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THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES

THE FRAMING OF THE CONSTITUTION

OF THE UNITED STATES

BY

MAX FAKRAND

NEW HAVEN AND LONDON YALE UNIVERSITY PEESS

TO A. LAWRENCE LOWELL

PREFACE

For over ten years the writer has been engaged in collecting and editing the material available upon the work of the convention that framed the constitution of the United States. Collating of texts is a wearisome and often merely a mechani- cal task, but in the process the editor becomes more or less familiar with the content of the docu- ments. In the present instance the form in which the work finally shaped itself required a knowledge of the proceedings of the convention not merely as a whole, but from day to day, and it necessitated a familiarity with the thought and expressions of the individual members. When to this was added an acquaintance with the person- alities of the more important delegates, a mental picture of the convention was formed which de- veloped into a conviction as to what the delegates were trying to do and what they actually accom- plished.

It is with no idea of attempting the final his- tory of the formation of the constitution that the present book is written. If there be any truth in the epigrammatic definition that "history is past politics," it is equally true that, in the case

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PREFACE

of an institution still existing, history is present politics as well. So long as it remains the instru- ment under which the government of the United States is conducted, it is doubtful that any one, any American at least, can write the final word regarding the framing of our constitution.

Nor is this intended to be a complete history. It is a brief presentation of the author's personal interpretation of what took place in the federal convention. It is merely a sketch in outline, the details of which each student must fill out according to his own needs.

This book is founded upon the work the author has already referred to as edited by himself, The Records of the Federal Convention (New Haven, Yale University Press, 1911. 3 vols.)* In the writing of it scarcely anything else has been used. The Records are so arranged as to- render most of the citations easily found, and accordingly, with few exceptions, all footnote references have been omitted.

During the years that the work of editing and writing has been in progress, the author has pre- sented this subject for study to classes, both graduate and undergraduate, at different institu- tions. To the members of those classes who have endured the exploitation of his pet theories and ideas, who have themselves suggested new points of view, and who have stimulated him to his best

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PREFACE

efforts, the author would acknowledge his grate- ful indebtedness.

Mr. E. Byrne Hackett, in his capacity as manager of the Yale University Press, has taken the greatest interest in the mechanical make-up of this book. In a personal and purely friendly way he also read the entire manuscript and made suggestions which resulted in its better- ment. For his co-operation the author is heartily appreciative.

M. K

New Haven, November 8, 1912.

CONTENTS

Preface vii

CHAPTER PAGE

I. The Calling of the Federal Convention . 1

II. The Convention and Its Members . . 14

III. The Defects of the Confederation . . 42 IV. The Organization of the Convention . 54

V. The Virginia Plan 68

VI. The New Jersey Plan 84

VII. The Great Compromise 91

VIII. After the Compromise 113

IX. The Committee of Detail 124

X. Details and Compromises 134

XI. The Election of the President . . . 160

XII. Finishing the Work 176

XIII. The Completed Constitution .... 196

APPENDIX :

I. The Articles of Confederation . . . 211

II. The Virginia Plan 225

III. The New Jersey Plan 229

IV. The Constitution of the United States . 233 V. The Amendments to the Constitution . 252

Index 261

THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES

CHAPTER I

THE CALLING OF THE FEDERAL CONVENTION

Democratic government was on trial before the world. Thirteen British colonies had asserted and established their independence be- cause they declared the form of government under which they had been living was destructive of their "unalienable rights" of "life, liberty and the pursuit of happiness." Each of those colon- ies had established a government of its own, and together they had formed a union of "Ti^CFiriffe^ States of America" by measm*>f certain articles of confederation* The individual state govern- ments were proving fairly satisfactory, but the union was not Its inadequacy had become more and more evident as the war for independence had continued and the strain of the struggle had grown harder to endure. As long as the war was in progress, the states had held together through sheer necessity; but as soon as the war was over, the selfishness of the individual states was assert- ing itself and the union was in danger of disinte- gration. The thirteen united states of America had renounced their allegiance to Great Britain,

[1]

THE FRAMING OF THE CONSTITUTION

because the latter country no longer governed them well, and it now appeared as if they were unable to govern themselves. If the people of the United States were to prove their right "to assume among the Powers of the earth, the sepa- rate and equal station to which the Laws of Nature and of Nature's God entitle them," they must show themselves capable of establishing and maintaining an efficient government. To justify themselves before the world and to justify them- selves in their own eyes, an effective union was essential.

The articles of confederation represented the first essay in united government that the newly independent states had made. When their con- gress in June, 1776, appointed a committee to draft a declaration of independence, it appointed another committee to prepare a "form of con- federation," and the latter committee made its report shortly after the Declaration of Independ- ence was adopted. The difficulty of establishing a union may be inferred from the fact that the plan submitted by 'the committee was the subject of intermittent discussion in congress for over a year and when the amended plan was referred to the states for ratification it was i

Although the articles of confederation were thus not formally in operation WttiiK^^f, congress

[2]

CALLING OF THE FEDERAL CONVENTION

seems to have followed a procedure in accordance with them, so that the experience of the confed- eration extended over a longer time than the official dates indicate, and really began with the establishment of independence.

The one central organ of the newly established government was a congress, which might well have been termed a congress of states : in it all the states were upon an equal footing, each with a single vote, and the delegation from each state was composed of not less than two nor more than seven members, who were appointed annually in whatever way the legislature of each state directed, who were maintained at the expense of their respective states, and who were subject to recall at any moment. To the congress thus con- stituted quite extensive powers were granted, but with two important limitations : none of the more important powers could be exercised "unless nine States assent to the same," which was equivalent to requiring a two-thirds vote; and when a deci- sion had been reached there was nothing to compel the states to obedience except the mere declaration in the articles that "every State shall abide by the determinations of the United States in Congress assembled." Executive there was none, beyond the committees which the congress might establish to work under its own direction, and the only federal courts were such as congress

THE FRAMING OF THE CONSTITUTION

might appoint for the trial of piracy and felony on the high seas and for determining appeals in cases of prize capture.

Under such conditions the decisions of con- gress were little more than recommendations. This was amply shown in the all-important matter of obtaining funds. The articles pro- vided that the national treasury should "be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person." Congress was to determine the amount of money needed and to apportion to each state its share. Congress did so, but the states honored the requisitions exactly to the extent that each saw fit, and congress had no power and no right to enforce payment. What was the result? If one may judge by the com- plaints that were entered, it was more profitable to disobey than to obey. In the dire straits for funds to which it found itself reduced, congress took advantage of the lack of information on land values to juggle with the estimates, so as to demand more of those states that had previously shown a willingness to pay.

The financial situation was so serious that early in 1781, before the articles had been finally ratified, congress had already proposed to the states an amendment authorizing the levy of a five per cent duty upon imports and upon goods

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CALLING OF THE FEDERAL CONVENTION

condemned in prize cases. The amendment was agreed to by twelve states. But another weak- ness of the confederation was here revealed, in that the articles could only be amended with the consent of all of the thirteen states. The refusal of Rhode Island was sufficient to block a measure that was approved of by the twelve others. In 1783 congress made another attempt to obtain a revenue by requesting authority for twenty-five years to levy certain duties, and by recommend- ing for the same term of twenty-five years that the states should contribute in proportion $1,500,000 annually, the basis of apportionment being changed from land values to numbers of population, in which three-fifths of the slaves should be counted. In three years only nine of the states had given their consent and some of those had consented in such a way as would have hampered the effectiveness of the plan. It was, however, the only relief in sight and in 1786 congress made a special appeal to the remaining states to act. Before the end of the year, all of the states had responded with the exception of New York, Again the inaction of a single state effectually blocked the will of all the others.

Matters of commerce were inseparably asso- ciated with those of finance and were at this time of equal moment. In 1784 congress made an appeal to the states in which it was said: "The

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THE FRAMING OF THE CONSTITUTION

situation of Commerce at this time claims the attention of the several states, and few objects of greater importance can present themselves to their Notice. The fortune of every Citizen is interested in the success thereof; for it is the constant source of wealth and incentive to indus- try; and the value of our produce and our land must ever rise or fall in proportion to the pros- perity or adverse state of trade." The people of the United States seemed to be surprised and even resentful that their political independence had resulted in placing them outside of the British colonial system. As British colonists they had protested against the restrictions of the navigation acts, but they found those acts still more obnoxious when enforced against them- selves as foreigners. Trade was adjusting itself to the new conditions and seeking new outlets, but until this had developed to a sufficient extent to make itself felt, the only possible policy, according to the prevailing conceptions of the time, was that of retaliation. The purpose of retaliation was to force other countries, and Great Britain in particular, to make concessions in favor of the United States, It was for this purpose that congress appealed to the states in 1784. It was virtually a navigation act for which power was requested and only for the term of fifteen years. All of the states responded, but

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CALLING OF THE FEDERAL CONVENTION

with so many conflicting qualifications and conditions that the attempt was again a failure.

Pending a grant of power to congress over matters of commerce, the states acted individu- ally. A uniform policy was necessary, and while a pretense was made of acting in unison to achieve a much desired end, it is evident that selfish motives frequently dictated what was done. Any state which enjoyed superior condi- tions to a neighboring state was only too apt to take advantage of that fact. Some of the states, as James Madison described it, "having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on. New Jersey, placed between Philadelphia and New York, was likened to a cask tapped at both ends ; and North Carolina, between Virginia and South Carolina, to a patient bleeding at both arms." The Americans were an agricultural and a trading people. Interference with the arteries of commerce was cutting off the very life-blood of the nation, and something had to be done. The articles of confederation provided no remedy, and it was evident that amendments to that document, if presented in the ordinary way, were not likely to succeed. Some other method of procedure was necessary, and a promising way had already opened.

THE FRAMING OF THE CONSTITUTION

Virginia and Maryland had come to a working agreement regarding the navigation of Chesa- peake Bay and some of its tributary waters, and those two states had requested the co-operation of Pennsylvania and Delaware. This whole pro- ceeding was distinctly unconstitutional, for the articles of confederation specified that all such agreements must receive the consent of congress and that had not been obtained. But whether illegal or not it seemed to be an effective way of working, and in 1786 it was tried on a larger scale. Early in that year Virginia appointed commissioners "to meet such commissioners as may be appointed in the other states of the Union, at a time and place to be agreed on, to take into consideration the trade of the United States." This proposal for a general trade con- vention seemed to meet with approval, and the Virginia commissioners, two of whom were James Madison and Edmund Randolph, then named Annapolis and the first Monday in September, 1786, as the place and the time.

In spite of the apparently favorable attitude towards it, when the time for the convention arrived only five states were represented. At least four other states had appointed com- missioners, but the individuals had not hastened their attendance. With so small a number pres- ent it was impossible for the convention to accom-

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CALLING OF THE FEDERAL CONVENTION

plish the purpose of its meeting; but with the advance in public opinion, the commissioners did not hesitate to recommend another convention of wider scope. The French representative in this country wrote home to his government, what was evidently whispered among the elect, that there was no expectation and no intention that anjT- thing should be done by the convention beyond preparing the way for another meeting, and that the report was hurried through before sufficient states were represented to be embarrassing.

Alexander Hamilton was greatly interested in this whole movement for the betterment of con- ditions ; he took a leading part in the Annapolis trade convention, and is supposed to have drafted its report. Whether or not there is any truth in the assertion above, that Hamilton thought it advisable to conceal his purposes, there is no doubt that the Annapolis convention was an all- important step in the progress of reform. Its recommendation was the direct occasion of the gathering of the convention that framed the constitution of the United States.

The recommendation, which the Annapolis delegates made, took the form of a report to the legislatures of their respective states, in which they referred to but did not enumerate "impor- tant defects in the System of the Foederal Gov- ernment," which were "of a nature so serious as,

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THE FRAMING OF THE CONSTITUTION

... to render the situation of the United States* delicate and critical, calling for an exertion of the united Virtues and Wisdom of all the Mem- bers of the Confederacy." They were accord- ingly "of Opinion, that a Convention of Depu- ties from the different States, for the special and sole purpose of entering into this investigation [of determining what the defects were] and digesting a Plan for supplying such defects" was the best method of procedure. To give their proposal a more concrete form they finally sug- gested that their respective states should "use their endeavours to procure the concurrence of the other States, in the Appointment of Com- missioners to meet at Philadelphia on the second Monday in May next, to take into Consideration the situation of the United States to devise such further Provisions as shall appear to them neces- sary to render the Constitution of the Foederal Government adequate to the exigencies of the Union; and to report such an Act for that pur- pose to the United States in Congress Assem- bled, as when 'agreed to by them and afterwards confirmed by the Legislatures of every State* will effectually provide for the same."

The Virginia legislature acted promptly upon this recommendation and, as no method was specified, very naturally followed its practice in providing for the representation of the state

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CALLING OF THE FEDERAL CONVENTION

in congress by appointing a similar delegation to go to Philadelphia. This precedent of appointing a delegation similar to its delegation in congress was followed by the other states. JNew Jersey took action almost at the same time as Virginia, and actually named her deputies in advance of that state. Within a few weeks, Pennsylvania, North Carolina, Delaware, and Georgia had also made appointments. As yet congress had not given its approval of the plan, and many people in the United States doubted that such a meeting could accomplish anything without having the sanction of the only body authorized by the articles of confederation to propose amendments. This last obstacle was removed, however, on February 21, 1787, when congress adopted a resolution in favor of a con- vention, and embodied the suggestions of the Annapolis report as to time and place.

Before the time fixed for the meeting of the Philadelphia convention, or shortly after that date, all of the other states had appointed depu- ties with the exception of New Hampshire and Rhode Island. New Hampshire was favorably disposed towards the meeting, but owing to local conditions failed to act before the convention was well under way. Its deputies, however, arrived in time to share in some of the most important proceedings. Rhode Island alone

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THE FRAMING OF THE CONSTITUTION

refused to take part, though a letter signed by a committee of merchants, tradesmen, and others, was sent to the convention expressing their regret at Rhode Island's failure to be represented and pledging their influence to have the result of the deliberations approved and adopted by the state.

The federal convention was thus summoned to meet in Philadelphia on the second Monday of May, 1787. It was authorized by congress, and it was shared in by twelve of the thirteen states comprising the confederation. Whatever complex of causes there may have been, the sequence of events resulting in this convention was, as outlined, the apparent impossibility of obtaining from the states the necessary amend- ments to vest in congress adequate powers in taxation and commerce, the calling of a trade convention, and then the calling of ^ general convention.

CALLING OF THE FEDERAL CONVENTION

NOTE

THE THIRTEEN UNITED STATES WITH DATES OF THEIE FIRST CONSTITUTIONS

New Hampshire . . . 1776

South Carolina .... 1776

Rhode Island1 .... 1776

Virginia ..... 1776

New Jersey .. . . . 1776

Delaware ..... 1776

Pennsylvania .... 1776

Connecticut2 .... 1776

Maryland .... 1776

North Carolina .... 1776

Georgia 1777

New York .... 1777

Massachusetts .... 1780

1 Continued tinder charter of 1663,

2 Continued under charter of 1663.

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CHAPTER II

THE CONVENTION AND ITS MEMBERS

VIRGINIA had been the first state to act upon the suggestion of the Annapolis report and it followed its practice in providing for the state's representation in congress. The appointment of seven deputies was ordered by joint ballot of both houses of the legislature, any three of whom were authorized to join with the deputies from other states "in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Foederal Constitution adequate to the Exigencies of the Union and in reporting such an Act for that purpose to the United States in Congress as when agreed to by them and duly confirmed by the several States will effectually provide for the same." It will fee

- tin*, & •

The modifications are slight and if they have any significance, they indicate a willingness on the part of Virginia to render the work of the convention effective.

At the head of its deputation Virginia placed the leading citizen of the state, and the leading

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THE CONVENTION AND ITS MEMBERS

citizen of the United States as well, George Washington. He was then fifty-five years of age and at the height of his popularity. The suc- cessful outcome of the Revolution had effectually silenced all criticism of his conduct of the war and his retirement to Mount Vernon had appealed to the popular imagination. The grati- tude of a people, as yet unmixed with envy and undiminished by the rancor of party bitterness, placed him upon the very pinnacle of public favor. The feeling towards him was one of devo- tion, almost of awe and reverence. His presence in the convention was felt to be essential to the success of its work and, much against his will, Washington was finally persuaded to accept the appointment.

Patrick Henry was the second on the list, but declined to serve. The next year he came out in bitter opposition to the constitution. Dr. Grigsby, the historian of the Virginia state con- vention of 1788, reports that when asked why he had not taken his seat in the federal convention and helped to make "a good Constitution instead of staying at home and abusing the work of his patriotic compeers? Henry, with that magical power of acting in which he excelled all his contemporaries, and which before a popular assembly was irresistible, replied: 'I smelt a Rat.' " To the vacancy caused by Henry's

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THE FRAMING OF THE CONSTITUTION

refusal the governor appointed Dr. James McClurg, a learned physician, but with little experience in public life. Richard Henry Lee and Thomas Nelson were also elected but declined to serve.

The next on Virginia's list was the governor of the state, Edmund Randolph, Thirty-four years old, portly and nearly six feet tall, he had a remarkably handsome face with large and bril- liant dark eyes. His manners were dignified and polished. He usually showed an excellent command of language and appeared well in debate. As a leader he was wanting in decision, as a figurehead he was splendid.

Then came John Blair, whose learning and ability had made him a judge in the highest courts of Virginia. Courteous, gentle- mannered, and particular in dress, he was, as one of his fellow-delegates, Pierce of Georgia, remarked, "one of the most respectable Men in Virginia, both on account of his Family as well as fortune/51 He was no orator, and he never played a conspicuous part, "but his good sense, and most excellent principles, compensate for other deficiences."

1 William Pierce of Georgia left a series of brief character sketches or notes of his fellow-delegates, evidently jotted down at the time. Original, and very interesting, they have been of material service in the preparation of this chapter. Most of the direct quotations are taken therefrom.

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THE CONVENTION AND ITS MEMBERS

James Madison was the most inconspicuous of the Virginia delegation. He was slender, under medium height, retiring in manner and "always dressed in black." He was a student of history, methodical and indefatigable. But Madison took an active part in public affairs, and at thirty-six he had held various official posi- tions in Virginia and twice represented his state in congress. Pierce described him by saying that "every Person seems to acknowledge his great- ness. He blends together the profound poli- tician with the Scholar. . . . and tho? he cannot be called an Orator, he is a most agreeable, eloquent and convincing Speaker. . . . The affairs of the United States, he perhaps, has the most correct knowledge of, of any man in the Union." Madison was essentially a scholar in politics.

