better shown than in the provisions for the national judiciary. Congress was bound only to establish "one superior court" and could add such inferior courts as necessity might demand from time to time. So essential was a national judiciary felt to be, that during the pressing business of the first session the United States was divided for this purpose into thirteen judicial districts, conforming generally to the eleven States in the Union, each to have a district court held by a Federal judge. These districts were then grouped into an eastern, a middle, and a southern circuit, in accord with the geographical grouping of the States. In these two circuit courts were to be held each year by one or more district judges and one or more justices of the Supreme Court. The latter, the final tribunal of appeal from these inferior courts, was to consist of a chief justice and five associate justices. Necessary officers, such as marshals and clerks, were given to these courts, rules were formulated for their procedure, and an act was passed at the next session defining crimes against the United States. A resident of any State was by these acts made the subject of a new sovereign,—the United States of America,—liable to be punished for treason committed not against his State, but against the nation; to be prosecuted for piracy on the seas; for counterfeiting money, altering records, committing perjury in the Federal courts, resisting a national official, or offering violence to a foreign representative.

The United States could now command some respect from the individual. The Union would also assume a new dignity from being a judge instead of an arbiter between the States. No more would such long-continued warfare as the territorial dispute between Connecticut and Pennsylvania bring the Republic into ill-repute. This new judicial power extended to "controversies between citizens of different States." Never again would the cumbersome machinery of Federal commissioners to hear disputed claims to territory be called into service—a kind of Platonic lot-casting phantasy—because the new national judiciary system covered "controversies between two or more States." What powerful possibilities were given to the new Central Government in the provision that the Supreme Court should have "appellate jurisdiction from the courts of the several States in the cases hereinafter specially provided for." It would be found as futile to restrict the cases in which the national court should have an appeal from the State courts as to attempt to reserve all the powers to the States not expressly granted to the Union. In the haste necessarily attendant upon suddenly putting the provisions of the new government into effect, no one had the leisure if any possessed the foresight to consider the limits to which the Federal courts might extend its authority in the light of interpretation. Even Jefferson later confessed that this member of the Federal Government was at first considered as the most harmless and helpless of all its organs.



The beginnings of the national judiciary were so modest that no one could have taken alarm. The day that he signed the judiciary bill, Washington nominated John Jay, of New York, to be chief justice of the court, Edmund Randolph, of Virginia, to be attorney-general, and John Rutledge, of South Carolina, James Wilson, of Pennsylvania, William Gushing, of Massachusetts, Robert H. Harrison, of Maryland, and John Blair, of Virginia, to be associate justices.

State distribution of patronage was not such a criterion as in later appointments; yet the department of Justice represented all parts of the country. Considered from a sectional point, there seemed at the time little likelihood that the court would prove hostile to Southern individualism, since it contained, counting the attorney-general, four Southern men and three Northern men. District judges, attorneys, and marshals for the eleven judicial districts were appointed at the same time. A joint resolution of Congress asked the States to give their jailers power to receive and hold United States prisoners.

"Many of your old acquaintances and friends," wrote Washington to Lafayette, "are concerned with me in the administration of this government. By having Mr. Jefferson at the head of the department of state, Mr. Jay of the judiciary, Hamilton of the treasury, and Knox that of war, I feel myself supported by able coadjutors, who harmonise extremely well together."

Randolph, the Attorney-General, had never come in contact with Lafayette and consequently was not mentioned by Washington. This list of the chief administrators of the new Government must have reassured Lafayette, as well as other friends of the experiment, who wished to see it given a fair trial. They feared that the first administration might be given over to its enemies, who would be inclined to decrease rather than to strengthen its powers. Before the elections, General Lincoln had confessed to his former companion in arms, General Washington, his apprehension lest "the Anti-Federalists would try to get into office men unfriendly to the Constitution and so break it down, or men who would change many of its provisions at an early date." The attitude of the President and of most of his Cabinet, it was well known, was in favour of an efficient central power. John Adams, the Vice-President, had long been an advocate of a stronger frame, and now made good his words by casting the deciding vote in twenty ties in the Senate, every time in favour of centralised authority where there was any doubt involved. By one of these close votes authority was given the President to remove an official without the necessary consent of the Senate. The Constitution was silent on this point, and its decision favourable to the Executive greatly increased the prerogatives of that office.

