The Connecticut compromise.
The situation had become dangerous. "The convention," said Martin, "was on the verge of dissolution, scarce held together by the strength of a hair." When things were looking darkest, Oliver Ellsworth and Roger Sherman suggested a compromise. "Yes," said Franklin, "when a joiner wishes to fit two boards, he sometimes pares off a bit from both." The famous Connecticut compromise led the way to the arrangement which was ultimately adopted, according to which the national principle was to prevail in the House of Representatives, and the federal principle in the Senate. But at first the compromise met with little favour. Neither party was willing to give way. "No compromise for us," said Luther Martin. "You must give each state an equal suffrage, or our business is at an end." "Then we are come to a full stop," said Roger Sherman. "I suppose it was never meant that we should break up without doing something." When the question as to allowing equality of suffrage to the states in the Federal Senate was put to vote, the result wasa tie. Connecticut, New York, New Jersey, Delaware, and Maryland—five states—voted in the affirmative; Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina—five states—voted in the negative; the vote of Georgia was divided and lost. It was Abraham Baldwin, a native of Connecticut and lately a tutor in Yale College, a recent emigrant to Georgia, who thus divided the vote of that state, and prevented a decision which would in all probability have broken up the convention. His state was the last to vote, and the house was hushed in anxious expectation, when this brave and wise young man yielded his private conviction to what he saw to be the paramount necessity of keeping the convention together. All honour to his memory!
The moral effect of the tie vote was in favour of the Connecticut compromise; for no one could doubt that the little states, New Hampshire and Rhode Island, had they been represented in the division, would have voted upon that side. The matter was referred to a committee as impartially constituted as possible, with Elbridge Gerry as chairman; and On the 5th of July, after a recess of three days, the committee reported in favour of the compromise. Fresh objections on the part of the large states were now offered by Wilson and Gouverneur Morris, and gloom again overhung the convention. Gerry said that, while he did not fully approve of the compromise, he had nevertheless supported it, because he felt sure that if nothing were done war and confusion must ensue, the old confederation being already virtually at an end. George Masonobserved that "it could not be more inconvenient for any gentleman to remain absent from his private affairs than it was for him; but he would bury his bones in that city rather than expose his country to the consequences of a dissolution of the convention." Mason's subsequent behaviour was hardly in keeping with the promise of this brave speech, and in Gerry we shall observe like inconsistency. At present a timely speech from Madison soothed the troubled waters; but it was only after eleven days of somewhat more tranquil debate that the compromise was adopted on the 16th of July. Even then it was but narrowly secured. The ayes were Connecticut, New Jersey, Delaware, Maryland, and North Carolina,—five states; the noes were Pennsylvania, Virginia, South Carolina, and Georgia,—four states; Gerry and Strong against King and Gorham divided the vote of Massachusetts, which was thus lost. New York, for reasons presently to be stated, was absent. It is accordingly to Elbridge Gerry and Caleb Strong that posterity are indebted for here preventing a tie, and thus bringing the vexed question to a happy issue.
According to the compromise secured with so much difficulty, it was arranged that in the lower house population was to be represented, and in the upper house the states, each of which, without regard to size, was forever to be entitled to two senators. In the lower house there was to be one representative for every 40,000 inhabitants, but at Washington's suggestion the number was changed to 30,000, so as to increase the house, which then seemed likely to be too small in numbers. Someone suggested that with the growth of population that rate would make an unwieldy house within a hundred and fifty years from that time, whereat Gorham of Massachusetts laughed to scorn the idea that any system of government they could devise in that room could possibly last a hundred and fifty years. The difficulty has been surmounted by enlarging from time to time the basis of representation. It now seemed inadvisable that the senators should be chosen by the lower house out of persons nominated by the state legislatures; and it was accordingly decided that they should be not merely nominated, but elected, by the state legislatures. Thus the Senate was made quite independent of the lower house. At the same time, the senators were to vote as individuals, and thus the old practice of voting by states, except in certain peculiar emergencies, was finally done away with.
It was a decisive victory for Madison's scheme.
Irreconcilables go home.