Two notable men completed this remarkable deputation. One was George Wythe, fifty-five years old, a signer of the Declaration of Inde- pendence, "the famous professor of law" at William and Mary, and for ten years a chan- cellor of the state. The other was George Mason, the author of the Virginia Bill of Rights and at sixty-two the rival of Patrick Henry in popular estimation as the champion of the rights of the people and of the states. According to Madison, he possessed "the greatest talents for

THE FRAMING OF THE CONSTITUTION

debate of any man he had ever seen or heard speak." He was a gentleman of the old school, courtly but self-willed.

NEW JERSEY, the next state to act, appointed four commissioners and later increased the num- ber to six, any three of whom were to represent the state "for the purpose of taking into Con- sideration the state of the Union, as to Trade and other important Objects, and of devising such other Provisions as shall appear to be neces- sary to render the Constitution of the Federal Government adequate to the exigencies thereof."

The delegation from this state was hardly equal to that of Virginia either in reputation or ability, although it contained some notable men. David Brearley, forty-one years old, was the chief justice of the state. He was an able, though not a brilliant man, and of a tempera- ment and character that won and retained for him the complete respect of the people. William C. Houston, for twelve years a professor of mathematics at Princeton, admitted to the bar after he was forty, had been appointed clerk of the state supreme court, and had been one of the delegates to the Annapolis convention. William Paterson, born at sea of Irish parents, now a man of a little over forty and another of the delegates to Aiuiapolis, had been a member of the continental congress. He had also been

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THE CONVENTION AND ITS MEMBERS

attorney-general of his state for eleven years. Short in stature, unassuming in appearance and manner, Paterson was all the more astonishing in debate, where he revealed wide knowledge and great ability.

William Livingston, the governor of the state, who was also noted as a wit and writer, was appointed by the legislature in the place of John INTeilson, who had declined. He was independent in action as well as in speech, but he was suffi- ciently admired and respected to have been regu- larly re-elected governor of his state since the beginning of the Revolution. In person he was so tall and thin that he was frequently referred to as the "whipping post." Pierce admired him as being "about sixty years old, and remarkably healthy," but he criticized him for seeming "rather to indulge a sportiveness of wit, than a strength of thinking."

Abraham Clark, who was appointed at this time, never attended, and the delegation was completed with the selection of Captain Jona- than Dayton, who had served with distinction in the Revolution. At twenty-seven, he was one of the youngest men appointed, and occasionally revealed a hasty temper which was characteristic of him but was not in harmony with the general tone of the convention. He was a member of the state legislature, but he and Brearley were

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THE FRAMING OF THE CONSTITUTION

the only attending delegates from New Jersey who had not served in congress.

PENNSYLVANIA in appointing seven deputies, any four of whom were authorized to represent the state, specifically cited Virginia's act and vested its representatives with powers that were phrased like those of Virginia.

At the head of the delegation was General Thomas Mifflin, a former member and president of congress. At forty-three he was still ex- tremely popular in spite of the fact that he had been a member of the cabal against Washington in favor of Gates. Next came "Bob" Morris, large, florid, and pleasantly impressive. Al- though foreign-born, he had served his adopted country well as a member of congress, a signer of the Declaration of Independence, and as the financier of the Revolution. Much was expected of him in the convention because of the financial situation and the definite ideas he was known to possess upon that subject, and also because of the reputation that "when he speaks in the Assembly of Pennsylvania, he bears down all before him."

The less conspicuous members of the Pennsyl- vania delegation, although they had all been in congress, were: George Clymer, a signer of the Declaration of Independence, able but extremely diffident, and never heard to speak ill of anyone;

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THE CONVENTION AND ITS MEMBERS

Jared Ingersoll, the ablest jury lawyer in Phila- delphia; and Thomas Fitzsimons, of Irish birth, now a prominent and successful merchant in Philadelphia.

James Wilson was the strongest member of this delegation and Washington considered him to be one of the strongest men in the convention. Born and educated in Scotland, he came to America when twenty-three years old. He had served several times in congress, and had been one of the signers of the Declaration of Inde- pendence. At fortynfiw he was regarded as one o4tfa^&fole$t lawyer in< Am&em&. Tall and large featured, his nearsightedness compelling the use of glasses and adding a touch of sternness to his appearance, he had won the respect of many but the affection of few. "James the Caledonian," as he was sometimes called, was rather a tribute to his character and his oratory than a mark of popularity.

Gouverneur Morris was probably the most brilliant member of the Pennsylvania delegation and of the convention as well. Sharp-witted, clever, startling in his audacity, and with a won- derful command of language, he was admired more than he was trusted, for he was inconsistent and he was suspected of being lax in morals as well as lacking in principles. A crippled arm and a wooden leg might detract from his per-

THE FRAMING OF THE CONSTITUTION

sonal appearance, but they could not suppress his spirit. This story is told in various forms and doubtless has a foundation of truth, and the ver- sion which attaches the incident to the federal convention is as good as another: Morris was one day boasting in the presence of several delegates that he was afraid of no one, when Hamilton offered to bet him a dinner and wine for the com- pany that he would not dare to treat General Washington familiarly by slapping him on the shoulder. Hamilton lost the bet, but Morris in recounting his experience said that he had never won a bet which cost him so dearly, and Wash- ington had only "looked at" him.

Shortly before the convention met, by a special act of the legislature, the aged Benjamin Franklin, president of the state, was added to the Pennsylvania delegation. "The American Socrates" was second only to Washington in reputation and popularity, but at eighty-one his powers were failing. Pierce notes with apparent surprise that "he does not shine much in public Council, — he is no Speaker, nor does he seem to let politics engage his attention. He is, however, a most extraordinary Man, and tells a story in a style more engaging than anything I ever heard."

NOETH CAROLINA appointed five deputies, any three of whom were to represent the state, and

THE CONVENTION AND ITS MEMBERS

who were authorized "to discuss and decide upon the most effectual means to remove the defects of our Foederal Union, and to procure the en- larged Purposes which it was intended to effect." This delegation was not the equal of those that had been previously appointed from the other states. Governor Richard Caswell and Willie Jones declined commissions. When substitutes had been appointed, the head of the delegation was Ex-Governor Alexander Martin. He had been dismissed from the army for cowardice in the battle of Germantown, but he had shown liimself to be a good politician in that he had succeeded, in spite of his disgrace, in being governor of his state from 1782 to 1785.

Next came William R. Davie, Not yet thirty years old and one of the youngest members in the convention, with a winning personality, he was popular but not prominent. About the middle of June various Philadelphia papers gave "an exact list of the members of the convention." First came those who had risen to the title of "His Excellency," the "Honorable Governor," etc. Then were given those who were or had been "honorable Delegates to Congress." Lastly came those who were classified as "the following respectable Characters." Davie was essentially in this class.

Richard D. Spaight was also under thirty,

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THE FRAMING OF THE CONSTITUTION

and if he had not been a delegate to congress, would doubtless have been classed among the "respectable characters." Pierce described him as "a worthy man, of some abilities, and fortune/' Doctor Hugh Williamson had been a preacher and then a professor of mathematics in the col- lege of Philadelphia before taking up the study of medicine. He was eccentric but good- humored, and without being a good speaker he was very fond of debating. One of his contem- poraries reported that it was hard to know his character well, it was even possible that he hadn't any. Perhaps Pierce characterized him aptly when he said that "in his manners there is a strong trait of the Gentleman." William Blount, twice a delegate to congress, faithful, but without "any of those talents that make men shine . . , plain, honest and sincere," completed this mediocre delegation.

The DELAWARE commission was copied after those of Pennsylvania and Virginia, but with the important proviso "that such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Con- federation . . . which declares that 'In determin- ing Questions in the United States in Congress Assembled each State shall have one Vote/ " Five deputies were appointed, any three of whom were to represent the state.

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THE CONVENTION AND ITS MEMBERS

At the head of the delegation was George Read, then in his fifty-fourth year. Short, slight, and with an appearance of physical weakness, he made but a poor impression as a speaker, although he had great ability as a lawyer. He commanded the implicit confidence of his state, which among other capacities he had repre- sented in congress, and as a signer of the Decla- ration of Independence, and in the Annapolis convention.

Gunning Bedford had a great reputation as an advocate, but though an eloquent, he was also a nervous speaker and apt to be hasty and impetu- ous. His epitaph reads that "his form was goodly," which is a euphemistic way of describing what Pierce called being "very corpulant," and to Pierce he did not look his forty years. He, too, had represented his state in congress.

The most noted of the Delaware deputation was John Dickinson, author of the "Farmer's Letters," and chairman of the committee of con- gress that framed the articles of confederation, He was able, scholarly, and sincere, but nervous, sensitive, and cautious to the verge of timidity. His refusal to sign the Declaration of Indepen- dence had cost him his popularity. Though he was afterwards returned to congress and became president successively of Delaware and Pennsyl- vania, he never succeeded in completely regain-

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THE FRAMING OF THE CONSTITUTION

ing the public confidence. A shadow of mistrust was always visible. He appeared older than his fifty-five years would warrant.

Richard Bassett and Jacob Broom completed the delegation. They were about the same age of thirty-five, and came under the classification of "respectable characters." Pierce regarded the former with curiosity or misgiving as "a religious enthusiast, lately turned Methodist/* but he commended him, and Broom as well, for having sense enough not to talk in the convention.

GEORGIA also modeled its commission on that of Virginia and appointed six commissioners, any two of whom were to represent the state. Ex-Governor George Walton and Nathaniel Pendleton either declined or failed to attend and the delegation was thus reduced to four.

William Few was a self-made man who had been admitted to the bar, and his colleague Pierce thought that "from application" he had "acquired some knowledge of legal matters." He had done more than that, however, and though socially he was at a disadvantage he was evidently well thought of in his state, for he was a member of the state legislature and twice had been a delegate to congress.

Abraham Baldwin, thirty-three years old, was the ablest member of the delegation, Born in

THE CONVENTION AND ITS MEMBERS

Connecticut, educated at Yale and a tutor there for several years, he had served during the Revo- lution as a chaplain in the army. After the war he had moved to Georgia, where he was admitted to the bar and became a member of the state legislature. He originated and put through the plan for the University of Georgia and then became its president. He had twice been a member of congress.

William Pierce, whose comments on his fellow- delegates have been so frequently quoted, was nearly fifty years old. He had served with dis- tinction during the Revolution, and was at this time a delegate to congress. Although he did not attempt to describe his own character, but left it for "those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict,9' he was evidently blessed with a sense of humor.

The last of the delegation was William Hous- toun, who was admitted by Pierce to be of good family and to have been well educated in Eng- land. His next comment, however, is scathing: "Nature seems to have done more for his cor- poreal than mental powers. His Person is strik- ing, but his mind very little improved with useful or elegant knowledge."

The six states that have been considered were acting on their own responsibility. The com-

THE FRAMING OF THE CONSTITUTION

missions they had issued all provided for a revis- ion of the articles of confederation, but congress was the only body authorized to propose amend- ments to that document, and congress had made no move. When it became evident that the con- vention had sufficient support to render its exist- ence a certainty, it seemed wise to congress to approve what could not be helped. Accordingly, on February 21, 1787, congress declared:

Whereas there is provision in the Articles of Con- federation and perpetual Union, for making alterations therein, . . . And whereas experience hath evinced, that there are defects in the present Confederation, as a mean to remedy which, several of the States . . . have suggested a convention for the purposes expressed in the following Resolution. . . .

Resolved, That in the opinion of Congress, it is expedient, that on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and con- firmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union.

[28]

THE CONVENTION AND ITS MEMBERS

in accordance with specific instructions to its delegates by that state. The one serious obstacle to the convention being thus removed, New York promptly joined the other states, and using the words of the resolution of congress, appointed three delegates.

The first of these was Robert Yates, an able judge of the state supreme court. He was nearly fifty years old, had been a member of the New York provincial congress and had served on the committee that framed the state constitu- tion of 1777. John Lansing was a young lawyer of moderate ability, but he evidently was some- thing of a politician, for he had been a member of the state house of representatives, the mayor of Albany, and a delegate to congress.

The third and ablest of this delegation was Alexander Hamilton, who was one of the small- est men physically and one of the biggest intellec- tually who attended the convention. Only thirty years old, his reputation was already established by what he had done in the Revolu- tion, in his state legislature, in the continental congress, and in the Annapolis convention. The logic of his arguments was convincing, but he was not a great speaker, except on the few occasions when his feelings overmastered his self- consciousness. He was too arrogant and over- bearing to be popular, but he was respected for

[29]

THE FRAMING OF THE CONSTITUTION

his ability and admired for his originality and his daring.

SOUTH CAROLINA followed promptly after New York and appointed four deputies, two of whom might represent the state "in devising and discussing all such Alterations, Clauses, Articles and Provisions, as may be thought necessary to render the Foederal Constitution entirely ade- quate to the actual Situation and future good Government of the confederated States."

At the head of the delegation was the Irish- American, John Rutledge, who was regarded as the great orator of his day, and as "one of the claims to fame of South Carolina." He was approaching fifty and he had been a member of congress, governor of his state, and chancellor also. A man of unquestioned ability, noted for his quick wit and for his boldness and decision, whose temper was proud and imperious, he was distinctly a person to be reckoned with. Out- wardly he was possessed of considerable means, but it was rumored that his debts exceeded his fortune.

Charles Pincfcney, at twenty-nine, was the youngest member of the delegation and one of the youngest men in the convention, and he must have appeared to be still younger, for Pierce speaks of him as only "twenty-four." Rather superficial but brilliant, with a high opinion of

[30]

THE CONVENTION AND ITS MEMBERS

his own ability and with extraordinary conversa- tional, powers, it is little wonder that he pushed himself forward, and it is not surprising that he seems occasionally to have been sharply snubbed by his elders.

Charles Cotesworth Pinckney, a cousin nearly ten years older, was a man of a very different type. He had risen to the rank of brigadier- general during the Revolution, but he had been educated at Oxford and he was now a lawyer of promise, and a great social favorite. When he spoke it was with conviction, and what he said was listened to with respect.

Pierce Butler, of noble birth and inordinately vain of it, had served in America as an officer in the British army. He was a man of fortune and having sold his commission and settled in this country he had become very popular. At forty- three, he was a member of the South Carolina legislature and had just been elected to congress.

Henry Laurens, a former president of con- gress, either declined an appointment or failed to attend.

MASSACHUSETTS cited the resolution of con- gress, and commissioned five delegates, any three of whom were authorized to represent the state "for the purposes aforesaid." Francis Dana, one of the appointees, did not accept or at least did

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not attend the convention and the delegation was reduced to four.

Elbridge Gerry was small in person, but a prominent figure in state politics. At forty- three he had twice been a delegate to congress, and was one of the signers of the Declaration of Independence and of the articles of confedera- tion. He was a successful merchant and greatly interested in questions of commerce and finance. Serenely confident of his own judgment, and unable always to distinguish between what was essential and what was of minor importance, his decisions and subsequent actions sometimes seemed unreasonable, not to say erratic.

Nathaniel Gorham, twice a delegate to con- gress and president of that body during his second term, had left the president's chair to attend the convention. He was a man of good sense rather than great ability, but he stood "high in reputation, and much in the esteem of his Country-men." Pierce further said of him in his fiftieth year that he was "rather lusty, and has an agreeable and pleasing manner."

Rufus King, somewhat over medium height, was an unusually handsome man and with great personal charm. Of marked ability, and an elo- quent speaker with a sweet, clear voice, it is no wonder that "ranked among the Luminaries of the present Age" he should be regarded as one of

[32]

THE CONVENTION AND ITS MEMBERS

the coming men of the new nation. He had been opposed to any radical reform of the confedera- tion, but convinced of his error he joined heartily in the work of the convention and, as might be supposed, his support was as heartily welcomed.

Caleb Strong, forty-two years old, tall and angular, was rather unprepossessing in appear- ance. Solid rather than brilliant, plain in speech and manner, and of sterling integrity, he was highly esteemed by his colleagues and was a good representative of the country people of Massachusetts.

CONNECTICUT also specifically referred to the action of congress and appointed three delegates, any one of whom might represent the state "for the purposes mentioned." But as if in further explanation the act goes on to say "and to discuss upon such Alterations and Provisions agreeable to the general principles of Republican Government as they shall think proper to render the federal Constitution adequate to the exigen- cies of Government and the preservation of the Union." Erastus Wolcott having declined to serve, the commission consisted of Johnson, Sher- man and Ellsworth.

William Samuel Johnson was sixty years of age and was regarded as one of the most learned men in this country; having received the degree of Doctor of Laws from Oxford, he was always

[33]

THE FRAMING OF THE CONSTITUTION

addressed and referred to as "Doctor" Johnson, A lawyer and judge who, in spite of his luke- warmness during the Revolution, was greatly respected, he had just been elected president of Columbia College, Gentle-mannered, and almost affectionate in his way of addressing acquaintances, he was loved as well as respected. Whenever he spoke, he was accorded the most careful attention.

Roger Sherman, the mayor of New Haven, was at sixty-six one of the older men in the con- vention. Tall, awkward, and almost uncouth, he was apt to be misjudged at first sight, for he was a man of ability and of great practical wisdom. Shoemaker, almanack-maker, lawyer, and judge had been the successive stages of his progress. "An able politician, and extremely artful in accomplishing any particular object; — it is re- marked that he seldom fails." Another of his contemporaries wrote: "he is as cunning as the Devil, and if you attack him, you ought to know him well; he is not easily managed, but if he sus- pects you are trying to take him in, you may as well catch an Eel by the tail." He had been a member of congress and a signer of the Declara- tion of Independence and of the articles of confederation.

Oliver Ellsworth, forty-two years old, was a judge of the state supreme court who was greatly

[«*]

THE CONVENTION AND ITS MEMBERS

"respected for his integrity, and venerated for his abilities." An eloquent speaker and an able debater, he made an excellent third in this rather remarkable trio. A few months later the French charge d'affaires in a report to his government spoke of Ellsworth and Sherman as typical of Connecticut, and went on to say: "The people of this state generally have a national character not commonly found in other parts of the country. They come nearer to republican simplicity: with- out being rich they are all in easy circumstances."