This summer of 1789 was a time of anxiety for the friends of the new Government. They could scarcely hope that the new machinery had no flaw. At any moment an unforeseen defect might bring the whole to a standstill. Friction fatal to continued happiness might arise between the different departments of the General Government or between it and the component States. The people of some section might refuse to be bound by the General Government. During the heat of debate in the South Carolina Convention, a delegate had defiantly declared that his people would not take part in the new Government, if adopted, if not compelled to do so by force; unless a standing army which the new autocrat would possess should ram it down their throats with the points of bayonets, like the Turkish Janizaries enforcing despotic laws. As time went on and none of these calamities happened, a general confidence took possession of the people. At last they had come into a time of general agreement which would allow the experiment of self-government a fair test. Two States remained out of the Union, but time was expected to bring them in.



CHAPTER VIII

SUMMONING THE GENII OF THE IMPLIED POWERS



Even before the executive part of the new Government had been initiated, Congress attacked the most serious problem it had received from its predecessor. All were agreed that the chief difficulty in carrying on the Revolutionary War had been the lack of sufficient funds. The administration of the Articles of Confederation had been hampered constantly by the same need. The nation was even now millions upon millions of dollars in debt. In order to pay the interest on the French and Spanish loans it had been the custom for several years to borrow more money from the Dutch bankers. This was accomplished with no little difficulty. From the same source John Adams had secured funds with which to install the Government under the Constitution. The President-elect had been compelled to borrow money from a neighbour at Alexandria to meet the expenses of his journey to the capital to be inaugurated.

Public credit both at home and abroad was in ill-repute. To meet the foreign interest and installments due in 1789, over four million dollars must be raised. "Not worth a continental," sighed the merchant as he turned over a heap of depreciated Continental currency in a corner of his strong box. "Acknowledgment to pay by the 'untied States,'" said the owner of a pile of worthless United States certificates of indebtedness. His patriotic zeal in lending money to the National Government in her hour of need now bade fair to ruin him. The veteran of the Revolutionary War carried his half-pay certificate to the money-lender, glad to get even five shillings in the pound for it. Holders of various forms of State indebtedness besieged their State authorities for payment, rapidly approaching a point where they would welcome any agency which would get them their due.

According to Madison, the Continental Congress had chosen such an unseasonable date as the first Wednesday in March for beginning the new Government in the hope of levying a duty at once which would catch the spring importations of goods from Europe. It was this purpose which brought him to his feet in the House of Representatives on the eighth day of the first session to introduce a subject which he declared to be of the first magnitude, and one that required their first attention and their united exertions. This was the deficiency in the national treasury. For a remedy, he had chosen an impost on certain imported goods.

Fortunately, an impost was not a novelty requiring time and instruction to secure. Imposts had been instituted generations before to obtain funds for clearing the seas of pirates and for making safe the merchant marine. Because of these laudable objects, imposts had come to be regarded as a legitimate form of external taxation and as a means of raising a revenue to meet the expenses of government. The American people had been familiar with imposts from colonial times; they had been commonly levied by individual States since independence; and they had been associated in thought with the National Government in the vain attempts to revise the Articles by giving it this method of raising a revenue. "To lay and collect imposts" was indisputably stated in the Constitution as a power of the Federal Government. All that was necessary to do was to determine what goods should be liable to a duty and what the amount of duty should be.

Madison submitted for specific duties a fixed list of articles, which the Congress had determined upon in 1783, at the time it was requesting the States to allow it to collect a duty. The list was made up of rum, molasses, wine, tea, pepper, sugar, cocoa, and coffee. These were regarded at the time as luxuries likely to be consumed by those able to pay the duty. Other imported articles were to have an ad valorem duty. Madison had in mind, as he said, a productive tariff to secure money for the bankrupt national treasury. If more money was needed, the rates could be raised at any time. But early in the debate a member from Pennsylvania moved an amendment adding a number of articles to the specified list. They included beef, butter, candles, soap, boots, steel, cordage, nails, salt, tobacco, paper, hats, shoes, coaches, and spices. "Among these," said he, in explaining his motion, "are some calculated to encourage the productions of our country and protect our infant manufactures." At once, members from States which did not produce these articles protested that the addition of an impost would keep out foreign competition and make them pay higher prices for the goods. Other members from States which produced articles in neither list were equally urgent in getting their special products added. The tradesmen, manufacturers, and others of Baltimore sent in a petition "to the supreme Legislature of the United States as the guardians of the whole empire," begging them to impose on all foreign articles, which were made in America, such duties as would give a just preference to their labours. The shipwrights of Charleston in a petition pictured their distress under the present condition of trade and begged relief by proper legislation. Petitions soon followed from coach-makers, soap-boilers, snuff-grinders, makers of mathematical instruments, manufacturers of sheepskin trousers—in fact, nearly every form of industry wished to take advantage of this opportunity to secure national where they had formerly been able to get only local protection. The members of Congress described in their letters to friends the fish battles, the salt battles, and other manifestations in legislative halls of the cupidity of mankind when opportunity is once presented.

In this way it came about that the first revenue measure in the first session of the first efficient National Legislature brought the members face to face with the question of the purpose for which government exists. The Declaration of Independence had declared it to be the securing of certain inalienable rights with which men are endowed by their Creator. This French conception of certain abstract and general rights had taken in British and colonial minds the very concrete shape of property. It is scarcely just to say that even unconsciously the British people had instituted government for the protection of property and invested interests; but it is within the bounds of truth to say that a large part of the legislation of Parliament, in the formative days of the American colonies, had been inaugurated with this end in view. With the abuses of the monopolies granted by the mother country, the colonists were only too familiar. But the principle had been inherited, and it had been put into practice in the shape of legislative aid granted by colonial assemblies for the inauguration of various commercial and manufacturing enterprises. Sometimes this assistance had taken the form of money; at other times, of a patent or monopoly granted for a number of years. Petitions for such aid had been presented to the Continental Congress at various times. It was not strange that they should appear in the new Congress, as has just been described.

Political parties had not yet been developed, but the debates on this first tariff bill showed a strong tendency to sectionalism, arising from the varied interests of an extensive territory. It was a sectionalism which, if it prevailed, would tend to weaken the Central Government, but, if overcome by compromise or force, would strengthen the national authority by the very fact of the victory. At the time the differences of opinion arising from the various parts seemed so irreconcilable that Madison frequently confessed his despair of getting any tariff measure passed at the session; so early did the sectional interests appear, which were destined later to threaten seriously the very existence of the Union.

If the distillers of Philadelphia, for example, petitioned for a greater discrimination in the duties on rum and on molasses, the citizens of Portland, then in Massachusetts, assured Congress that any duty on the latter commodity would operate injuriously and be attended with pernicious consequences to all the New England States. Once entered upon, this protective policy could not be stopped. By mutually aiding each other, members could get articles added to the protected list more easily than the unorganised opposition could keep them out. By comparing such co-operation with the united efforts by which the first settlers had cleared their fields, the phrase "log-rolling" was invented. Thus it happened that the first import bill, intended by Madison as a measure for raising revenue, was turned virtually into a protective-tariff measure, and was so called in the preamble. Few realised the importance of the change at the time. Madison called it the "collective" bill, and wrote to a friend that it had cost much trouble to adjust its regulations to the varied geographical and other circumstances of the States. However unconsciously done, the principle of protective-tariff legislation by the National Government had been adopted.