MAEYLAND, in phrases very similar to those of the original Virginia act, commissioned five deputies, but owing to the exigencies of local politics the final appointments were not made until two weeks after the date set for the opening of the convention. It was said that the first men chosen by the legislature refused the appoint- ment, because it would involve absence from the state when their presence and influence were needed to restrain a widespread movement for an issue of paper money. At any rate, Charles Carroll of Carrollton, Gabriel Duvall, Robert Hanson Harrison, Thomas Sim Lee, and Thomas Stone were elected but declined to serve, and the delegation finally appointed was regarded as inferior.

Dr. James McHenry, born in Ireland, had been a surgeon during the Revolution and had

[36]

THE FRAMING OF THE CONSTITUTION

become secretary to the commander-in-chief and Washington's friend and adviser. He had since been a member of the state senate and a delegate :o congress. A man of only moderate ability, ae had at thirty-five achieved a prominence somewhat beyond his merit.

Daniel of St. Thomas Jenifer, sixty-four years Did, was a man of means and of some prominence n his state. He had been a delegate to congress, md one of the commissioners from Maryland to neet with Virginia in the Chesapeake-Potomac controversy. "He is always in good humour, md never fails to make his company pleased with lim. He sits silent in the Senate, and seems tc )e conscious that he is no politician. From his ong continuance in single life, no doubt but he las made the vow of celibacy.5'

Daniel Carroll and John Francis Mercer were ;wo younger men, the one just over and the other mder thirty, of large means, who were rising nto political prominence in the state. Both had Deen delegates to congress.

Luther Martin was an able lawyer, forty-three fears old, who had been a delegate to congress md had been appointed attorney-general of Maryland. His career in politics was ascribed to ;he influence of undesirable interests, and it was ;aid that he was sent to the federal convention for ;he purpose of opposing the establishment of a

[36]

THE CONVENTION AND ITS MEMBERS

strong national government. He was a tiresome speaker, perhaps a trait that he carried over from his school-teaching days, and that fact together with the suspicion attaching to his motives did not insure him a cordial reception.

NEW HAMPSHIRE, according to common re- port, failed to act because of lack of funds to meet the expenses of its delegates, and the situa- tion was not relieved until John Langdon offered to pay all expenses out of his private purse. When action finally was taken late in June, it seemed necessary to defend or explain the state's position. Accordingly in the act appointing commissioners, a somewhat elaborate preamble was adopted, recognizing the necessity of enlarg- ing the powers of congress, and declaring the unselfishness of the state and its willingness to make every concession to the safety and happi- ness of the whole. Tour deputies were accord- ingly named, any two of whom were author- ized to represent the state, "to discuss and decide upon the most effectual means to remedy the defects of our federal Union."

Langdon, who was naturally the first man named, was not yet fifty years old and had made a large fortune in commerce. He was sometimes referred to as the Robert Morris of his state, He was eminently a practical man, of strong

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THE FRAMING OF THE CONSTITUTION

common sense, simple and unaffected, who had taken an active interest in the Revolution, and was "thoroughly republican in all his tendencies." He had been a member repeatedly and speaker of the state house of representatives, president of his state, and twice a delegate to congress.

Nicholas Gilman appeared to be younger than the thirty-odd years warranted. He had served during the Revolution, but the reputation he achieved seems to have been that of a self-seeker, and of one desiring to be appointed to public offices. A year before he had been elected to congress, and there on account of his youth and presumptuous airs his colleagues promptly dubbed him "Congress." Pierce said that though there was "nothing brilliant or striking" there was "something respectable and worthy in the man." But the French charge d'affaires, Otto, reported to his government that his representing New Hampshire in the convention proved that there was not much from which to make a choice in that state.

John Pickering and Benjamin West were appointed but did not attend the convention, so that New Hampshire was represented by Lang- don and Gilman only and they did not reach Philadelphia until the end of July.

Nearly seventy-five names have been men- tioned but characterizations have been attempted

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THE CONVENTION AND ITS MEMBERS

of only the fifty-five who actually attended the convention. In some respects they were a re- markable body of men. At an average age of forty-two or forty-three, although one-sixth were of foreign birth, most of them had played important parts in the drama of the Revolution, a large majority, approximately three-fourths, had served in congress, and practically all of them were persons of note in their respective states and had held important public positions, In a time before manhood suffrage had been accepted, when social distinctions were taken for granted, and when privilege was the order of the day, it was but natural that men of the ruling class should be sent to this important convention. Thomas Jefferson was in Paris and when he heard of the appointments he wrote to John Adams in London, "it really is an assembly of demi-gods." The opinion thus expressed has been commonly accepted since that time. The objection to it lies in the fact that the Virginia delegates whom Jefferson best knew were an unusual set of men, while many of the other dele- gates Jefferson knew only by reputation as men of prominence in their states. As a matter of fact, Virginia had set the fashion, which the coun- try approved, and to be a delegate to Phila- delphia became a desired honor. Appointments were accordingly sought and obtained in several

[39]

THE FRAMING OF THE CONSTITUTION

instances by men of political influence. In other cases appointments were due to less worthy motives, approaching what might be termed cor- ruption. In a few cases appointments were made for convenience' sake to fill up the state delegation. A contemporary, who was frankly in the opposition, wrote: "I do not wish to de- tract from their merits, but I will venture to affirm, that twenty assemblies of equal number might be collected, equally respectable both in point of ability, integrity, and patriotism. Some of the characters which compose it I revere; others I consider as of small consequence, and a number are suspected of being great public de- faulters, and to have been guilty of notorious peculation and fraud, with regard to public property in the hour of our distress/31

Doubtless the truth lies between the two opin- ions, tr^e, but the convention as a whole was composed of men such

a sisiila* gathering at

iFord, P. L., Pamphlets on the Constitution of the United States, p. 115.

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THE CONVENTION AND ITS MEMBERS

higher tone from the social conditions of the time, the seriousness of the crisis, and the character of the leaders.

CHAPTER III

THE DEFECTS OF THE CONFED- ERATION

The convention had been called to meet in Philadelphia and the delegates had been ap- pointed. For what purpose? The report of the Annapolis convention had recommended a thorough investigation into the defects of the confederation and the development of a plan for remedying those defects, and the resolution of congress had specified "for the sole and express purpose of revising the Articles of Confedera- tion/' After the experience of over a hundred years under a better system, it is easy for us to criticise the articles of confederation, for accord- ing to present-day standards they may be con- demned as utterly unfit, unworkable, and even as "vicious" in principle, that that

To the men of that time the articles of confederation appeared in no such light. His contemporaries might not have been willing to concur in Jefferson's extravagant statement that

THE DEFECTS OF THE CONFEDERATION

a comparison of our government with the govern- ments of Europe "is like a comparison of heaven and hell. England, like the earth, may be allowed to take the intermediate station." Yet John Jay seemed to regard it as somewhat of a concession to admit that "our federal government has imperfections, which time and more experi- ence will, I hope, effectually remedy." Even Washington, who of all men had suffered the most from the intolerable inefficiency of congress, had a good word to say for the government. Nor is it sufficient to accept the apology of John Marshall that, if the articles of confederation really preserved the idea of union until the nation adopted a more efficient system, "this service alone entitles that instrument to the respectful recollection of the American people." The fomi of government that had been established was an &%p&mmi®&> an attempt to solve the problem of a confederated republic, and while no one would have claimed that it was perfect most men would have agreed with Jefferson that

If such was the contemporary point of view, it is evident that the wording employed in the cre- dentials of the delegates and in the resolution of congress was no mere formal phraseology; the

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THE FRAMING OF THE CONSTITUTION

federal convention was really called for the "express purpose of revising the Articles of Con- federation" and rendering them "adequate to the exigencies of government, and the preservation of the Union." To appreciate the work of the federal convention, it is essential to understand the task before it, as the delegates themselves comprehended it. Accordingly it is necessary to divest ourselves of preconceived ideas and preju- dices due to modern misinterpretation, and to try to determine what the men of the time had in mind when they spoke of the defects "which experience hath evinced that there are ... in the present confederation." Fortunately the problem is not a very difficult one to solve. Interest was keen, the seriousness of the coun- try's situation was appreciated and the topic was frequently broached in correspondence between men in all sections. Some of the letters of the better known characters have been preserved to us, and from these we can ascertain fairly accurately the state of public opinion at that time. Early criticisms of the confederation were vague; they might almost be termed desultory. But as time passed and interest increased, more careful thought was given to the subject, with a resultant increase in number and definiteness of the defects noted. But the members of the fed- eral convention would only deal with those

[44]

THE DEFECTS OF THE CONFEDERATION

defects in the confederation of which they knew. The present study has therefore been limited strictly to the writings of the delegates them- selves prior to the time of meeting in Phila- delphia, and to the records of proceedings of which some of the members could not fail to have had knowledge, such as the journals of congress* It has already been shown that the wretched condition of the government finances, and the unsatisfactory state of foreign and domestic trade, were responsible for the calling of the Philadelphia convention. The two subjects were closely connected. Ir^tte m&tte£ of trade a uni- form was necessary, and that uniformity

codkl @&ty tee iofetaiBed by grsirffflg te tibe central gs©wi»aieiit f ufl power over teade m&

t foreign and domestic* This meant of course that duties would be laid and something in the way of revenue would result. It was not expected that this would be sufficient, and if the credit of the United States was to be maintained,. further and adequate powers of obtaining revenue by direct and indirect taxation must be provided. Whatever was done, some more equit- able method of distributing the burden of taxa- tion must be found than the unsatisfactory system of requisitions based upon undetermin- able land values. Many thoughtful observers also saw that restrictions upon the issuing of

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THE FRAMING OF THE CONSTITUTION

paper money were necessary, and that something more uniform than the variable state currencies was desirable. In view of subsequent events, it is interesting to notice that Madison and Jeffer- son were in favor of empowering the central government to establish a national bank.

If it was exasperating to find themselves over- reached in matters of international trade, it was humiliating to find themselves too weak to force the British to live up to the terms of the Treaty of Paris of 1783, and it was positively disgraceful to be unable to compel the individual states to observe the provisions of that or any other treaty that might be made.1 Without authority to require the states to regard the principles of

i "There is a story, at one time commonly repeated, which illus- trates the tenderness of the Virginia conscience on the subject of the repudiation of English debts during the period 1783-1789, A Scotchman, John Warden, a prominent lawyer and good classi- cal scholar, but suspected rightly of Tory leanings during the Revolution, learning of the large minority against the repeal of laws in conflict with the treaty of 1783 (i.e., especially the laws as to the collection of debts by foreigners), caustically remarked that some of the members of the House had voted against paying for the coats on their backs. The story goes that he was sum- moned before the House in full session, and was compelled to beg their pardon on his knees, but as he rose, pretending to brush the dust from his knees, he pointed to the House and said audibly, with evident double meaning, *Upon my word, a dommed dirty house it is indeed/ The Journal of the House, however, shows that the honor of the delegates was satisfied by a written assur- ance from Mr. Warden that he meant in no way to affront the dignity of the House or to insult any of its members." Grigsby, Virginia Convention of 1788, II, 86.

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THE DEFECTS OF THE CONFEDERATION

international law and incompetent even to punish piracy or felony on the high seas, it was truly a pitiable spectacle that the United States pre- sented. When a contemporary who had traded with various countries could say that he found "this country held in the same light by foreign nations as a well-behaved negro is in a gentle- man's family,"2 there need be little wonder that this newly independent and sensitive people should demand reforms that would tend to dispel some of the contempt inspired abroad. The least that could be done was to establish a strong cen- tral government which should have control of all foreign relations.

These things were self-evident and there seems to have been a general unanimity of sentiment in favor of the reforms proposed. If those reforms were carried out, the situation would have been somewhat relieved, but the heart of the trouble would not have been reached. A fundamental difficulty of the union was to be found in the inde- pendence and excessive power of the individual states. Concrete instances of this are to be noticed in the matters thus far considered, which involved not merely trespassing by the states upon one another's rights, but even directly dis- regarding the articles of confederation. Agree-

2 Elliot, Jonathan, Debates in the Several State Conventions on the adoption of the Federal Constitution, II, 34.

[47]

THE FRAMING OF THE CONSTITUTION

ments between the states were in direct contra- vention of that instrument. So also were the dealings with the Indians which several of the states indulged in to the detriment of any uni- form policy, so important in treating with uncivi- lized peoples. But the blame for this encroach- ment upon federal authority was not to be laid at the door of the states alone. The confedera- tion did not draw the line sharply between state and federal powers, and even in the field open to congressional action the government was fre- quently too weak to move. Self-preservation, rather than mere selfishness, actuated the states in some instances. But whatever justification there might be, it was greatly to be desired that a negative or some check upon state legislation should be vested in the central government.

There were some matters requiring greater uniformity of treatment and procedure than could be obtained from independent state action. Such were naturalization, bankruptcy, education, inventions, and copyright. Upon these subjects, accordingly, congress ought to be authorized to legislate. For somewhat different reasons other matters were just as clearly beyond the scope of state action and in these also the central govern- ment should be given power: To define and pun- ish treason, to establish and exercise jurisdiction over a permanent seat of government, to hold and

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THE DEFECTS OF THE CONFEDERATION

govern the western territory that had been ceded by the states, to provide for the establishment of new states and their admission into the union, to maintain an efficient postal service and, some said, to make internal improvements. If such fields of action were granted to the central gov- ernment, the states would still be free to exercise sufficient authority in local matters. But experi- ence had also shown that occasion might arise when a state would welcome a strong hand to assist it in preserving order within its boundaries. Shays's rebellion had taught a much needed les- son. It was not sufficient to place the state militia under some central control. The central govern- ment must be empowered to maintain an efficient army and navy to protect the states against inter- nal disorders, as well as against external dangers. In other words, the authority of the federal gov- ernment was to be effective in time of peace as well as in time of war. As a further safeguard for the states in maintaining their republican in- stitutions, a guarantee of their constitutions and laws was believed to be essential.

Some of the more superficial observers were inclined to ascribe the difficulties of the confed- eration to the defective organization of the gov- ernment. Montesquieu, whose writings were taken as political gospel, had shown the absolute necessity of separating the legislative, executive,

[49]

THE FRAMING OF THE CONSTITUTION

and judicial powers. There ought, therefore, to be a separate executive which should be able to take the initiative when occasion demanded, which should be capable of action in foreign rela- tions and which, either with or without a council, might have the power of appointment and the right of veto. There ought to be an organized federal judiciary which should have, in addition to that developed under the articles of confedera- tion, jurisdiction in matters relating to foreigners or people of other states. And the composition of congress should be entirely changed: there ought to be two houses and a council of revision; the method of voting by states and of requiring nine votes ought not to be continued; the number of members should be greater and the people ought to be directly represented; the sessions should be definite and not so frequently shifted from one place to another; attendance should be compulsory; the members should be prohibited from holding other offices ; and the terms of office and the compensation of members ought to be such as would attract the best men in the country. While recognizing the justice of these com- plaints and the wisdom of the reforms proposed, more thoughtful observers realized that another and perhaps the fundamental weakness of the confederation was the inability of congress to enforce its demands. Under existing conditions

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THE DEFECTS OF THE CONFEDERATION

it might be sufficient to render the federal con- stitution superior to state constitutions and to give the central government a negative or some check upon state legislation, together with the right and power of coercion. But there were a few who had studied the situation who saw that the changes desired were so far-reaching that, if they were carried out, the confederation would be transformed. They accordingly favored a central government acting directly upon the people with power to compel obedience.

The attempt to obtain amendments to the arti- cles of confederation had taught by bitter experi- ence that the objection of a single state was sufficient to block the will of all the others. It was evidently necessary, then, that provision should be made for amendments to the new con- stitution with the consent of less than the whole number of states. It was also felt that this same principle ought to be applied in the modifications proposed in the existing instrument, and those who were in favor of a government acting directly upon the people advocated as a first step in this process that the changes to be made in the constitution should be ratified by the people rather than by the state legislatures.

The points that have been noted represent roughly what the members of the convention seem to have had in mind at the time of their

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THE FRAMING OF THE CONSTITUTION

meeting in Philadelphia when they spoke of the defects of the confederation. It would seem probable that when such men as Madison and Hamilton attempted to point out the defects of the confederation, they would naturally include everything requisite to good government that was lacking in the articles of confederation. But the defects that have been mentioned are much more comprehensive than those which were noted by any one person. Even Madison's summary — prepared shortly before the convention met, with a long experience in the congress of the confederation and after a careful study of all the confederations known to history — is only approximately complete.

tibe convention tfeus sen® of perfectly

each of which had revealed itself in the experience of little more than ten years. It was a time when men indulged in ^pt^^^fei-

and in olifekal theorizin, but

While several of the delegates in preparation for their task read quite extensively in history and government, when it came to the concrete prob- lems before them they seldom, if ever, went outside of their own experience and observation.

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THE DEFECTS OF THE CONFEDERATION

NOTE

PELATIAH WEBSTEB

Pelatiah Webster was a successful Philadelphia mer- chant and interested in financial questions, upon which he had written. In 1788, he brought out a small pam- phlet entitled "A Dissertation on the Political Union and Constitution of the Thirteen United States of America, which is necessary to their Preservation and Happiness; humbly offered to the Public." Upon the basis of this, extravagant claims have been made for Webster as the "architect of the constitution.55 Some of his ideas were taken directly from the articles of con- federation and from the amendments that had been proposed thereto. Some of his ideas were purely fanciful, and were of no value whatever. Some of the tilings wliich he foresightedly pointed out were later embodied in the constitution, but there is not the slightest evidence that his pamphlet or ideas — directly or indirectly — actually affected the work of the convention. In other words, it would seem that the constitution would have taken ifcs present form if the pamphlet in question had never been written.

[53]

CHAPTER IV

THE ORGANIZATION OF THE CON- VENTION

The convention had been called to meet in Philadelphia on the second Monday in May. In 1787 this fell upon the fourteenth day of the month. Upon that day, however, only a com- paratively few delegates had arrived, and as this was a meeting of state deputations, it was essential that a majority of the states should be represented. Partly owing to the difficulties and slowness of travel, but partly owing to the dila- tory habits developed in congress, where experi- ence had shown that it was a waste of time to be prompt in attendance, it was not until Friday, the twenty-fifth of May, that seven states were represented and the convention could proceed to organize.