It is prophetic of the future to note that in this first debate a difference of opinion was shown to exist concerning the proper function of government. One speaker cited the history of the ancient world to prove that the protection of industries and the establishment of manufactures was a very proper aim of government. Others held to a contrary opinion. Madison was among those who thought that business should be left to take its natural course without government interference. He said:

"I own myself the friend to a very free system of commerce and to hold it as a truth that commercial shackles are generally unjust, oppressive, and impolitic; it is also a truth that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out."

This was the voice of the country member, unaccustomed to the fostering hand of government. It was also the voice of the minority. The Constitution had been framed and adopted by the commercial interests generally, who took quite an opposite view of the duty of government toward business.

No one at this time seemed to feel the potency of the protective principle in enlarging the power of the Union. It was unseen until fully developed some thirty years later. Yet to appreciate the full force of this tariff bill of July 4, 1789, with its protective preamble, as a sample of Union-making legislation, one need only consider the gratitude which the National Government has won through such protective measures; the attachment of leading men to the Union from guarding their interests; the accumulated strength of moneyed interests in time of danger to the Republic; the use made of the tariff in protecting workingmen; the revenue derived from high tariffs, which has been spent on public improvements; and the force of public opinion which has been frequently rallied by both employer and employee to the support of the execution of a national revenue law.

Above all members of the first administration, Hamilton stood for an efficient National Government. He saw opportunity in the administration and interpretation of the written document to correct the weak places which he had sought in vain to avoid when the frame was being made. A constructive genius by birth, a financier by study, a leader of men by nature, Hamilton had, in the Treasury Department, that function of the new Government which needed the most strengthening, and in its present condition the necessity which would support the strongest measures. Called upon by Congress at the time of its first adjournment to inform them of the exact financial condition of the country, he drew up an exhaustive report showing that the National and State governments together owed something like fifty-two millions of dollars. The national obligation to-day is twenty times that sum. Its proportion to eighty millions of people is not much less than the fifty-two millions were to the three and a half millions of people who faced the debt of Hamilton's time. But the debt now is of fixed form and assured payment before it is incurred. The debt which Hamilton presented to Congress was heterogeneous in form and without means of payment. Arguing that a national debt properly funded had contributed largely to the prosperity of Great Britain, Hamilton proposed to collect all these evidences of debt into a national obligation, which would bring interest to its holders until paid. The faith of the United States toward its creditors must be redeemed. To secure a revenue with which to pay this interest and evidently to redeem the principal in addition to meeting the running expenses of the Government was the first task. Hamilton proposed to place additional duties on imported goods and to lay a tonnage on vessels using American ports, the latter of which he estimated would yield more than a million dollars. He would also put an excise on distilled spirits manufactured in the United States and on those imported, both bringing in nearly three million dollars. The profits of the post-office he estimated at almost a million dollars annually, to be applied also to the national expenses.



The members of Congress, at the subsequent session, with remarkable unanimity, concurred in these recommendations of the Secretary of the Treasury for the redemption of the national obligations, including both the debt owed to foreign nations and that incurred to domestic holders during the exigencies of the war. But upon another proposition, that the United States should assume the debts incurred by the several States during the war, there was strong opposition. It was said that such action would lead to speculation and stock-jobbery in buying up these debts and converting them into new forms. The original holders had long since disposed of them to brokers, who would be enriched by national legislation. It was the old clash between the moneyed and the moneyless classes. Although the action would be a direct interference of the National Government with State affairs, the debates turned on economic rather than constitutional grounds. If Hamilton had the foresight with which he is credited by his admirers, if he saw that the allegiance of the people would gradually be won away from the States to the Central Government because the latter was redeeming promises which the States had long been endeavouring to meet, if he was taking advantage of the selfishness and cupidity of the deeply indebted States, there is no evidence to show that the States saw or appreciated the danger.