The meetings were held in the State House, and it is commonly supposed that Independence Hall was the room that was used. But Manas- seh Cutler visited Philadelphia in the summer of 1787 and in his journal of July 13 he gives a brief description of the State House, in which he records that "the hall east of the aisle is em- ployed for public business. The chamber over it

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is now occupied by the Continental Convention, which is now sitting." John F. Watson, in his Annals of Philadelphia^ confirms this statement and gives the additional information that the street pavement was covered with earth that the labors of this august assembly might not be disturbed by passing traffic.1

The first duty was to choose a presiding officer. As president of the state in whose capitol the con- vention was meeting, as well as by virtue of his age and reputation, Franklin might have con- sidered himself entitled to that honor. But when the session opened on the morning of the twenty- fifth with a majority of the states in attendance, Robert Morris on behalf of the Pennsylvania delegation formally proposed George Washing- ton for president. Franklin himself was to have made the nomination, but as the weather was stormy he had not dared to venture out. No other names were offered, and the convention proceeded at once, but formally, to ballot upon the nomination. Washington was declared to be unanimously elected, and was formally conducted to the chair by Robert Morris and John Rut- ledge. With equal formality, but "in a very emphatic manner," Washington thanked the con- vention for the honor they had conferred upon him and in apparently stilted terms "lamented

i Edition of 1857, voL I, p. 4Q&

THE FRAMING OF THE CONSTITUTION

his want of better qualifications" for the position. He then proposed that a secretary should be appointed.

The emoluments of the secretaryship were hardly worthy of consideration and it must have been the hope that it might lead to some future political preferment that induced several candi- dates to apply for the position. One of these was Major William Jackson, who had seen active service in the Revolution, had been secretary to John Laurens on his mission to France in 1781, and afterwards had been appointed assistant sec- retary of war. Jackson very shrewdly did some electioneering in advance by writing himself to some of the more important delegates and by getting his friends to write for him. The advan- tage of this was seen when the appointment was made. Jackson received the vote of five states, while the only other formal nominee, Franklin's nephew, Temple Franklin, obtained but two.

The next stage in the procedure was to read the credentials of the deputies, and it was noticed with some concern that those from Delaware were prohibited from changing the principle of the confederation of each state having an equal vote. George Mason commented on this in a letter to his son, and added that "no other State . . . hath restrained its deputies on any subject/* A committee of three was then elected by ballot

ORGANIZATION OF THE CONVENTION

to prepare standing orders and rules, and after appointing a messenger and a doorkeeper the convention adjourned until Monday.

On Monday two more states were represented and the day was spent in considering the report of the committee on rules. Aside from the ordi- nary methods of parliamentary procedure, two things were agreed upon that are essential in understanding the working of the convention. In the first place, the whole organization of the convention was on the basis of state representa- tion: each state having one vote, seven states making a quorum, and a majority of states pres- ent being competent to decide all questions, though the deputies of a state by simply request- ing it might postpone the vote upon any question until the following day. This matter of state representation had been the subject of informal discussion during the days that elapsed while the delegates present were waiting for a quorum. The Pennsylvania delegates and Gouverneur Morris in particular urged "that the large States should unite in firmly refusing to the small States an equal vote, as unreasonable, and as enabling the small States to negative every good system of Government." The Virginia delegates, however, succeeded in stifling the project for fear that it "might beget fatal altercations between the large and small States."

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In the second place, it was considered impor- tant that the delegates should be protected from criticism, and that their discussions should he free from the pressure of public opinion. Ac- cordingly it was decided not to permit calling for the yeas and nays, and it was further ordered that "no copy be taken of any entry on the journal . . . without leave of the House," that "members only be permitted to inspect the journal/' and that "nothing spoken in the House be printed, or otherwise published or communi- cated without leave." In other words, the ses- sions were to be strictly secret. We have a con- temporary account revealing the excessive care taken to protect the convention from intrusion, which states that "sentries are planted without and within — to prevent any person from ap- proaching near — who appear to be very alert in the performance of their duty."

Two days and a part of the third day were given up to the work of organization, and when the main business of the convention was begun on May 29, there were ten states represented with some forty delegates in attendance. With the exception of one adjournment of two days over the Fourth of July and another of ten days, from July 26 to August 6, to allow an important committee to prepare its report, the convention remained in continuous session (except for Sun-

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days) until September 17. There was one week in the latter part of August when the time of adjournment was set at four o'clock, but other- wise the hours of the daily sessions seem to have been from ten in the morning to three in the afternoon.

So scrupulously was the order of secrecy observed that it was not until many years after- ward that anything definite was known of what took place in the convention. In the period fol- lowing the War of 1812, when important ques- tions involving constitutional interpretation were before the public, congress ordered to be printed all of the acts and proceedings of the convention that were in the possession of the government. The result was disappointing. The minutes of the secretary had not been well kept, and were never written out as they should have been into a complete journal. At best, they consisted only of formal motions and of the votes by states. But the seal of secrecy was broken and at various times from that day to this there have come to light the notes and records kept by differenl members. Most of these are fragmentary. There was one man, however, who recognized the importance of this gathering, and appreciated the interest that in all probability would attach to its proceedings, and who determined to leave as complete a record as was possible of all that

THE FRAMING OF THE CONSTITUTION

took place. That man was Madison, and he set about his self-imposed task in his usual methodi- cal way, that is best described in his own words : "I chose a seat in front of the presiding member, with the other members on my right and left hand. In this favorable position for hearing all that passed, I noted in terms legible and in abbre- viations and marks intelligible to myself, what was read from the Chair or spoken by the mem- bers; and losing not a moment unnecessarily between the adjournment and reassembling of the Convention, I was enabled to write out my daily notes during the session, or within a few finishing days after its close." Madison later told Governor Edward Coles that the labor of writing out the debates, added to the confinement to which his attendance in convention subjected him, almost killed him, but that having under- taken the task, he was determined to accomplish it. He took his work so seriously that it seemed to have stifled any sense of humor he is said to have possessed and deprived his notes of any enlivening qualities. But every student of the subject is under the deepest obligation to him. From his Debates, as supplemented by the other very irregular notes, one is able to obtain a fairly accurate and complete account of the proceedings*

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When taking up the all-important work of the convention in framing the constitution of the United States, it is well to keep certain facts and conditions continually in mind. In the first place, while there were fifty-five delegates who attended the convention at one time or another, that is not the number of those who were usually present. Some delegates were late in arriving in Philadelphia, some left early, and many were irregular in their attendance. From a careful study of all available data, supported by a single contemporary statement, it would seem that the average attendance was little if any more than thirty. Accordingly, as we use the terms at the present time, this body was more like a large committee than a convention*

In the next place, the importance of the occa- sion was recognized by the delegates as well as by the public generally. When they and their work were the subject of prayer and preaching in the churches, when they became the second toast at banquets, following directly after "The United States!'*, it is not surprising that the members of the convention took their work seriously, and that some of the delegates took themselves seriously, too, Madison asserted in the conven- tion, and Hamilton repeated after him, that they "were now to decide for ever the fate of Repub- lican Government." A few days later, Gouver-

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neur Morris said that "the whole human race will be affected by the proceedings of this Conven- tion." And after the convention was over Wil- son said: "After the lapse of six thousand years since the creation of the world, America now presents the first instance of a people assembled to weigh deliberately and calmly, and to decide leisurely and peaceably, upon the form of gov- ernment by which they will bind themselves and their posterity."2 Of course those who were the most sincere in their desire and efforts for reform would be the most constant in their attendance. The convention accordingly was not merely a small gathering, it was also imbued with an unusually serious spirit.

In the third place, there is ample evidence to show that there was not a little social intercourse among the delegates, and it is inevitable that at such times there should have been considerable discussion of convention topics. At other times there were semi-formal gatherings, that might almost be termed caucuses, of particular parties or groups, where plans were formulated and agreements reached to support or oppose particu- lar measures. It also happened that quite a number of the delegates were staying at the Indian Queen, a tavern on Fourth Street,

zMcMaster and Stone, Pemuyfaania and the Federal Constitu* fan, p, 332.

ORGANIZATION OF THE CONVENTION

between Market and Chestnut, among whom were Gorham, Strong, Hamilton, Madison, Mason, Rutledge, and Charles Pinckney ; and the mere fact that they had a "Hall" where they lived by themselves is significant. To what extent outside meetings and discussions were held, or what part they took in the final results, will prob- ably never be known. Their existence, however, should be recognized. Particularly in the matter of concessions and compromises extra-conven- tional conferences were doubtless of distinct service. Personal influence must have been an important factor in the work of the conven- tion; and then, as now, it could be exerted more effectively outside than inside the formal sessions. Finally, there is the paramount but evasive element to which reference has just been made, namely that of personal influence. Its greatest effect must have been felt outside of the formal sessions, but the extent of this can never be known. It must have been also a considerable element in the formal sessions of the convention, and even here it is a difficult factor with which to reckon. In describing the personality of the various members of the different state delega- tions an attempt was made to render somewhat at least of the contemporary viewpoint, that is to bring out the probable attitude of the dele- gates toward any particular member* From the

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fact that the votes were recorded by states it is generally lost sight of that the votes of indi- viduals were apparently known, at least in many instances, Madison records the votes of particu- lar individuals a number of different times, apparently to show the men in support or in opposition to questions of importance or in which he was particularly interested.

It is a difficult, if not a dangerous thing, to attempt to ascribe controlling importance or influence to any particular men where the evi- dence is so scanty. The parts which were taken by various men in the debates of the convention will be partially brought out in describing the proceedings, but it seems worth while to notice one man who took no part in the discussions but whose influence is believed to have been impor- tant. That man was George Washington, the presiding officer of the convention. His com- manding presence and the respect amounting almost to awe which he inspired must have carried weight, especially in so small a gathering in the "long room" with the president sitting on a raised platform. In confirmation of this belief an amusing anecdote is told of an incident quite early in the proceedings. One of the members dropped a copy of the propositions which were before the convention for consideration, and it was picked up by another of the delegates and

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handed to General Washington. After the debates of the day were over, just before putting the question of adjournment, Washington arose from his seat and reprimanded the member for his carelessness. " *I must entreat Gentlemen to be more careful, least our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose Paper it is, but there it is (throwing it down on the table) , let him who owns it take it.' At the same time he bowed, picked up his Hat, and quitted the room with a dignity so severe that every Person seemed alarmed. . . . It is some- thing remarkable that no Person ever owned the Paper." Another anecdote is told, but not on so good authority, which indicates ;fchat Washing- ton did not act with the impartiality which we ascribe to the ordinary presiding officer: that he allowed his sympathies to be shown; and that he actually beamed his approval and frowned his disapproval of sentiments that were offered. Whether or not this were the case, Washington's was evidently a name to conjure with and if Washington's opinions were known they must have carried weight.

And Washington's opinions were known. In the interval that elapsed while the delegates were gathering and the convention was organizing, there had been much informal discussion of the

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work to be done, of wliich this incident was related by Gouverneur Morris. It happened one morning in the convention hall, before a quorum had arrived, that some of those present advocated half measures as more likely to meet the approval of the people than any thoroughgoing reform. Washington interrupted the discussion with an expression of opinion that established his position beyond all question: "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 afterwards 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." Furthermore, in the convention itself, where tradition ascribes to Washington the role of the non-participating presiding officer, we know many of Washington's opinions. Luther Martin mentions the fact that Washing- ton evidently approved of what was being done on certain occasions, and there are several refer- ences to him in the debates. But what is more important is that, in spite of his being in the chair, he voted with the delegates from Virginia, and Madison several times records Washington's individual vote to show that he was on Madison's side of the question. All of which indicate that it was apparently well known how Washington

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stood on almost every important matter before the convention.

Intangible as it may be, impossible as it is to estimate either its extent or its strength, the mere existence of the personal element should be recognized and kept in mind. Complications arose and solutions were found that are explic- able only on the assumption of the influence of this indefinite factor.

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CHAPTER V THE VIRGINIA PLAN

Virginia had taken the lead in bringing about the convention and it was generally felt to be incumbent upon the deputation from that state to suggest a plan of action. Her delegates accordingly took advantage of the delay in form- ing a quorum to meet together for two or three hours every day, and they agreed upon a series of resolutions to be presented for the considera- tion of their fellow delegates. It was on May 29, as soon as the work of organization was com- pleted, that Governor Randolph, on behalf of the Virginia delegation, presented this outline to the convention. Internal evidence shows much of Madison's handiwork in forming these resolu- tions, but from the fact that they were presented by Randolph they were commonly referred to as the m^^^i^^^^ihey are more prop- erly designated as

In thus opening the main business, Randolph made an elaborate speech in which he enumerated

[68]

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several of the most glaring deficiencies in the existing government. He declared the confed- eration unequal to meeting the crisis and pro- posed as the basis of a remedy the fifteen resolu- tions which made up the Virginia plan. While the very first resolution stated that the articles of confederation ought to be "corrected and en- larged," the changes proposed were so radical that it was really a new instrument of govern- ment which was thus recommended. It was even said that Randolph "candidly confessed that they were not intended for a federal1 government — he meant a strong consolidated union."

In the first place, provision was made for the separation of the three branches of government — legislative, executive, and judicial. In the second place the legislature was to consist of two houses, of which the first branch was to be elected by the people of the several states, the second branch was to be chosen by the first out of persons nomi- nated by the state legislatures, and the voting in both branches was to be proportional either to the quotas of contribution or to the number of free inhabitants, or to both. This legislature was to have the legislative powers of the congress of the

i During the early part of the convention the term "federal" was used to refer to a confederation as distinguished from a national government. It was not until later that it received its present significance,

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confederation, with additional powers to cover all cases where the separate states would be incompetent, together with the right to negative state laws infringing upon the "Articles of Union" and to use force against any state failing to fulfil its duty.

In the next place, the executive was to he chosen hy the national legislature, and was to be ineligible for a second term. The executive and "a convenient number of the national judiciary" were to constitute a council of revision with a veto upon legislative acts that might, however, be overruled by a subsequent vote of both houses. Then there was to be a national judiciary, of a supreme and inferior courts, chosen by the legis- lature "to hold their offices during good be- haviour," with jurisdiction in maritime questions, in cases where foreigners were interested, or which respected "the collection of the national revenue, impeachments of any national officers, and questions which may involve the national peace and harmony."

Provision was also to be made for the admis- sion of new states by less than a unanimous vote, for the guarantee to each state of a republican government and of its territory, for the amend- ment of the articles of union without the consent of the national legislature, and for the binding of state officers by oath to support the articles of

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union. Finally it was proposed that whatever amendments might be prepared embodying these changes should be submitted, after their approval by congress, to conventions specially chosen for the purpose by the people of each state.

As some time at the opening of the session had been consumed in completing the details of organization, and as Randolph had made a "long and elaborate speech," by the time he had finished the hour of adjournment was approaching. The convention therefore decided that it would take the Virginia plan into consideration on the next day, and for that purpose it determined to resolve itself into a committee of the whole house, as that would permit of freer discussion and less formal action.

Another plan was then presented to the con- vention by Charles Pinckney of South Carolina. It seems that he had prepared this plan before coming to Philadelphia, and he evidently ex- pected to deliver a speech in explanation of his ideas. Owing to the lateness of the hour, how- ever, he could do nothing more than lay the document before the house. The effort of an individual would carry little weight in compari- son with the proposals of an important delegation like Virginia's, and it is quite possible that the convention regarded this action by one of its youngest members as somewhat presumptuous.

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At any rate, in what appears to have been a purely formal way, Pinckney's plan was referred to the committee of the whole and did not form a subject of discussion at any time.

On May 30, in accordance with the vote of the previous day, the convention resolved itself into a committee of the whole and Nathaniel Gorham of Massachusetts was placed in the chair. Daily thereafter until the thirteenth of June, the same procedure was followed. That is, for two weeks, except for purely formal business the convention continued in committee, and the only subject of discussion was the Virginia plan as embodied in the resolutions presented by Randolph.

The first of the resolutions was general or introductory in its nature and provided "that the Articles of Confederation ought to be so corrected and enlarged, as to accomplish the objects pro- posed by their institution." The objection being made that this was incompatible with the changes involved in the subsequent resolutions, Randolph proposed to substitute three resolutions, of which the first was "that a Union of the States merely federal will not accomplish the objects proposed by the Articles of Confederation," Again ob j ec- tion was made that since the convention was appointed to revise the confederation, to declare it incapable of amendment was to put an end to the .meeting at once, Accordingly the third sub-

THE VIRGINIA PLAN

stitute resolution was taken up, "that a national government ought to be established consisting of a supreme Legislative, Executive and Judi- ciary/' Although the discussion which followed turned "less on its general merits than on the force and extent of the particular terms national & supreme" the questions raised were of the first importance, especially as to the powers of the convention to consider anything beyond amend- ments to the articles of confederation. The sub- stitute resolution was finally adopted by a vote which was fairly indicative of subsequent lines of division: Massachusetts, Pennsylvania, Dela- ware,, Virginia, North Carolina, and South Caro- lina were in the affirmative, Connecticut was in the negative, and New York's vote was divided, Hamilton being in favor and Yates opposed.

With the arrival of additional delegates from day to day the opponents to the Virginia plan were increased. Lansing of New York sided with Yates against Hamilton and cast the vote of that state accordingly. New Jersey and Maryland being represented were entitled to vote and were found in the opposition. Dela- ware also went over to the other side, which was partly accounted for by the instructions to its delegates, and partly by the fact that the com* bination had become strong enough to make opposition worth while. Of the new arrivals, the

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position of Georgia alone was uncertain and its delegates might be won over to either side.

It having been agreed to proceed upon lines of somewhat radical reform, the questions with regard to the nature and extent of the reorgani- zation became important. As involving funda- mental principles, the subject of the composition of the legislature quite naturally provoked the most discussion. That the legislature should consist of two houses was readily and unani- mously accepted. Mason voiced the general opinion very well when he said a few days later that "the mind of the people of America . . . was unsettled as to some points : but ... In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature," There is a tradition that Thomas Jefferson some two years later, upon his return from France, was protesting to Washington against the establishment of two houses in the legislature. The incident occurred at the break- fast-table, and Washington asked: "Why did you pour that coffee into your saucer?" "To cool it," replied Jefferson. "Even so," said Wash- ington, "we pour legislation into the senatorial saucer to cool it."