Virginia, whose representatives bore the brunt of the opposition, had a source of revenue in her western lands from which she could easily discharge her obligations, and naturally had no desire to share the liabilities of others. But her State Legislature, after Hamilton agreed with Jefferson to buy off the Virginia opposition in Congress by locating the national capital on the Potomac, protested in strong and exact terms against the State-debts-assumption proposition. These resolutions recited that the people of Virginia had adopted the Federal Constitution under the impression and upon positive condition that "every power not granted was retained," and that they had read the document in vain to find the right given to assume the debts of the States. Here, within two years after the adoption of the Constitution, was a State Legislature protesting against the usurpation of power under it. It was the first of many futile protests.

Hamilton, sending a copy of the Virginia resolutions to Jay, saw "the first symptom of a spirit which must either be killed or will kill the Constitution of the United States." He thought the collective weight of the different parts of the Government ought to be employed in exploding the principles they contained. Theoretically, the Legislature of Virginia may have been correct in its attitude; but no theoretical protest could avail against the worthy sentiment that the entire national credit must be restored, backed by the practical demands of the creditors, and by the desires of those who saw an opportunity of investment or speculation.

Those people, both officials and citizens, who took the stand in these formative days of political parties that the Federal Government should be restricted in its workings to the powers expressly given to it in the Constitution, a "strict construction" of that document, as they called it, were generally country bred, of the borrowing rather than the lending class, depending upon individual initiative rather than mass action, strangers to the paternal aspects and fostering hand of government, and inexperienced in the intricacies of finance. Gen. Henry Lee, of Virginia, complained to Madison of the complexity of Hamilton's plan. "It departs," replied Madison, "from that simplicity which ought to be preserved in finance more than anything else." Inability to comprehend naturally breeds suspicion.

Hamilton's followers were, for the most part, from the Northern and Middle States, city dwellers, money-lenders rather than borrowers, business men, and manufacturers, who saw no wrong in having the Government promote the general welfare by legislation. The sudden revival of business which followed the adoption of Hamilton's plan to redeem all the debts seemed to them both natural and legitimate. The other group looked upon the entire matter as a corrupt transaction, contrived by Hamilton, and a prostitution of government from its legitimate purposes. Madison wrote that just before the report came out the value of the various forms of debt rose from a few shillings to eight or ten shillings in the pound, and that emissaries were still exploring the interior and distant parts of the Union in order to take advantage of the ignorance of the holders. To meet the occasion Jefferson invented the phrases, "corrupt squadron," "stock-jobbing herd," and "votaries of the treasury," upon which he rang the changes during a long lifetime.

To this indignation was added dismay when the effects of national assumption of State obligations began to be appreciated; when creditors who had besieged the State treasury for years found the Union satisfying their just demands; when the evidences of national government, which had heretofore been confined to a wandering Congress, began to appear at every hearthstone. A realisation of these results brought from Jefferson the complaint that he had been duped by Hamilton in the assumption-capital bargain; that he had been "most innocently and most ignorantly made to hold the candle for a wicked scheme."

A similar aggrandisement of the National Government was the motive, according to the eulogists of Hamilton, which prompted him to make a suggestion for another novelty, a United States bank. Ostensibly he claimed that it would have the effect of bringing immediate financial relief, as well as safeguarding the future. The arguments presented by him to Congress for the incorporation of a bank in which the National Government should be a stockholder were purely utilitarian. The bank would benefit the public by offering an opportunity for the investment of capital. It would benefit the Government by lending it money in an emergency and by collecting its revenues. Its notes would also form a circulating medium. The bill drawn by Hamilton incorporating such a bank passed the Senate without material change and without a division. One Senator from Pennsylvania, suggesting amendments to his colleague, was informed that Hamilton's father-in-law, a Senator from New York, had said Hamilton did not wish the bill altered. The hopeless minority in the Senate claimed that the chances of subscribing to the proposed bank, guaranteeing an investment at six per cent, for twenty years, won many to its support. They also saw here another link in the chain which Hamilton was welding about the States. The debts having been assumed, the certificates would be accepted as subscriptions to bank stock. Thus one measure would be made to play into another.

In the House, the right of the Federal Government to found a bank was attacked by Madison, who here parted from Hamilton, with whom he had laboured in getting the Constitution adopted. The line-up of parties had begun. Madison found himself opposed to the way in which the Government was being perverted by Hamilton under the Constitution. His speech is the first extensive exposition of the doctrine of strict construction of the written instrument; that the central power must be held strictly to the powers numerated in the document. Strict construction exhibits the vice of a written Constitution—the impossibility of growth or even continued life within the bonds of the written word. Stagnation and death must result from binding the limbs of the body politic. Loosening by interpretation is the remedy. Madison was correct in saying that the right to incorporate bodies was proposed in the Philadelphia Convention and abandoned; that the power to incorporate a bank was nowhere given in the Constitution to the Federal Government; that banking was presumed to be a matter for State control; that in all the debates and papers written on the Constitution it was understood that "the powers not given were retained; and that those given were not to be extended by remote implications."

In reply, Boudinot did not deny that all powers, vested heretofore in any individual State, and not granted by this instrument, were still retained by the people of such State and could not be exercised by Congress. But he then showed that the power to incorporate the bank was "drawn by necessary implication" from those expressed. The preamble declared in general terms the objects of the Constitution; one of the expressed functions under it was "to borrow money"; and the circle was completed by the liberal clause to "make all laws necessary and proper for carrying into execution the foregoing powers." Now to provide for the general welfare it might be necessary to borrow money; a bank was essential to the borrowing of money in adequate sums; therefore the power to establish a bank was deduced by the strongest and most decisive implication.

Here was the first complete exposition of the doctrine of a loose construction for the wording of the Constitution. If that be correct reasoning, said the opposition, the Constitution may as well stop with the preamble, since there is no power under heaven which could not be exercised within its limits. It would mean the consolidation of all powers, and the practical extinction of local government. The attitude of the two sides in the debate may be shown by one illustration employed. Suppose the power to make a treaty or to raise an army had been omitted from the Constitution, asked the Hamiltonians, could the National Government in an emergency assume such rights from the preamble and the powers expressed? Must it hesitate and temporise while the blood of its citizens was being shed? Such an assumption of power, replied the strict interpreters, might be excusable in an emergency, but could be warranted as a practice only by an amendment to the Constitution made in the manner it prescribed.

The present situation and the compelling force which had produced it were manifest when those who favoured giving the Union such implied powers as would make it effective pointed out many instances of implication of which Congress had already been guilty; such as accepting land for lighthouses, defining crimes under power to establish courts, and even creating corporations in the shape of the North-West and the South-West territories. One of these lesions of the written word, that which interpreted a clause so as to give the President power over removals from office, Madison himself had favoured.

This first constitutional debate also outlined the geographical sectionalism which has penetrated and influenced every feature of American political as well as commercial and social life. The Northern and Middle States contained the cities, made up of the trading class, whose capital was chiefly in ready money. The capital of the rural dwellers of the South was in land and slaves, not easily converted into cash. The latter became the borrowing, the former the lending section. The spirit of unionism was engendered in the first by reason of their urban life, their commercial employment, and their frequent contact in business. The feeling of individualism was as naturally bred in the latter by their rural surroundings, their agricultural occupation, and the self-reliance induced by their solitary environment. The opposition to the Constitution in Massachusetts, Rhode Island, New York, and Pennsylvania had been confined almost entirely to the country. The rural States of Virginia, North Carolina, and South Carolina did not adopt the new frame without a struggle. Georgia was a Southern exception; but population dwelt so exclusively along the coast in the new State of Georgia that it was really a commercial State, settled largely by New Englanders.