On the all-important question of proportional representation* the problem of the powers of

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the delegates, notably of Delaware, was again raised. But the convention proceeded with a fine disregard for that, and the real fight was made on the principle of proportional representation in the lower house. The leaders of the opposition in debate were Brearley and Paterson of New Jersey, and when it came to a vote on this ques- tion, the New Jersey delegation could only obtain the support of New York and Delaware, with Maryland divided. Seven states voted against them. That the representation should be pro- portional to population and that five slaves should be counted as three freemen was adopted with only New Jersey and Delaware in the nega- tive. To apply the principle of proportional representation to the upper house as well called forth a stronger opposition. Maryland's vote was no longer divided, and Connecticut too was found in the negative. Still this was not enough to defeat the proposal, and the resolution was adopted by six states against five. The opposi- tion had lost, but the minority was large enough and strong enough to encourage further efforts, and measures were concerted to forward their yiews.

The method of choosing the members of the legislature also caused considerable discussion. Sherman, Gerry, and the two Pinckneys were conspicuous in their support of election by the

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state legislatures, while Wilson, Madison, and Mason championed election by the people. Through a vote to reconsider, the question of the election of the lower house was twice the subject of debate, and twice the committee voted by large majorities in favor of an election by the people of the several states. For the election of the members of the upper house, the method pro- posed in the Virginia plan was unsatisfactory, that is, of an election by the lower house out of nominations made by the state legislatures. Where the idea originated of allowing the state legislatures directly to make the choice, it would be difficult to say. In one form or another it was suggested by several speakers at different times in the debate. And when for the second time it was decided that the lower house should be elected by the people, the sentiment in favor of electing the other house by the state legislatures was so strong that in spite of the opposition of Wilson and Madison it was passed unanimously.

The other questions regarding the composition of the legislature were of minor importance. The term of office for the lower house was fixed at three years and that for the upper house at seven. There was no specification for the lower house, but members of the upper house were to be at least thirty years of age. Members of both houses were to be paid out of the national treas-

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ury and were declared ineligible to state or national offices during their term of service and for one year thereafter.

When it came to the question of the powers to be vested in the legislature, there was a general willingness to grant extensive powers, provided they were carefully defined. The legislative rights of the congress of the confederation were accorded unanimously. In spite of the vague- ness of the phrasing, the power to legislate in all cases to which the separate states were incompe- tent was granted by an overwhelming majority. The right to negative state laws contravening the articles of union was agreed to and laws in con- travention of treaties were included, but the more general power to negative any state law was voted down. As doubts were expressed regard- ing the use of force against a state, the matter was postponed and apparently was never brought up again.

Another subject to provoke discussion was- that of the executive. There were several of the delegates, conspicuous among whom was Ran- dolph, who distrusted a single executive as savor- ing of monarchy, and who favored an executive body of three or more. But the convention decided in favor of a single person. Then the question of the method of election and of the term of office became important. At the very outset

THE FRAMING OF THE CONSTITUTION

the difficulty arose that later developed into an almost hopeless complication. If the executive were to be chosen by the legislature, he must not be eligible for re-election lest he should court the favor of the legislature in order to secure for himself another term. Accordingly the single term of office should be long. But the possibility of re-election was regarded as the best incentive to faithful performance of duty, and if a short term and re-eligibility were accepted, the choice by the legislature was inadvisable. The only solution was an election by some other body than the legislature. Election by the people seems the most natural method to which to turn, but such a method was apparently regarded as visionary and impracticable. Wilson was the only one to speak strongly in favor of it, and he apologized for it as seeming to be a theoretical rather than a practical measure. The substitute he proposed was a system of electors chosen by popular vote in districts, but this was overwhelmingly defeated. In lieu of anything better the original proposal of the Virginia plan was adopted, that the execu- tive should be chosen by the legislature. The term was then fixed at seven years and he was .made ineligible to re-election.

Whatever may have been the intention of its sponsors, the result of the method proposed in ihe Virginia plan would have been to establish

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THE VIRGINIA PLAN

an executive who would have been the creature or the dependent of the legislature. But the con- vention had a decided preference for an inde- pendent executive and carried that idea out as far as it was possible at this stage of the proceed- ings. For instance, in addition to the usual executive powers and duties he was given the power of appointment in all cases not otherwise provided for, and in place of a council of revision the executive alone was given the right of veto, subject, however, to being overruled by a two- thirds vote of both houses. And what is perhaps the clearest indication of intention to make the office an important one is that the executive was rendered subject to impeachment.

That there should be a national judiciary was readily accepted by all. Nor was there any con- troversy over the jurisdiction of such courts as might be established; indeed, the clauses in the original resolution indicating the subjects of ju- risdiction were unanimously struck out "in order to leave full room for their organization." There was also only a slight discussion over the appoint- ment of the judges, which was finally settled by vesting the appointment in the upper house of the legislature. The most serious question was that of the inferior courts. The difficulty lay in the fact that they were regarded as an en- croachment upon the rights of the individual

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states. It was claimed that the state courts were perfectly competent for the work required, and that it would be quite sufficient to grant an appeal from them to the national supreme court The decision that was reached was characteristic of much of the later work; at this early stage of the proceedings, it might be regarded as pro- phetic of the ultimate outcome of the convention's labors. In other words, the matter was compro- mised: inferior courts were not required, but the national legislature was permitted to establish them.

The remaining provisions of the Virginia plan did not call forth much debate. The admission of new states by less than a unanimous vote was accepted. Instead of insuring to each state its territory and a republican government, "a repub- lican constitution, and its existing laws" were guaranteed. The provision for future amend- ments was adopted, except that the clause ren- dering unnecessary the assent of the national legislature was dropped. There was a little dis- cussion as to the propriety or desirability of referring the changes to be proposed by the con- vention to popularly chosen conventions in each state. Madison and Wilson favored it on funda- mental grounds, King as a matter of expediency. Sherman and Gerry opposed it, the former con- sidering the state legislatures competent, the

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latter distrusting the people. Wilson and Pinck- ney suggested also ratification by less than the whole number of states. The question of popular ratification was once postponed, but the final vote was in favor of it and it was so ordered.

The proceedings of the committee of the whole had stretched over two weeks. In the course of the debates there had been shown a remarkable freedom of opinion. It was not to be expected that there would be any sharp alignment of parties at so early a stage of the work. Madison and Wilson came forward prominently as the leaders in advocating a strong national govern- ment. They were heartily supported by King and Gouverneur Morris, and in general also by Randolph, the Pinckneys, Mason, and Gerry. It is a point not to be overlooked that Washington and Franklin unmistakably cast their influence on this side.2 On the other side, were Sherman, Paterson, Brearley, and Luther Martin, and they were helped out by Bedford, Dickinson, Butler, Ellsworth, Lansing, and Yates. As the

2 Luther Martin, in his report to the Maryland legislature, stated: "The honorable Mr. Washington was then on lie floor, in the same situation with the other members of the convention at large, to oppose any system he thought injurious, or to propose any alterations or amendments he thought beneficial To these propositions, so reported by the committee, no opposition was given by that illustrious personage, or by the President of the State of Pennsylvania. They both appeared cordially to approve them, and to give them their hearty concurrence."

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discussion proceeded, it became more and more evident that Connecticut, New York, New Jersey, Delaware, and Maryland were tending to rote together, in opposition to the other states led by Virginia, Pennsylvania, and Massachu- setts,

It is apparent that this is nearly the same divi- sion which had manifested itself in the old con- gress, notably in connection with the adoption of the articles of confederation and the negotiations over the treaty of peace. It was a division between the states laying claim to western lands and the states having no such claims. It was a case of the small states against the large states, the former quite naturally fearing that they would lose their influence even if they were not actually absorbed by the latter. It has already been noticed that the question of proportional representation had stirred the small states most deeply, and that when they were outvoted, they were only aroused to further efforts. For the moment, however, it appeared as if the large states or national government party had won the day. On June 13, the committee of the whole reported back to the convention with approval the resolutions offered by Randolph as amended in the points that have been noted.

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THE PlNCZNEY PiLAN

In view of the misconceptions that are still current concerning the plan submitted to the convention by Charles Pinckney, it seems advisable to offer a brief explanation by way of warning. The document sent by Pinckney to John Quincy Adams, when the latter was preparing the journal of the federal convention for publication, and commonly printed as the Pinckney plan, was not a copy of the plan Pinckney submitted to the convention. No authentic copy of the original plan has ever been found. By critical methods it has been possible to determine the probable content of the origi- nal, and thus to identify two documents that have recently come to light. The one is an outline and the other a series of extracts from the Pinckney plan, which were evidently made by James Wilson in prepara- tion for some special committee work. From these two documents it is possible to speak intelligently of what the Pinckney plan contained. These documents with further explanations may be found in the author's Records of the Federal Convention*

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CHAPTER VI THE NEW JERSEY PLAN

The representatives of the smaller states, par- ticularly those of New Jersey, had been increas- ingly dissatisfied with the way things were going. The climax was reached when proportional repre- sentation was voted for the upper house as well as for the lower. This action was taken on June 11, and it would seem as if it served to unite the opposition. At any rate, when the convention assembled on June 14, and was about to proceed to the consideration of the report of the commit- tee of the whole, that is of the amended Virginia plan, Paterson requested an immediate adjourn- ment to the next day. The reason given for this request was that several of the deputations were preparing a "purely federal" plan as distin- guished from the one before the house and they thought that they could have it ready by the morrow. The request was at once granted.

On June 15, Paterson laid before the conven- tion the plan which he and his supporters "wished to be substituted in place of that proposed by Mr. Randolph." The plan was frequently referred to as the Paterson Resolutions, but Paterson was

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only the spokesman of his own state delegation^ which took the lead in this movement, so that the resolutions are more properly designated as the New Jersey Plan. But it should also be remem- bered that the representatives of Connecticut, New York, and Delaware, and at least Martin of Maryland, made common cause with the New Jersey delegates.

The plan thus presented was, as already inti- mated, in sharp contrast to the Virginia plan. It consisted of nine resolutions embodying important changes, but they were only amend- ments to the articles of confederation. In the first place, additional powers were to be vested in congress for raising a revenue by import duties, stamp taxes, and postal charges, and for regu- lating trade and commerce. In case the revenue thus obtained was insufficient, requisitions might be made upon the states in proportion to their population, counting three-fifths of the slaves, and collection might be enforced from delinquent states. The acts of congress and treaties were to "be the supreme law of the respective states," and the force of the union might be used against individuals or states to compel their obedience.

In the next place, there was to be an executive, presumably of several persons, elected by con- gress, with powers similar to those granted in the Virginia plan, except for the right of veto.

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There was also to be a supreme tribunal, ap- pointed by the executive, with original jurisdic- tion in cases of impeachment, and with appellate jurisdiction from state courts in maritime cases, in cases in which foreigners were interested, or which affected the construction of treaties or of acts for the regulation of trade or the collection of the federal revenue. The other changes pro- posed were relatively unimportant and did not enter into the subsequent debate.

After some discussion as to the best mode of procedure, so as to insure fair consideration for the new plan, it was agreed to follow the same course that had been adopted for the Virginia plan. It was accordingly referred to a committee of the whole house. In order that the two plans might be placed in due comparison, the amended Virginia plan was recommitted at the same time.

For the better part of three days the conven- tion continued in committee of the whole. The debate was confined to a few of the leading men, notably Paterson, Lansing, and Ellsworth favor- ing the new plan, with Madison, Wilson, and Randolph opposing it. The speakers did not go into details, but contented themselves with con- trasting the general principles of the two plans under consideration. The supporters of the New Jersey plan laid especial stress upon two points : that it accorded with the powers of the conven-

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tion, and that it was more likely to be adopted by the country at large. Their opponents claimed that while they had power to conclude nothing, they had a right to propose anything, and they insisted upon the inherent superiority of their own plan.

In the course of this debate Hamilton deliv- ered a speech to the preparation of which he had evidently devoted considerable care, and which proved to be the only important contribution he made to the discussions of the convention. He said that he had hitherto remained silent partly out of respect to the opinions of others, and partly because of the delicate situation in his own delegation, as he differed radically from the sen- timents of his two colleagues. He felt, however, in the crisis that had been reached, that it was the duty of every man to contribute his best efforts, He accordingly expressed his disapproval of both plans before the house, but of that of ISTew Jersey in particular. He declared his belief in the neces- sity of a strongly centralized government, and frankly said that in his opinion "the British government was the best in the world/' He then read a sketch of a plan of government he had pre- pared, not with an idea of proposing it to the convention, but merely to present his own ideas in concrete form.

The chief differences between his plan and that

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of Virginia were : that the executive and members of the senate were to be elected by electors chosen by the people, and were to serve during good be- havior; that the executive was to have more extensive powers, including an absolute veto ; and that the governors of the various states were to be appointed by the central government and were to have a negative upon the legislation of their respective states.

In later years, before the proceedings of the convention were made public, Hamilton had to defend himself against the charge of having favored a monarchy as the best form of govern- ment. The charge was based upon garbled reports of this speech, and was made for political purposes at a time when Hamilton was the most formidable opponent of the Democratic-Repub- lican party. Hamilton had not proposed a monarchy. When some of his fellow delegates were hesitating through fear of public opinion, he expressed himself bravely and unequivocally for a strong centralized government that should be free from any danger of state interference. Moreover, he did not believe that a correct esti- mate of public opinion had been reached. He thought that the people were beginning "to be tired of an excess of democracy" and, he added, "What even is the Virginia plan, but pork still w ith a little change of the sauce?"

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Hamilton's plan did not provoke discussion and it was not expected to. While the logic and consistency of his position were recognized, his ideas were too radical to meet with any general approval. As Johnson expressed it, the "gentle- man from New York . . . has been praised by everybody, he has been supported by none."

It is altogether possible, if the New Jersey plan had been presented to the convention at the same time as the Virginia plan, that is on May 29, and if without discussion a choice had then been made between the two, that the former would have been selected. It would seem as if the New Jersey plan more nearly represented what most of the delegates supposed that they were sent to do. But in the course of the two weeks' discussions, many of the delegates had become accustomed to what might well have appeared to them at the outset as somewhat radical ideas. Then, too, the changes that had been made, insignificant as some of those changes were, rendered the Virginia plan much more acceptable. And so when the question was fairly presented to them on June 19 of a choice between the New Jersey plan and the Virginia plan as amended, seven states voted for the latter, New York, New Jersey, and Delaware voted for the former, and the vote of Maryland was divided. It is not without significance that this action was

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taken immediately after an able speech by Madi- son, the burden of whose plea was that the New Jersey plan would not "provide a Government that will remedy the evils felt by the states both in their united and individual capacities.'*

CHAPTER VII THE GREAT COMPROMISE

The committee of the whole made its second report on June 19, again recommending the amended Virginia plan, and the convention pro- ceeded at once to a more detailed consideration of the separate resolutions. The large-state men, having accomplished their main purpose, were now willing to make some concessions for the sake of harmony. For example, the objection- able word "national" was stricken out of the first resolution by unanimous vote, and it was "as of course" dropped out of each of the subsequent resolutions in turn. As some of the delegates were in favor of electing the members of the lower house annually, a compromise was reached between that and the term of three years pre- viously established, and the final vote for two years was unanimous. Although the same una- nimity was not obtainable, other modifications were made that rendered the plan less objection- able: the term of the members of the upper house was fixed at "six years, one third to go out biennially"; payment of the members of the legislature "out of the treasury of the United

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States" was not insisted upon; and members of both houses were rendered eligible to state offices, though they were still declared ineligible to offices of the United States.

All of these matters, however, were of minor importance, and on the more essential questions the majority were unyielding. On the other hand, the small-state men had developed a more united and more determined opposition. This fact manifested itself unmistakably. In com- inittee of the whole the vote in favor of two branches for the legislature had been unanimous, now the question found three states in opposition with a fourth divided. Previously Charles Pinckney had only been able to get three states to support his motion for the election of the members of the lower house by the state legisla- tures, now there were four states in favor of it with the vote of a fifth divided. Still the discus- sions were conducted with reasonable equanimity, though it was felt by all that the trial was yet to come. When the question of proportional repre- sentation had been under consideration in com- mittee of the whole, Franklin observed that "till this point . . . came before us, our debates were carried on with great coolness and temper," And so it was now. For a few days everything went comparatively smoothly. But it was only the lull before the storm which every one could

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see approaching, and the suspense was hard to endure. If the storm could not be weathered, it was better to have the end come quickly. So on June 27, when Rutledge made the motion, the convention voted unanimously to proceed at once to the resolutions involving "the most funda- mental points, the rules of suffrage in the two branches."

With the convention impatient to meet the issue, Luther Martin chose this most inopportune time, and in a spell of hot weather, too, to deliver a lengthy harangue. For more than three hours he continued and, having exhausted his own strength, to say nothing of the patience of his audience, he announced to the dismay of all that he would resume his discourse the next day. Some months later when they became engaged in a newspaper controversy over the adoption of the constitution, Ellsworth scathingly wrote to Martin: "You opened against them in a speech which held during two days, and which might have continued two months, but for those marks of fatigue and disgust you saw strongly ex- pressed on whichever side of the house you turned your mortified eyes." Both Madison and Yates complained of the difficulty of following what Martin said, for he spoke "with much diffuseness and considerable vehemence." His main con- tention seems to have been that the general gov<

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ernment ought to be formed for the states rather than for individuals, but his arguments would have been more effective if they had been more concisely and more opportunely presented.

Hamilton was greatly disappointed at the poor figure he was making in the convention, His ideas were too radical to meet with approval, and his vote counted for nothing because it was always overruled by his two colleagues. With all his keen interest in the outcome of the conven- tion, he felt that he himself was wasting time. This feeling may have been strengthened by Martin's harangue, for Hamilton left the con- vention for New York the next day. He wrote to Washington, however, that he would return at any time if he could be of service, and he appeared in Philadelphia two or three times afterwards at irregular intervals.

When the convention finally got at the ques- tion of proportional representation, nearly three weeks were spent in reaching a conclusion. More than once any satisfactory solution of the difficulty seemed impossible, and the convention was on the point of breaking up* Gouverneur Morris afterwards said that "the fate of America was suspended by a hair." Feeling ran high at the very outset, and Franklin interposed with a motion that "prayers imploring the assistance of Heaven ... be held in this Assembly every

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morning." It may seem surprising that such a praiseworthy proposal, especially considering the source from which it came, should meet with any opposition, but apprehension was expressed lest such a step at this late day might lead the public to suspect that there were dissensions in the convention. There is also a tradition that Hamilton opposed the motion on the ground that the convention was not in need of "foreign aid." The real cause of any difficulty in the matter was doubtless given by Williamson thai "the convention had no funds." The incident threatened to become embarrassing when the question was avoided by adjournment.