The mercantile class of the Northern and Central States, after Anti- Federalism had been silenced by the success of the new Government, was ready to adopt the theory of loose construction or interpretation by inclusion, which would tend toward the realisation of a more potent union. At the same time, a bank, supported by the patronage of the National Government, with no danger of competition for twenty years, offered not only a security for capital against such dangers as it had previously known, but also, through its branches, an extended agency for transacting business. Many details of the bill, such as the advantages given to holders of national rather than State certificates in subscribing for stock, contributed to the sectional division. The national certificates were held in the commercial centres. The influence of the city of New York, where the Congress met, no doubt contributed to the passage of the bank and other commercial measures.

Precisely the opposite feelings held in the Southern States. Every vote cast in the House against the bank came from Maryland or a State to the south of it. There were a few scattering votes from the Southern States in favour of the measure, but as a whole political lines were here unconsciously drawn for a century to come, if not for the entire existence of the Republic. The "court and country" parties of colonial days had been born again.

Many of the members were surprised to find sentiment toward these financial measures assuming such a sectional trend. Sectional interests had been only too manifest in the convention, but compromises had settled them, presumably for ever. Compromise is only a relief; it is never a remedy. After each compromise in American history it has been a matter of surprise to the participants that others were needed. On the bank bill, a member wrote to a correspondent: "You may think it unaccountable, but so it is that the differences in climate seem to govern the opinions on this bill, and Potomac seems to be near the dividing line with few exceptions."

Virginia was the leader of the section south of the Potomac, and Jefferson was the leader of Virginia. Although debarred from the congressional debates by his Cabinet position, he filled his letters to his friends with warnings against the dangerous assumptions of the Hamilton measures. In response to Washington's inquiry to his Cabinet upon the constitutionality of the bank, Jefferson drew up a paper setting forth in strong terms his opinion that the Central Government had no power to engage in business. Hamilton presented an equally strong argument for the bank in his reply.

Madison, the leader of individualism in the House, could not agree with Hamilton's interpretation of the "general welfare" clause of the Constitution. The former co-labourers for efficient government parted at this point. Madison thought the adoption of such an interpretation would change the National Government from a limited one, possessing certain specified powers, to an indefinite one, subject only to particular exceptions. The phrase concerning "the general welfare" had been taken from the Articles, he said, where it was understood to be nothing more than a general caption to specified powers, and had been retained because it was less liable to misconstruction than any other. Whatever had been the original intent, the spirit of the implied powers had been summoned from the vasty deep of uncertainty to aid in making a confederated republic from confederated States.



CHAPTER IX

NATIONAL CENTRALISATION



No one can accuse Hamilton of failing to take advantage of these formative years in giving the new Government a strong bias toward centralisation. Although opposed by Jefferson, Madison, and Richard Henry Lee, Hamilton had the assistance of Knox, and frequently of Randolph, in the Cabinet, as well as Fisher Ames and others in Congress. He also possessed the esteem and confidence of the President, and the advantage which the commercial environment of New York as well as the influence of the Schuyler family alliance could give him.

Among his numerous suggestions to Congress for cancelling eventually the eighty million dollars of the national debt, to which business men of the Northern States were subscribing freely, was an excise. Although this debt, the "Hamiltonian debt," as the Jeffersonians called it, was an iniquitous burden saddled upon the common people, an excise was to them a most offensive way of meeting it. Being for the most part agriculturists and country people, accustomed in regions far from markets to manufacture their grain into spirits, they were not likely to be persuaded that the consumer pays the tax in the end. It was a direct tax, and, although constitutional, in form the most obvious and objectionable. To have an inspector prying into your private affairs in this manner was in ill-accord with the freedom for which America stood. To put a tax on a still and its product was to them equivalent to taxing their hand-mills and the meal or flour thus produced.