On June 29, with Connecticut, New York* New Jersey, and Delaware in the negative, and with Maryland divided, the convention decided "that the rule of suffrage in the first branch ought not to be according to that established by the Articles of Confederation." Then came the question with regard to the upper house and it took the form of a motion to give each state an equal vote in that body. The delegates from Connecticut were responsible for presenting the question in that form, but it is doubtful whether very much credit or originality should be ascribed to them, as the idea had been frequently voiced in the previous discussions. The debate which followed was eager and eloquent. The Connecti-

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cut men supported their proposal with modera- tion but with great ability. Others on their side, such as Bedford and Dayton, were not so temperate. Wilson, Madison, and King spoke strongly, and sometimes bitterly, in opposition. Franklin, as usual, suggested a compromise. At an early stage of the debate, the New Jersey delegates proposed that the president should write to New Hampshire "that the business before the Convention is of such a nature as to require the immediate attendance of the Gentle- men appointed by that State/' It was supposed that New Hampshire would side with the small states, so that the purpose of the motion was perfectly evident. But this was apparently regarded as rather sharp practice, and was promptly voted down.

Sunday intervened, and the first thing on Monday morning, July 2, the question was put on giving to each state an equal vote in the upper house. The vote was a tie, five states being in the affirmative, five in the negative, and one divided. This unexpected result was achieved through a combination of two circumstances: Jenifer of Maryland was absent, thus enabling Luther Martin to cast the vote of that state in the affirmative, and Abraham Baldwin, by chang- ing his vote to the affirmative, divided the vote of Georgia. Luther Martin has stated his belief

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that Baldwin did not change his vote because of any change in his opinions, but because he was convinced that the small states would withdraw from the convention before they would yield on this point. There is no other evidence to the contrary and all of the circumstances bear Martin out. Although a small state so far as numbers of population were concerned, Georgia owned a great expanse of western territory and having been encouraged to look forward to becoming one of the large states her delegates in conven- tion were usually found voting on that side. In this instance, it was of importance that Baldwin was a former Connecticut man and so was doubt- less in friendly understanding with the attitude of the delegates from that state. Moreover, a temporary sacrifice of opinion for the sake of harmony was quite in keeping with his character. If his action forced a compromise, as seems probable, praise or blame is to be bestowed upon him according to one's point of view.

The convention was now at a standstill. After one or two suggestions were made that did not seem to meet with any particular approval, General Pinckney proposed a committee of one from each state to try and devise a compromise. Wilson and Madison strenuously opposed it, and though there were several others who did not think very much would come from it, the con*

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vention generally approved and voted for the proposal by a large majority. The members were elected by ballot, and whether it was that the small-state men worked together, or whether the compromise spirit was so strong in the con- vention that it found expression in the selection of the committee, it is impossible to tell, but it is only necessary to read the names of the commit- tee to see that the small-state men had won their fight. The committee consisted of Gerry, Ells- worth, Yates, Paterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin. "That time might be given to the committee, and to such as chose to attend to the celebration on the anniversary of Independence, the Convention adjourned till Thursday."

Little is known of what took place in the committee. Yates recorded that the discussion was largely a recapitulation of the arguments advanced in convention and that as he himself had not previously explained his position he took this occasion to do so. He added that "these remarks gave rise to a motion of Dr. Franklin, which after some modification was agreed to, and made the basis of the report of the committee." Madison, also noted that the report was founded on a motion by Franklin, and further stated that Sherman made a proposal which was not agreed to "that each State should have an equal vote in

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the 2d branch; provided that no decision therein should prevail unless the majority of States con- curring should also comprize a majority of the inhabitants of the United States."

On July 5, the compromise committee pre- sented its report, recommending two proposi- tions "on condition that both shall be generally adopted." The substance of these proposals was: 1. That in the first branch each state should have one representative for every 40,000 inhabitants, counting three-fifths of the slaves, and that money-bills should originate in the first branch and should not be amended by the second branch. 2. That in the second branch each state should have an equal vote.

Immediately the debate broke forth again and recriminations were indulged in. Madison, for example, said that he was only restrained from expressing his opinion of the report through the respect he had for the members of the com- mittee, and he intimated that he was willing to accept whatever consequences might follow its rejection. Gouverneur Morris was emphatic in his disapproval and was understood to say that the country must unite upon a reasonable and just basis, and that "if persuasion does not unite it, the sword will." Bedford apologized for the warmth of his earlier expressions that if the small states were driven to extremities they might find

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some foreign power to take them by the hand, biri found some excuse in statements like that of Morris or like that of Gorham, who said that Delaware must be annexed to Pennsylvania, and New Jersey divided between Pennsylvania and New York. Williamson was ready to hear the report discussed but he thought the propositions contained in it the most objectionable of any he had yet heard.

The members from the small states generally favored the plan although some of them, such as Paterson, opposed it on the ground that it conceded too much. Still it was noticeable that the spirit of compromise was growing stronger. As it did not seem possible or, perhaps, advisable to vote upon the whole report at once, the differ- ent parts were taken up separately. The first part determining the ratio of representation was referred to a special committee of five for the purpose of fixing an absolute number of repre- sentatives from each state in the first instance and of providing for changes in the future. The other points, with surprisingly little discussion of the question of equal voting in the second branch, were ordered to stand as parts of the report, and the vote upon the whole was post- poned until the special committee had made its report.

On July 9, the special committee recom-

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THE TTRE£T COMPROMISE

mended: that the first house of representatives should consist of fifty-six memhers, of which number New Hampshire was to have two, Massachusetts seven, etc.; and that the legisla- ture should be authorized to regulate future representation upon the principles of wealth and number of inhabitants. The latter part of this report was promptly passed without debate and by a large majority, but the first part, specifying the number of members from the various states, was unsatisfactory, so that after a short discus- sion it was referred to a committee of a member from each state. Then the house adjourned.

Promptly the next morning this committee of eleven made its report, increasing the number of representatives in the first legislature to sixty- five. There may well have been some truth in the charge that the numbers were "artfully les- sened for the large States ... in order to pre- vent the undue influence which the large States will have in the government from being too apparent," but the numbers assigned to the dif- ferent states had doubtless been a matter of compromise among the members of the com- mittee, and several proposals in the convention to vary these were defeated by large majorities.

The provision for future changes had vaguely expressed and Randolph now propos that, in order to ascertain the alterations

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population and wealth of the several states, a census should be taken at regular intervals and representation arranged accordingly. William- son suggested, and Randolph readily accepted the modification, that the census should be taken of the free white inhabitants and three-fifths "of those of other descriptions." A very brief debate followed upon the demand of the South Carolina and Georgia delegates that blacks should be counted equally with the whites, but a motion to that effect was voted down by seven states against three, Delaware only coming to the support of the two southern states. Objection was then made that the proposal was not in accordance with the resolution previously agreed to. That resolution had provided for future representation according to wealth and popula- tion, the present proposal left wealth out of account except in so far as slaves were property. Several voiced the opinion that the number of people was the best way of measuring wealth and that at any rate it was the only practicable rule of apportioning representation. The convention decided to proceed with the substitute of Ran- dolph and Williamson but to divide the question. It was unanimously agreed that representation should be regulated according to the census. It was agreed by a vote of six states to four that a census of the "free inhabitants" should be taken,

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but to include "three fifths of the inhabitants of other description" was by a similar majority voted down. There was no sharp division here between slave and free states. On the first vote Delaware and Maryland joined with South Carolina and Georgia in the negative. In the second vote, to include three-fifths of the slaves, the states in favor of it were Connecticut, Vir- ginia, North Carolina, and Georgia, There were evidently motives at work that are not observ- able on the surface, for the last vote appar- ently was not to the liking of the convention. Almost immediately afterwards the whole reso- lution, in the form in which it then stood, was rejected unanimously, and the convention found itself without having advanced a single step.

The discussion of this point had occupied the sessions of one day, July 11. The first thing on the morning of Jiily 12, Gouverneur Morris pro- posed to add to the clause, empowering the legis- lature to vary the representation according to the principles of wealth and number of inhabitants, a proviso that taxation should be in proportion to representation. There was a brief discussion, the wording was modified to limit it to direct taxation, and it was then adopted by the conven- tion unanimously. The main difficulty was thus solved and further details were quite easily agreed upon. It is worthy of note that Gouver-

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neur Morris later wished to have this provision stricken out, although he himself had proposed it, because it did not accord with his own opinions and "he had only meant it as a bridge to assist us over a certain gulph." Before the day was over it had been decided that "representation ought to be proportioned according to direct Taxation and in order to ascertain the alteration . . . which may be required from time to time . , . that a Census be taken within six years . . . and once within the term of every Ten years after- wards of all the inhabitants of the United States in the manner and according to the ratio recom- mended by Congress in their resolution of April 18, 1783." The ratio recommended in 1783 was, of course, the three-fifths ratio. An amendment to have the blacks rated equally with the whites was voted down by eight states against two.

The convention seems now to have been in a better frame of mind. It may ha^e had nothing to do with the outcome, but for over a week, that is, ever since the appointment of the compromise committee, the weather had been hot and on the night of the twelfth it turned cool. At any rate, the next two days were spent in discussing and modifying details of this and other features of the amended reports, and promptly on Monday morning, July 16, the whole compromise was adopted with Connecticut, New Jersey, Dela-

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ware, Maryland, and North Carolina voting for it, with Pennsylvania, Virginia, South Carolina, and Georgia against it, and Massachusetts divided. New York's vote was not included, as Yates and Lansing had left the convention a few days before, because of their dissatisfaction with the way things were tending and because of their belief that they were unwarranted in supporting action taken in excess of their instructions.

This is the great compromise of the convention and of the constitution. None other is to be placed quite in comparison with it. There have been many misunderstandings of it and many false interpretations placed upon it, but with the detailed sequence of events that has just been given it seems as if the main points should be clear. The important feature of the compromise was that in the upper house of the legislature each state should have an equal vote. The prin- ciple of proportional representation in the lower house was not a part of the compromise, although the details for carrying out that principle were involved. An absolute number of representa- tives from the several states was agreed upon in the formation of the first legislature, and the future apportionment was to be made by the legislature itself on the basis of numbers of popu- lation, counting three-fifths of the slaves, and direct taxation was to be in proportion to that

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representation. The proviso that money-bills should originate in the first branch and should not be amended in the second branch was re- garded by some delegates as of great importance, but there were others who considered it of no importance at all.

The credit for the great compromise has been claimed by different men, and it has been ascribed to others. Of more recent years, through the weight of Bancroft's1 influence, the credit has been very generally attributed to the Connecti- cut delegation, and the compromise has been quite commonly known as the "Connecticut compromise." It is true that the delegates from Connecticut were responsible for bringing for- ward the formal question. Introduced by Doctor Johnson, who spoke seldom but very much to the point and was therefore accorded a respectful hearing, the motion was made by Ells- worth "that in the second branch . . . each State shall have an equal vote." In the debate of the following day this was referred to at least once as the "Connecticut proposal" and once as the "Connecticut motion." It is undoubtedly true that the Connecticut delegates took an important part in getting the compromise adopted. But credit to the exclusion of others cannot be given

i History of the Formation of the Constitution (1881), voL If chap. 9.

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to any individual, nor to any delegation, nor to any group of men other than to the small-state men in general. The combination of two meth- ods of representation in one legislature was hinted at on May 30, the very first day that the Virginia plan was under discussion. On the day following, it was definitely and specifically sug- gested, and from then on it was frequently re- ferred to until its final embodiment in the great compromise. With proportional popular repre- sentation established for one house, equal state representation for the other was inevitable, both from the ideas of representation that were cur- rent at the time and from the division of opinions in the convention.

The counting of three-fifths of the slaves, the so-called "three-fifths rule," has very generally been referred to as a compromise and as one of the important compromises of the convention. This is certainly not the case. Attention has already been called to the fact that this ratio was embodied by the congress of the confederation in the revenue amendment of 1783, that the com- mittee of the whole by a vote of nine states to two had added it as an amendment to the Virginia plan, that it was embodied in the New Jersey plan, and that when it was incorporated in the great compromise it was described as "the ratio recommended by Congress in their resolution of

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April 18, 1783." Indeed, one finds references in contemporary writings to the "Federal ratio", as if it were well understood what was meant by that term. A few months later, in the Massa- chusetts state convention, Rufus King very aptly said that "this rule . . . was adopted, because it was the language of all America." In reality the three-fifths rule was a mere incident in that part of the great compromise which declared that "representation ought to be proportioned according to direct Taxation."

In view of subsequent developments in this country, it is not surprising that historical writers have very generally over-emphasized the differing interests of north and south in the con- vention. A correct understanding of the situa- tion, however, can only be obtained if it is realized that in the first stages of the discussion of proportional representation the conflicting interests of east and west were more important than those of slave and free states. In colonial times, as population increased and settlement extended into the back country, the conservative moneyed interests of the coast insisted upon retaining the control of government in their own hands and refused to grant to the interior coun- ties the share in government to which their numbers of population entitled them. This was seen in its most obvious form in the inequality of

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representation in the legislature. Notably was this the case in Pennsylvania, Virginia, and the Carolinas. And this inequality was maintained in the state governments that were formed after the outbreak of the Revolution. In the federal convention, the same interests demanded similar restrictions. Pennsylvania's method of dealing with the frontier counties was cited with appro- val. As it had worked well there for the older portions of the state to keep the power in their own hands, so now in the United States, it was insisted, new states ought not to be admitted on an equal footing with the old states. Gouver- neur Morris was the champion of the commercial and propertied interests, and when the great compromise was under discussion he declared in favor of considering property as well as the number of inhabitants in apportioning represen- tatives. In explanation of his position he stated that he had in mind the "range of new States which would soon be formed in the west," and "he thought the rule of representation ought to be so fixed as to secure to the Atlantic States a prevalence in the National Councils." Morris was also chairman of the first committee of five appointed to determine the numbers of repre- sentatives from the existing states in the first instance and to provide for future apportion- ment. As a member of the committee, Gorham

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frankly explained that one of the objects in their report which the committee had had in view was to give to the Atlantic States the power of "dealing out the right of Representation in safe proportions to the Western States." This por- tion of the report was at first adopted, but was afterwards disregarded in the readjustment by which both representation and direct taxation were to be apportioned according to numbers of population.

In 1787, slavery was not the important ques- tion, it might be said that it was not the moral question that it later became. The proceedings of the federal convention did not become known until the slavery question had grown into the paramount issue of the day. Men naturally were eager to know what the f ramers of the con- stitution had said and done upon this all-absorb- ing topic. This led to an overemphasis of the slavery question in the convention that has per- sisted to the present day. As a matter of fact, there was c^EgjaJojzgfe little jiaidjm the sufejact in the congestion. Madison was one of the very few men who seemed to appreciate the real divi- sion of interests in this country. It is significant that in the debate on proportional representation, he felt it necessary to warn the convention that it was not the size of the states but that "the great danger to our general government is the great

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southern and northern interests of the continent, being opposed to each other/*

Again the ever-recurring interest in the ques- tion of the popular election of senators has led to misinterpretation of things that were said and done in the convention. In the proceedings of the committee of the whole, a momentary inter- est had been aroused over the election of the members of the upper house by the state legisla- tures. A good many years afterward, Madison went over his notes very carefully with the idea of their posthumous publication and at that point, in. view of subsequent developments, he tried to make sure that there should be no mis- understanding by inserting the following expla- nation : "It will throw light on this discussion, to remark that an election by the State Legislatures involved a surrender of the principle insisted on by the large States and dreaded by the small ones, namely that of a proportional representa- tion in the Senate." To make assurance doubly sure, when the subject came up again in the debate leading to the great compromise, Madison inserted another note: "It must be kept in view that the largest States particularly Pennsylvania and Virginia always considered the choice of the second Branch by the State Legislatures as opposed to a proportional Representation to which they were attached as a fundamental piin-

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ciple of just Government." It cannot be too strongly insisted that whatever opinions were expressed in debate, and whatever arguments were advanced for or against the election of the members of the upper house by the state legisla- tures— and all sorts of proposals of other methods were made and all sorts of opinions were expressed — they should be interpreted with reference to the one question at issue, that of proportional representation. It might also be noted that from the moment of the adoption of the great compromise the method of electing the members of the upper house was never questioned in the convention*

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CHAPTER VIII AFTER THE COMPROMISE

When the New Jersey plan was presented to the convention and Paterson had argued against the power of the convention to consider such a plan as that of Virginia, Pinckney had incisively remarked: "Give New Jersey an equal vote, and she will dismiss her scruples, and concur in the National system." This proved now to be true.

eq^i vote m mly 01^ feraa^A of the but it was enough to reeouelte Hies* i® tte plany and they became wanner and warmer advo- cates of a strong national government. Not so with the large states, their plans were so dis- arranged by the loss of proportional representa- tion in the upper house, that as soon as the compromise was adopted on July 16, they asked for an adjournment until the next day to give them an opportunity to consider what was best to be done. After a little show of feeling and some suggestions that it would be better to adjourn sine die, the request was agreed to.

On the next morning, Madison reports, before the regular convention hour, a number of the members from the large states met together for

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consultation, and some members from the small states were also present. It was evident at once that opinions differed as to the consequences involved in the adoption of the compromise. Some regarded it as fatal to the establishment of a strong government and favored extreme measures, even to the point of recommending a separate plan. Others seemed inclined to yield and to favor a concurrence in whatever act might be agreed upon by the convention as a body. Apparently the latter view prevailed, and Madi- son adds that the smaller states were probably satisfied "that they had nothing to apprehend from a union of the larger in any plan whatever against the equality of votes in the second branch." The work was accordingly allowed to proceed.

Many rumors were current as to what was being done in the convention, and it is altogether probable that something had leaked out concern- ing the serious differences of opinion that threat- ened to disrupt the assembly. If so, it was important to allay all fears. Accordingly a day or two after the compromise was adopted an item appeared in one of the local papers. It was prob- ably inspired and it was copied into several other journals:

"So great is the unanimity, we hear, that prevails in the Convention, upon all great federal subjects, that it

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has been proposed to call the room in which they assemble — Unanimity Hall."

The next ten days were devoted to a considera- tion of the remaining resolutions of the Virginia plan. Quite the most important subject of dis- cussion was that of the executive, especially with reference to the method of his election and to his term of office. Upon these questions the con- vention found itself in the same difficulties that had troubled the committee of the whole. If the executive were to be chosen by the legislature, he must not be eligible for re-election and his one term should therefore be a comparatively long term. But the possibility of re-election was a great incentive and if re-eligible, the executive's term of office should be short and he should not be chosen by the legislature. In this complica- tion the delegates became hopelessly involved, and in the endeavor to extricate themselves every conceivable suggestion was made. Appointment by state executives, direct election by the people, and a system of electors who might be chosen by the people, by the state legislatures, or even from the national legislature by lot, were among the methods proposed.

Wilson noted with considerable satisfaction "that the idea was gaining ground, of an election mediately or immediately by the people/5 Among those who supported a popular election,

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direct or indirect, were Madison, Gouver- neur Morris, King, Paterson, and Dickinson. Opposed to them were Randolph, Charles Pinck- ney, Sherman, Rutledge, Mason, Gerry, and Williamson. On a question for direct popular election taken early in the discussion only Penn- sylvania voted "aye." The opinion of the con- vention on this subject seems to have been voiced in one respect by Mason when he said that "it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requi- site capacity to judge of the respective preten- sions of the Candidates." The other serious objection was that the people would always vote for a man of their own state, which would give the larger states an advantage over the smaller that would probably be decisive of the election. To obviate the latter objection it was suggested that each man should vote for two or three can- didates, only one of whom should be of his own state. Another proposal was that the people of each state should name one man, and from the thirteen names thus selected, the national legisla- ture should choose the executive. Both of these suggestions met with more or less approval, but for the time being they came to naught.

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At one time the convention voted down a pro- posal for a system of electors to be chosen by the state legislatures, but two days later, on the sug- gestion that the number of electors in each state might be proportional, it was accepted. It was agreed that New Hampshire, Rhode Island, Delaware, and Georgia, should have one elector, Massachusetts, Pennsylvania, and Virginia each three, and the remaining states should each have two. After thinking it over for a few days, this plan was given up on the ground that to come together for the single purpose of electing a chief magistrate would be expensive and the best men in the distant states would not think it worth while to serve.

In a similar way every possible length of term was suggested. Four, six, seven, eight, eleven, and fifteen years were the more serious proposals. The last term, however, called forth a suggestion of twenty years as being "the medium life of princes." And yet "during good behavior" found its advocates, and four states actually voted in favor of a motion to that effect, rather with an idea of frightening "those attached to a dependence of the Executive on the Legisla- ture" than from any preference for that tenure.

No wonder that Gerry should say that "We seem to be entirely at a loss," nor that Madison should add that "there are objections against

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every mode that has been, or perhaps can be pro- posed." And it is not so surprising that, after twice reconsidering the whole question, the con- vention should finally come back to the method in the report of the committee of the whole: an election by the national legislature, for the term of seven years, with ineligibility to re-election.

The other points relating to the executive were passed without debate, save in the matter of impeachment. King, Gouverneur Morris, and Charles Pinckney argued against it, unless the executive were to be appointed for life or were to be given too extensive powers. On the other side were Wilson, Madison, Mason, Gerry, Ran- dolph, and Franklin. The latter arguments were so strong that Gouverneur Morris declared him- self to be convinced and then made a strong plea for the necessity of impeachments. When the vote was taken only Massachusetts and South Carolina were in the negative.

In all these debates over the executive, while there was the greatest diversity of opinion, lines of division do not seem to have been clearly drawn. Members expressed simply their indi- vidual and personal points of view. Gouverneur Morris, for example, as we have seen, actually argued on both sides of one question. At the same time it is noticeable that the large-state men in general naturally favored a system which

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would insure to the large states a greater influ- ence or a greater share in the election. This tended to bring them to the support of a popular election and to oppose an election by the legis- lature.

After the executive, the next most difficult subject was that of the judiciary, and here also the method of selection was now the chief point in dispute. Madison, Wilson, and Gorham strenuously opposed the method previously agreed upon, that is, of a choice by the second branch of the legislature. They proposed an appointment by the executive, and when that was defeated they moved for an appointment by the executive with the "advice and consent of the second branch." This was lost on a tie vote. Since obtaining equal representation in the upper house, the small states were more than ever in favor of retaining the appointment by that body, and they finally succeeded in doing so but only by the narrow margin of this tie vote. There was no difference of opinion as to the jurisdic- tion of the national courts, and the convention was content to declare in general terms that it should extend "to all cases arising under the national laws and to such other questions as may involve the national peace and harmony."

A proposal to unite the judiciary with the executive in the exercise of the veto power was

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again rejected and as before one of the chief arguments against it was that it would give the judiciary two opportunities to pass upon the constitutionality of a law. Closely connected with this subject was the question of the negative upon state laws vested in the national legislature. There was serious objection to any such power, especially as it was felt to be unnecessary, because the national judiciary would have the right to declare invalid such state laws as tres- passed upon the fields of national legislation. The negative upon state laws was therefore taken away by a vote in which Massachusetts, Virginia, and North Carolina were the only states in its favor. It was Luther Martin who then proposed a modified form of one of the reso- lutions of the New Jersey plan which was unani- mously accepted. The resolution as Martin proposed it and as it was first adopted was "that the legislative acts of the United States . . . shall be the supreme law of the respective States . . . and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding." Con- trary to Martin's intentions, that resolution with a single significant change developed into one of the all-important articles of the constitution strengthening the national government.

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On the question of referring the new consti- tution to popularly elected conventions in each state, the sentiment in favor of it was much stronger than before. Randolph, Gorham, King, and Williamson argued for it more on the ground of expediency, while Madison, Gouver- neur Morris, and Mason supported it as funda- mental in the establishment of a new government. Madison "considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true differ- ence between a league or treaty, and a Constitu- tion" Ellsworth, Gerry, and Paterson favored ratification by the state legislatures, but their motion to that effect only obtained three votes in its support, and the original proposal was then reaffirmed by an all but unanimous vote. Again the idea was suggested of the constitution being ratified by less than the whole number of states and of its being in force between the states so ratifying.

The only other item of interest in these pro- ceedings was that relating to members of the upper house. When the great compromise was adopted, many of the delegates had supposed that the voting in that house would be by states, but since the main point of equality of represen- tation had been gained, there was little objection to allowing the members to vote individually.

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Three members from each state threatened to make the ultimate number of members in the second branch too large, and after it was decided in favor of two members, it was readily agreed that they should vote per capita, Maryland only being found in the negative.

The fifteen resolutions of the original Virginia plan had now been increased to twenty-three. With a few exceptions, chiefly in the provisions of the great compromise, these resolutions were of a general character and a working constitution must be a detailed instrument. It was perfectly evident that the convention itself could not pre- pare such a document without great loss of time and energy. From occasional references in debate, and from the fact that some of the dele- gates left Philadelphia several days earlier, it would seem that the method of procedure to be followed was generally understood. At all events, when the proper time arrived, without any hesi- tation it was agreed to refer the proceedings of the convention to a committee of five who should prepare and report a detailed constitution con- formable thereto. The committee that was elected consisted of Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, and Wilson of Penn- sylvania. On July 26 the convention adjourned and the committee was given until August 6 to

AFTER THE COMPROMISE

prepare its report* Shortly before adjournment the committee was instructed to receive a clause requiring qualifications of property and citizen- ship in the executive, judiciary, and legislative officers. At the very last moment, in what appeared to be a purely formal way, the com- mittee of the whole was discharged from acting on the propositions submitted by Charles Pinek- ney on May 29, and they were now referred to the committee of detail. Similar action was taken with regard to the resolutions presented by Paterson on June 15.

Four days before the adjournment was taken the delegates from New Hampshire arrived. It was too late for them to take any important part in the proceedings, but if we may judge from their private correspondence they approved of what had been done.

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CHAPTER IX THE COMMITTEE OF DETAIL

Rutledge, Randolph, Gorham, Ellsworth, and Wilson formed a strong combination. It was well that this was so, for the task before the com- mittee of detail was not an easy one, and only ten days had been allowed in which to complete it. Inasmuch as its report was a definite and an important stage in the framing of the constitu- tion, the significance of the work of the commit- tee of detail is self-evident. Little has been written in the past, for little has been known of how the committee set about the preparation of its report. Within a very few years, however, certain documents have come to light which reveal some of the things that were done and permit a shrewd guess as to others.

It must remain more or less a matter of con- jecture, but it seems probable that one of the first steps taken was to have some one of their number prepare a preliminary sketch of a con- stitution as a working basis upon which the com- mittee could proceed. Doubtless this was done only after discussion by the whole committee, when certain general principles and ideas were

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determined. In view of the part he had taken, first in presenting and at various times in ex- pounding the Virginia plan, Randolph was a very natural person to whom this duty should be assigned. At any rate, we have in Randolph's handwriting what is evidently the first draft of a constitution based specifically upon the resolu- tions the convention had adopted. Sometimes this draft goes into considerable detail, but at other times it only suggests what might be done, and it contains introductory and concluding explanations, with occasional running comments in the text. This draft was subjected to exten- sive and occasionally to radical changes, some of which were made in the writing of Randolph, but others were by the hand of Rutledge. The infer* ence is that the draft was submitted to the com- mittee, and after discussion and criticism, the modifications agreed upon were inserted by the chairman. As an indication that the document was one of a series, practically every item in it has been checked off with a pen.

It is quite possible that James Wilson had been, working independently at the same time and in* a similar way, but the next stage of which we have record shows documents in the handwriting of Wilson, presenting portions of the Randolph draft further developed, together with extracts, carefully taken from the New Jersey plan and

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extracts from the plan of Charles Pinckney. These disjointed parts were then apparently worked over by Wilson and fitted together into a single harmonious document. This may have been done alone or with the assistance of the rest of the committee.

If it is realized that each of the processes which has been described in a few words represented no small amount of thought and labor, and that the ability of the whole committee had evidently been brought to bear at least upon the more diffi- cult points, it will be appreciated that the Wilson compilation represented a fairly advanced stage of the committee's work. Certainly it seems to have been satisfactory to the other members, for it was gone over by them with the utmost care, not for the purpose of making important changes, but to see that the phrasing of the vari- ous clauses accorded with what they wished to convey. As in the case of the Randolph draft most of the changes made were in the handwrit- ing of Rutledge, the chairman. This represented the last step in the preparation of the report, except that, as the document was to be printed, a fair copy was doubtless made before it was turned over to the printer.

The report of the committee of detail, as it was printed for the use of the members of the con- covered seven folio pages with wide

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margins left for making notes. Upon examina- tion it was found to consist of a preamble and twenty-three articles embodying divisions into forty-three sections and a still larger number of paragraphs. The first two articles were intro- ductory, and the next seven articles, three-fifths of the whole document, were devoted to congress, its composition and powers. A single article, only a small fraction of the space given to con- gress, covered the executive, and another of equal length was sufficient for the judiciary. Two short articles placed certain prohibitions upon the states, and three provided for interstate privileges. The remaining seven articles were devoted to the admission of new states, the guar- antee to each state of a republican government, the provision for future amendments, the taking of oaths to support the constitution, the ratifica- tion of the new instrument and the inauguration of the government under it.

In tracing the work of the committee through its various stages a number of interesting and important things are noticeable. The first of these is that the document which proved to be of the most service to the committee was the articles of confederation. It has already been pointed out that the new government in process of con- struction was radically different from the con- federation, but that it arose from the attempt to

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remedy the defects of the old. That Is signifi- cantly brought out here. The provisions for the powers of congress, the prohibitions placed upon state action, and the insurance of interstate privileges were taken directly from the articles of confederation, and sometimes word for word. A few important powers were added, but the significant change is the attempt to infuse into the new system sufficient energy and power to carry out the functions that had been granted to the old. With the qualification just stated, it is not too much to say that the articles of confedera- tion were at the basis of the new constitution. In less important matters also, the articles of con- federation were drawn upon, as in framing the introductory clauses, and in providing a method of procedure in settling disputes between the states*

In the second place, after the articles of con- federation the next most useful documents were the New Jersey and Pinckney plans. These were used rather differently than the articles of confederation and more for the purpose of assist- ance in wording various sections and clauses. And finally, the state constitutions were continu- ally drawn upon. Some of this was conscious, and some of it was unconscious borrowing. Just as in the convention the delegates were apt to propose measures with which they were familiar

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in their own states, so the committee drew upon their own experience, or in some cases copied specific clauses from a particular state constitu- tion. The phraseology of the various state constitutions is so similar that it would be a wearisome and unprofitable task to attempt to determine the indebtedness of the committee to the different ones, but it is of interest that the New York constitution of 1777 seems to have been used more extensively than any other. In preparing his plan, Charles Pinckney had made extensive use of the articles of confederation and of the state constitutions, but of the constitution of New York in particular. Partly through the medium of his plan and partly through the document itself, the New York constitution was of great service, and especially in connection with the executive. Although the executive was to be called "The President of the United States" and was to be given the title of "His Excellency/' the office was modelled on that of the state governors. In the specification of his powers and duties, and in the provision that in case of his death or removal he should be succeeded by the president of the senate, the committee followed closely the procedure in New York.

The importance of the legislature and its reorganization was indicated by the relative amount of space devoted to it. Yet a large part

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v"£ this was given up to the specification of details, required by the general resolutions of the convention, and to the internal organization of ^he houses. The provisions for the latter were taken from the familiar procedure of the indi- vidual states and were of relatively little impor- tance. Such were the provisions for deciding upon elections, for punishing members, and for choosing their presiding and other officers.

In general the committee made their work conform to the resolutions adopted by the con- vention, but room was left for the exercise of judgment, as in detailing the powers of congress and in defining the jurisdiction of the supreme court. In some instances also, it was inevitable that they should go beyond their instructions. It was found as impossible for the committee as it had been for the convention to agree upon qualifications for ip^aibership in the two houses of the legislature. Accordingly citizenship and residence only were inserted and property quali- fications were left for the legislature itself to determine. In the same way, being unable to adopt a satisfactory uniform suffrage qualifica- tion, it was wisely left the same as might be pro* vided in each state for the election of the populav branch of its legislature. The trial of impeacl:^ ments was once more placed with the supreme court, but a practice with which the states were

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already familiar was adopted in granting to the house of representatives the sole power of im- peachment and by limiting the judgment in case of conviction to removal from office and to future disqualification for office. In specifying the ju- risdiction of the supreme court the committee took the liberty of inserting that all criminal trials should be by jury. In place of allowing congress to appoint ambassadors, to make treaties and to settle disputes between the states, as had been the case under the confederation, those functions were now transferred to the senate, the body which most nearly corresponded to the old con- gress as the representative of the states, and the disputes between states to be settled in this way were limited to those regarding territory or jurisdiction.

Thus far little is to be expressed beyond praise for the committee's work, but certain liber- ties were taken which demanded explanation. The convention had agreed that the president should be paid by the national government, it was understood that this would be done with the lower house and with the upper house the point had been left unsettled. The committee provided that the members of both houses should be paid by the state in which they were chosen, and from the clause on the payment of the president "out of the public treasury" was dropped. Under the

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provision for the admission of new states, although the resolutions did not warrant it, the committee stipulated that these states should "be admitted on the same terms with the origins1 States." In guaranteeing protection to each state "against domestic violence,'5 the committee limited this to cases where application was made by the state legislature. Further instances, the most conspicuous and the most important of all, were apparently due to the influence of the two southerners on the committee, Rutledge and Randolph: Provisions were added that there should be no interference with the slave trade, that no export tax should be laid, and that navi- gation acts should require a two-thirds vote of both houses.

The importance of the work of the committee of detail was generally appreciated, and it was a piece of work that was well done. Great credit was given to the members of the committee, and it is not surprising that they should take pride in it, nor that in later years it should be still more greatly magnified in their eyes. Ellsworth evi- dently had it in mind shortly after Washington's death, when his grandson quoted hi™ to the effect that "Washington's influence while in the Con- vention was not very great, at least not much as to the forming of the present Constitution of the United States in 1787, which Judge Ellsworth

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said was drawn by himself and five others." For the present purpose, however, it is sufficient to regard the report of the committee as marking a distinct stage in the development of the con- stitution.

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CHAPTER X DETAILS AND COMPROMISES

It was on Monday, August 6, that the conven- tion reassembled to receive the report of the com- mittee of detail, and from then until September 10 that report was the subject of their delibera- tions. Every day for five weeks, and for five hours each day — and during one week for six hours each day — the work was kept up. From the opening day to the end of the month of August, William Samuel Johnson records in his diary only five cool days, and two of those were Sundays. Article by article, section by section, clause by clause, the draft of the constitution was discussed and passed upon. It was a trying and a wearisome task. Since the adoption of the great compromise and the protection of the inter- ests of the small states in the senate, many of the opposition had been won over and were now working in harmony with those who were in favor of establishing a strong national government. It is little wonder, therefore, that before the end was reached many of the delegates became impa- tient with those who were stickling for points which to lihe majority seemed trivial and that toward the last, in order to bring the work to a

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conclusion, the large majority rode roughshod over the few in the minority.

If these points are borne in mind, and if it is remembered that much of the work during these weeks was purely formal, it is possible to pass rapidly over many of the things that consumed a good deal of time but that were after all of minor importance in considering the work as a whole. The spirit of compromise was clearly discernible in determining such details as the age and terms of office of members of the legislature. The qualifications of voters were settled in the same spirit, by adopting the report of the com- mittee that they should be the same "as those of the electors in the several States, of the most numerous branch of their own legislatures." It being again impossible for the convention to agree upon any satisfactory rule of property qualifications for members of congress, it was decided to drop it altogether, and the commit- tee's provision that the legislature might establish such qualifications was accordingly struck out. The question over allowing the members of con- gress to be appointed to offices that they them- selves established was settled by prohibiting such appointment to any office which was created, or the emoluments of which had been increased, during the term of the members in question, and by providing that no person holding an office

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under the United States could be a member of congress.

The committee of detail had accepted the report of the first compromise committee and had placed future representation in the lower house "at the rate of one for every forty thousand" inhabitants. This ratio was objected to by Madi- son because the future increase of population would render the number of representatives excessive. Gorham did not think that the govern- ment would last long enough for that : "Can it be supposed that this vast Country including the Western territory will 150 years hence remain one nation?" By simply inserting the words "not exceeding," so that the clause read "not exceeding the rate of one for every forty thou- sand," the difficulty was removed and the section was unanimously accepted.