Having secured the passage of the excise tax as a permanent source of income, Hamilton turned to meet the most pressing national obligations. To pay the interest on the foreign debt, he had arranged a loan from Holland. To provide money for circulation at home he revived the oft-repeated project of a national mint, which should coin gold, silver, and copper coins of a decimal denomination, the gold bearing a ratio to the silver of one grain to fifteen grains. This ratio he arrived at by making a computation of the respective amounts of these two metals available in the world. It is interesting to note that the ratio has changed but little in a century. Hamilton also drew up an exhaustive report on the sources and conditions of American manufactures, with a strong plea for the encouragement, by a protective tariff, of such industries as had already been established.

The influence of Hamilton and the Federalist majority in both branches of Congress made possible the adoption of these so-called "Hamilton measures" as rapidly as they were suggested by him. They have been praised, and justly praised, because they restored the public credit of the National Government both at home and abroad. The receipts for the first time met the expenditures. Never before had the national resources been so adequately provided and so judiciously administered. Hamilton's financial measures must also be praised because they first demonstrated the efficiency of the new Government over the old form. They made the first serious inroads on the affection which the people had uniformly bestowed upon the individual States. They mark great steps toward the centralisation of the National Government at a time when they were most needed.

Nor did Hamilton, in his great constructive statesmanship, neglect the details of his department, although a complete organisation awaited the painstaking Gallatin a few years later. The States were divided into fifty-nine collection districts regardless of State lines except as they suited the purpose. Each district was supplied with all the machinery necessary for collecting the duties levied by Congress from time to time. Since the Treasury Department was so closely connected with foreign commerce, Congress placed under its control all lighthouses, beacons, buoys, and public piers, as soon as they might be ceded by the individual States in which they were located and which had constructed them. At the time, no other disposition was possible; but few foresaw the resulting effect upon the unification of the States. By another act, the Treasury Department was given charge of the registration and clearing of vessels. A duty of six cents a ton was placed upon the carrying capacity of American vessels, and fifty cents a ton upon foreign vessels. The fondness for discriminating in favour of home interests was manifested so early and in so many different directions that it could scarcely have been generic; it must have been absorbed in the mother's milk of British colonialism in the eighteenth century.

The necessity for these measures was so manifest, and the popularity and the novelty of the new Government at first so attractive, that little resistance was met with in passing them and still less in enforcing them. Resistance to national measures and neglect of national duty were no longer a menace to national existence, because the nation now possessed the power of compulsion in a Federal judiciary. Upon the day named in the judiciary act, the first Monday in February, 1790, the Supreme Court held its initial meeting in the court-room of the New York Exchange, which had been prepared for its use. According to the newspapers "the jury from the district court attended; some of the members of Congress, and a number of respectable citizens also." Several meetings of the Supreme and district courts were held at this session, a seal was adopted by the former, and several attorneys admitted to practice before it; but there were no cases to be heard. The term closed with a banquet given by the grand jury of the district court to the justices and officers of both courts at Fraunce's Tavern in Cortland Street. So gradually did appellate and original cases find their way into the Supreme Court that three sessions were held before it had a case on its docket. The legislative function of government was, at that time, the most important and formed the basis of popular hope. Time has gradually transferred this dignity and trust to the judiciary department, whilst the legislative—national, State, and municipal alike—has lost in public confidence and esteem.

The Federal judiciary, as the most novel feature, was apt, in making a place for itself, to come into conflict with older agencies. Within three years it gave a hearing to a citizen of South Carolina, who had sued the sovereign State of Georgia on a money claim for damages. Although the Constitution implicitly gave jurisdiction to the Supreme Court over controversies between a State and citizens of another State, the Legislature of South Carolina refused to pay attention to the suit, insisting that the retained sovereignty of the State could not be impaired by a clause of the Constitution. By four to one, the justices of the Supreme Court held that South Carolina, by the act of entering the Federal Union, was bound by all provisions of the Constitution. Justice Wilson, of Pennsylvania, thought the question involved even a higher point—do the people of the United States form a nation? Many commentators on the Constitution before its adoption, including even Hamilton himself, in commenting on this clause had assured the people that it was not rational to suppose a sovereign State could be dragged before the national tribunal. Yet it had been done within three years after being put in force.