Annual meetings of the legislature were readily agreed to, but it was a question whether May or December was the better time of year for convening. Madison preferred May as the better season for travelling, while for December it was argued that a summer session would inter- fere with the business of the members, almost all of whom would probably be "more or less con- nected with agriculture." The latter idea pre- vailed, and the sessions were accordingly fixed for the "first Monday in December unless a dif-

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ferent day shall be appointed by law," There seems to have been no intention, indeed no conception, that a long interval might elapse between the election of members of congress and their assumption of office. That unfortunate condition is the result of an accidental com- bination of circumstances attending the time of the ratification of the constitution and the inauguration of the new government.

The requirement of three years' citizenship for members of the house and of four years for the senate was regarded as insufficient in keeping foreigners out of the legislature. The time was accordingly lengthened to seven years for the lower house, and a proposal was made to increase it for the upper house to fourteen years. The question was a delicate one as several member? of the convention were themselves of foreign birth. One of these, Butler, argued in favor of the restriction, frankly admitting that until he had lived in this country for some time he was not fitted to serve in public office. Wilson, on the other hand, spoke strongly against it. When he lived in Maryland, he had felt keenly his being barred from public office on that score, and besides it seemed anomalous to permit a man to share in the framing of a new constitution and then prevent him, from holding office under it. Nine years' citizenship was finally agreed to as a

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suitable requirement for members of the upper house, although an unsuccessful effort was made by Wilson to have both this and the requirement for the lower house reduced in length.

One of the cases in which the committee of detail had exceeded its powers was in providing for the payment of the members of both houses of the legislature by the states in which they were chosen. When this clause came before the con- vention there was little discussion of the matter at all. By a large majority it was voted that they should be paid out of the national treasury. This was considered necessary to render them independent of the states. There was objection to fixing in the constitution the amount of the payment because of the changes that would take place in the value of money. To avoid the diffi- culty a previous suggestion of Madison's was considered that some other standard of value should be taken, such as wheat This was not considered feasible, and it was finally decided to allow the legislature "to fix their own wages." There were objections to this method, but they were rather of sentiment or of delicacy, and it seemed to be the only practicable way.

The clause providing that money-bills should originate in the lower house and prohibiting the senate from amending them, which had been a part of the great compromise, was seriously

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objected to. This procedure was not copied directly from the British constitution but came through the medium of the colonial and state governments, where it had not proven an un- qualified success. It was considered by some of the delegates as of no particular importance and it was opposed by others, on practical grounds, as being inherently objectionable. It was accord- ingly struck out, but the action caused so much dissatisfaction that the question was reconsidered. After a debate, in which several modifications were suggested and disapproved of and in which Randolph, Gerry, Mason, Franklin, Dickinson, and Williamson, argued in favor of the restric- tion, while Madison, Wilson, Rutledge, Gouver- neur Morris, Charles Pinckney, and Ellsworth opposed it, the provision was again voted down, In recording the vote, Madison noted that Wash- ington voted in favor of the measure, but he explained that Washington disapproved and had formerly voted against it and that he said "he gave up his judgment because it was not of very material weight with him and was made an essen- tial point with others, who if disappointed, might be less cordial in other points of real weight."

The powers to be vested in congress were an all-important feature of the committee's report. The first stipulation of the convention under this head was that the new congress should have all

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the legislative rights of the old. And the sur- prising thing, especially to one accustomed to condemn the articles of confederation, is to see how large a part of the powers vested in congress were taken from the articles of confederation. The resolutions of the convention had further provided that there should be included in the powers of congress the right to legislate in all cases for the general interests of the union and where the states were separately incompetent, or where the harmony of the United States might be interrupted by the exercise of individual legislation. Under this provision the committee defined treason against the United States and provided for the punishment thereof; it provided for the establishment of a uniform rule of natu- ralization, for the punishment of offenses against the law of nations; and in two short clauses it granted power for the laying of taxes and for the regulation of commerce. A somewhat longer clause provided for the calling forth of the militia, "to execute the laws of the Union, enforce treaties, suppress insurrections and repel inva- sions." And a very important clause was added "to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Con- stitution, in the government of the United States, or in any department or officer thereof/*

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DETAILS AND COMPROMISES

The New Jersey plan had shown early in the convention that even the small states had been willing to increase considerably the powers of congress. Yet it is an indication of how far the members of the convention had progressed toward the idea of a strong national government that most of the extensive powers specified by the committee were readily accepted by the con- vention, and that most of them were, in fact, accorded unanimous consent. Some minor modi- fications were made such as "to declare war" instead of to make war, or "to provide and main- tain a navy" instead of to build and equip fleets; a further power was added in authorizing con- gress to establish uniform laws on the subject of bankruptcy; and an interesting question was raised relating to the assumption of state debts by the national government.

Several members of the convention, among them Gerry, argued strongly for a positive in* junction upon congress to assume the state obligations, as a matter both of justice and of public policy. The objections to assumption were based mainly upon the fear of benefiting speculators rather than legitimate creditors. The question was referred to a committee of a member from each state, and it was finally com- promised by providing that all debts should be "as valid against the United States under this

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constitution as under the confederation/* This left the matter in the same delightful uncertainty as before. Not long after this, Gerry announced his inability to accept the new constitution in the form which it had taken, and he soon became openly hostile to it. This hostility was charged to his failure to accomplish the assumption of state debts, for he was said to have speculated heavily in this class of securities. While this might have been in accord with the ethics of the time, in justice to Gerry it ought to be said that the charge was made anonymously in the con- troversy that later raged over the adoption of the constitution, and Gerry strenuously denied hold- ing more than a very small amount of these securities.

A question was raised at this same time regard- ing the control of the state militia, and it was referred to the same committee that was con- sidering the assumption of state debts. The reference of both matters to the same committee of a member from each state was probably made upon the principle that both involved questions of state rights. While the committee reported upon Ix>t3i questions at the same time, they were taken up separately by the convention. The question of the state militia was settled by granting to the federal government the right to pass laws secur- ing unif orraity in the organization, arming, and

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discipline of the militia, and the right to govern such parts of them as might be called into the service of the United States, while to the states was reserved the appointment of the officers and the training of the militia according to the discipline prescribed by congress.

Another question of interest and importance was with regard to the admission of new states. It will be remembered that Gouverneur Morris had favored the admission of new states into the union under such limitations as would leave the control of federal matters in the hands of the Atlantic states. Either on their own responsi- bility or because they interpreted the views of the convention that way, the committee of detail inserted a provision that new states should "be admitted on the same terms with the original states/' When it came up for consideration Morris protested against this provision, and he made his objection on the same grounds as his previous opposition: "He did not wish to bind down the legislature to admit Western States on the terms here stated . . . [He] did not mean to discourage the growth of the western country. . . . He did not wish, however, to throw the power into their hands." Such men as Madison, Mason, and Sherman opposed him, but Morris succeeded in getting the objectionable clause stricken out, and then without a dissenting voice

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the convention agreed to his substitute: "New States may he admitted hy the Legislature into the Union/' This phraseology is apparently so artless that it might well ohtain the unanimous support of the convention, but in view of its ori- gin and authorship it acquires great significance. How great this is one hardly realizes until Mor- ris's own interpretation of the clause is con- sidered. Sixteen years later, at the time of the Louisiana Purchase, in a letter to Henry W. Livingston, he wrote:

<eYour inquiry ... is substantially whether the Con- gress can admit, as a new State, territory, which did not belong to the United States when the Constitution was made. In my opinion they can not.

"I always thought that, when we should acquire Canada and Louisiana it would be proper to govern them as provinces, and allow them no voice in our coun- cils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposi- tion would have been made."1

1 Mr. Justice Campbell, in delivering his concurring opinion in the Dred Scott case (19 Howard, 507), cited this letter of Morris's and it was also introduced in support of the government's cause when the Insular Cases were argued before the Supreme Court It is interesting to note, however, that in the latter instance only so much of the letter was quoted as asserts the right to govern territory not originally belonging to the United States as provinces without voice in Ike federal councils. That part of

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The admission of new states naturally brought up the question of western land claims, and the same action was taken as in the case of the state debts. The matter was left in statu quo: "Nothing in this Constitution contained shall be so construed as to prejudice any claims either of the United States or of any particular state." This was attached to another clause giving con- gress power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

On the other hand, it was felt necessary to place limitations upon the powers of congress in certain directions. A general restriction upon the activ- ities of congress was to be found in the veto power of the president, which the convention had decided could be overruled by a two-thirds vote of both houses. In working out the details of this provision the committee seem to have copied directly from the constitution of Massachusetts, although Madison states it was modelled on

the letter which doubts the right of admitting such territory into the union was significantly omitted. Brief in the Insular Gases, Washington, 1901, 164.

Bancroft, History of the Constitution (sixth edition, II, 163), omits this particular letter, but cites others by the same hand in support of his surprising statement that Horns "gave his ancient fears to the winds," and proposed the clause in question "with the full understanding and intention that an ordinary act of legisla- tion should be sufficient by a bare majority to introduce foreign territory as a state into the union."

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New York. The convention accepted this with some minor modifications, and then changed the required vote to overrule from two-thirds to three-fourths.

The great compromise had provided that direct taxation should be proportioned to population, to which the committee of detail added that "no capitation tax shall be laid unless in proportion to the census*" The committee of detail had taken from the articles of confederation the pro- vision that the United States should not grant any title of nobility. The convention accepted both of these and added another provision from the articles of confederation: "JSTo person holding any office of profit or trust under the United States, shall without the consent of the Legisla- ture accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign State/'

One of the limitations placed upon the powers of congress by the committee of detail took the form of a statement of just what should consti- tute treason against the United States, and of a stipulation that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted. With some verbal modifications this provision was unanimously adopted by the convention, and a f urther provision was added that congress should

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pass no bill of attainder nor any ex post facto law.

While the powers of congress were under con- sideration, the convention approved the power "to borrow money/' but disapproved the words "and emit bills," on the credit of the United States. Gouverneur Morris said that "the Monied interest will oppose the plan of Govern- ment, if paper emissions be not prohibited." Read "thought the words, if not struck out, would be as alarming as the mark of the Beast in Revelations." As it was generally felt that the government under the power to borrow money would have sufficient latitude in "the use of public notes as far as they could be safe and proper," the objectionable words were struck out.

British tradition had shown itself unmistakably in defining treason and in prohibiting bills of attainder, and another interesting manifestation of it came when the power "to raise armies" was under consideration. The convention first modi- fied the wording of the clause so that it read "to raise and support armies" and then added the proviso that no appropriation should be for a longer term than two years.

The limitations thus far considered were theo- retically important, but those placed upon the control of commerce were of direct practical concern. ISTew England and the middle states

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were the commercial and shipping sections of the country. To require that all American pro- ducts should be carried in American built and American manned vessels would have been a great stimulus to shipbuilding and commerce. But the south was a producing section. It had to have markets for its raw materials and it therefore needed free intercourse with the outside world. Such restrictions as had been laid on the colonies by the British government, before American independence, were greatly dreaded. Also, to meet its labor problem, the south needed an increasing number of slaves* The influence of the southern members in the work of the com- mittee of detail has already been referred to in the provisions, that there should be no tax on exports nor on "such persons as the several States shall think proper to admit," and that navigation acts should require a two-thirds vote of both houses*

When these questions came before the con- vention, the prohibition of export taxes was objected to, but more strenuously by the middle states than by New England. Madison sug- gested as a betterment of the situation that export taxes might be laid by a two-thirds vote. This proposal was lost and Massachusetts then supported the provision of the printed draft. The prohibition of export taxes was accordingly

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adopted and by a vote of seven to four. The next clause of this same section, which was intended to forbid interference with the slave trade, precipitated a sharp although a brief discussion.

A few of the northern delegates and Mason of Virginia objected on moral grounds to the recognition of slavery in the constitution, and more particularly to the encouragement of that institution through permitting the slave trade. But the stronger resentment seems to have been against the attitude of the delegates from North Carolina, South Carolina, and Georgia, who de- clared that their states would never accept the new plan "unless their right to import slaves be untouched." To hold up the convention with such a threat was irritating, to say the least. There were others, perhaps a majority of the delegates, that were well represented by Ells- worth who argued in favor of letting "every state import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves — What enriches a part enriches the whole, and the States are the best judges of their particular interest." It being doubtful whether a satisfactory settlement of the question could be made by the convention, a pro- posal was welcomed that the clause relating to the slave trade and the section on navigation acts

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should be referred to a committee of a member from each state. As Gouverneur Morris frankly expressed it: "These things may form a bargain among the Northern and Southern States."

The committee reported promptly in favor of no prohibition before 1800 of "the migration or importation of such persons as the several States now existing shall think proper to admit/' but meanwhile permitting the taxation of persons thus imported at a rate not exceeding the average of import duties, and permitting navigation acts to be passed without requiring a two-thirds vote. After changing the date to 1808 and limiting the tax to $10 as the equivalent of the estimated 5 per cent import duty, objection was made to the vagueness of the terms used, and Gouverneur Morris proposed that the clause should read "importation of slaves into North Carolina,, South Carolina and Georgia." This seemed inadvisable, and although attention was called to the fact that "as the clause now stands it implies that the Legislature may tax freemen imported," the convention accepted the first part of the report relating to the slave trade — New Jersey, Pennsylvania, Delaware, and Virginia being against it. The dause relating to navigation acts was postponed, but a few days later, an amendment requiring a two-thirds vote having

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been lost, the convention unanimously accepted this part of the compromise also.

This was one of the conspicuous and important compromises of the convention. It was not com- monly so frankly spoken of as it was by General Pinckney. In the convention he argued against any restriction upon the passing of navigation acts because of the "liberal conduct" of the eastern states "towards the views of South Caro- lina." And a few months later in his state legis- lature, in answer to objections to the limitation of the slave trade to the year 1808, he explained: " 'Show some period/ said the members from the Eastern States, 'when it may be in our power to put a stop, if we please, to the importation of this weakness, and we will endeavor, for your conven- ience, to restrain the religious and political preju- dices of our people on this subject.' ... In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but, on the whole, I do not think them bad." It is worth noting that the prohibition of export taxes was no part of the compromise. The point had been settled previously and was not referred to the committee nor was it included in their report* Undoubtedly the decision upon export taxes was partially responsible for bringing about the com-

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promise in question, but it did not actually form a part of it.

As soon as the compromise had been finally adopted, a clause providing for the return of fugitive slaves was unanimously agreed to with- out debate.

When the compromise on the slave trade and navigation acts was before the convention, provisos were adopted that no "regulation of commerce or revenue" should "give preference to the ports of one state over those of another," and that "all duties, imposts, and excises, laid by the Legislature, shall be uniform throughout the United States." This action was taken as the result of an organized and determined effort on the part of the Maryland delegates. Dr. Mc- Henry had been called home to Baltimore by the serious illness of his brother shortly after the convention first met, and he did not return to Philadelphia until the members reassembled in August to receive the report of the committee of detail. He then persuaded his fellow delegates from Maryland to meet together to discuss the report and to try and agree upon some common plan of action. Of several of these meetings McHenry kept some notes, and while there were different points with which they were not satis- fied, they were especially concerned over the com-

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mercial powers of congress. The modifications noted above were among the results obtained.

Luther Martin reports another such gathering of delegates: "There Mr. Gerry and Mr. Mason did hold meetings, but with them also met the Delegates from New Jersey and Connecticut, a part of the Delegation from Delaware, an hon- orable member from South Carolina, one other from Georgia, and myself." Of this latter caucus we have no further record*

Sad experience under the articles of confedera- tion had taught the United States the dangers which lay in the interference with the work of the general government through the action of the individual states. An important feature of the new government, accordingly, was the restric- tions that were to be placed upon the states. The committee of detail had prepared two articles on this subject. The first prohibited the states absolutely from coining money, granting letters of marque and reprisal, entering into treaties or alliances, and from granting titles of nobility. The second prohibited the states, except with the consent of congress, from emitting bills of credit, making anything but specie legal tender, laying duties, keeping troops or ships of war, making agreements with other states, or from engaging in war unless actually invaded. These sections were important then, and they have proven to be

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of importance since the constitution has been in operation, yet they were taken in the main from the articles of confederation. The provisions regarding the coining of money, bills of credit, legal tender, and laying of duties, were new and of great significance. But the greater signifi- cance comes from the fact that in the new instru- ment of government the limitation of the indi- vidual state's activity was more sharply defined and unequivocally expressed, and that it was to be enforced under a strong government. These restrictions were readily accepted by the conven- tion. The prohibition of bills of credit, and of making anything but specie legal tender was made absolute, instead of permissible with the consent of congress, and the states were also pro- hibited from passing any bill of attainder or eos post facto law. A proposal by Ruf us "King, how- ever, was defeated, that they should take from the Ordinance of 1787, passed by congress while the convention was in session, the prohibition of any law impairing the obligation of contracts.

To one who is especially interested in the judi- ciary, there is surprisingly little on the subject to be found in the records of the convention. We have already seen that the first question in this connection that aroused any particular discussion had to do with the establishment of inferior courts. The objection to these courts came fi^om

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the feeling that cases ought to be tried in the state courts first and come to the federal courts only on appeal. When that difficulty was dis- posed of, hy permitting hut not requiring the establishment of inferior courts, a question came up over the method of appointment of the judges. The last determination of that question had been for an appointment by the senate, and for the present that was allowed to stand. The jurisdiction of the federal courts had not been determined by the convention beyond the accept- ance of the general principle that it should include cases arising under the laws of the United States and cases involving the national peace and harmony. The specifications regarding this jurisdiction were thus left to the committee of detail. The committee having drafted this part of its report with considerable care, there was no objection raised except to the wording of a few clauses, the convention tending rather to an enlargement than to a limitation of jurisdiction. The cases under laws of the United States were extended "to all cases both in law and equity arising under this Constitution and the laws of the United States, and Treaties made . . . under their authority/' All cases affecting ambassa- dors and other public ministers, and all cases of admiralty and maritime jurisdiction, were agreed to. Controversies between states and the citizens

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of different states seemed to include territorial disputes as well, and so the elaborate procedure copied from the articles of confederation for such cases was stricken out, and "controversies to which the United States shall be a party" was added.

That the jurisdiction of the supreme court should be original in cases affecting foreign min- isters and in cases to which a state should be a party and appellate in all other cases, was ac- cepted without question, except that the appel- late jurisdiction was made to be "both as to law and fact." That the trial of criminal offenses should be by jury and should be held in the state where the crime was committed met with no objection. At this