It is seldom, if ever, that a political compromise leaves things evenly balanced. Almost every such arrangement, when once set working, weighs down the scales decidedly to the one side or the other. The Connecticut compromise was really a decisive victory for Madison and his party, although it modified the Virginia plan so considerably. They could well afford to defer to the fears and prejudices of the smaller states in the structure of the Senate, for by securing a lower house, which represented the American people, and not the American states, they won the whole battle in so far as the question of radically reforming the government wasconcerned. As soon as the foundation was thus laid for a government which should act directly upon individuals, it obviously became necessary to abandon the articles of confederation, and work out a new constitution in all its details. The plan, as now reported, omitted the obnoxious adjective "national," and spoke of thefederallegislature andfederalcourts. But to the men who were still blindly wedded to the old confederation this soothing change of phraseology did not conceal their defeat. On the very day that the compromise was favourably reported by the committee, Yates and Lansing quit the convention in disgust, and went home to New York. After the departure of these uncongenial colleagues, Hamilton might have acted with power, had he not known too well that the sentiment of his state did not support him. As a mere individual he could do but little, and accordingly he went home for a while to attend to pressing business, returning just in time to take part in the closing scenes. His share in the work of framing the Federal Constitution was very small. About the time that Hamilton returned, Luther Martin, whose wrath had waxed hotter every day, as he saw power after power extended to the federal government, at length gave way and went back to Maryland, vowing that he would have nothing more to do with such high-handed proceedings.
While the Connecticut compromise thus scattered a few scintillations of discontent, and relieved the convention of some of its most discordant elements, its general effect was wonderfullyharmonizing. The men who had opposed the Virginia plan only through their dread of the larger states were now more than conciliated. The concession of equal representation in the Senate turned out to have been a master stroke of diplomacy. As soon as the little states were assured of an equal share in the control of one of the two central legislative bodies, they suddenly forgot their scruples about thoroughly overhauling the government, and none were readier than they to intrust extensive powers to the new Congress. Paterson of New Jersey, the fiercest opponent of the Virginia plan, became from that time forth to the end of his life the most devoted of Federalists.
Other antagonisms; vague dread of the future west.
Antagonism between slave states and free states.
That first step which proverbially gives the most trouble had now been fairly taken. But other compromises were needed before the work of construction could properly be carried out. As the antagonism between great and small states disappeared from the scene, other antagonisms appeared. It is worth noting that just for a moment there was revealed a glimmering of jealousy and dread on the part of the eastern states toward those of which the foundations were laid in the northwestern territory. Many people in New England feared that their children would be drawn westward in such numbers as to create immense states beyond the Ohio; and thus it was foreseen that the relative political weight of New England in the future would be diminished. To a certain extent this prediction has been justified by events, but Roger Sherman rightly maintained that it afforded no just grounds for dread.King and Gerry introduced a most illiberal and mischievous motion, that the total number of representatives from new states must never be allowed to exceed the total number from the original thirteen. Such an arrangement, which would surely have been enough to create that antagonism between east and west which it sought to forestall and avoid, was supported by Massachusetts and Connecticut, with Delaware and Maryland; but it was defeated by the combination of New Jersey with the four states south of Maryland. The ground was thus cleared for a very different kind of sectional antagonism,—that which, as Madison truly said, would prove the most deep-seated and enduring of all,—the antagonism between north and south. The first great struggle between the pro-slavery and anti-slavery parties began in the Federal Convention, and it resulted in the first two of the long series of compromises by which the irrepressible conflict was postponed until the north had waxed strong enough to confront the dreaded spectre of secession, and, summoning all its energies in one stupendous effort, exorcise it forever. From this moment down to 1865 we shall continually be made to realize how the American people had entered into the shadow of the coming Civil War before they had fairly emerged from that of the Revolution; and as we pass from scene to scene of the solemn story, we shall learn how to be forever grateful for the sudden and final clearing of the air wrought by that frightful storm which men not yet old can still so well remember.
The first compromise related to the distribution of representatives between north and south. Was representation in the lower house of Congress to be proportioned to wealth, or to population; and if the latter, were all the inhabitants, or only all the free inhabitants, to be counted? It was soon agreed that wealth was difficult to reckon and population easy to count; and to an extent sufficient for all ordinary purposes, population might serve as an index of wealth. A state with 500,000 inhabitants would be in most cases richer than one with 400,000. In those days, when cities were few and small, this was approximately true. In our day it is not at all true. A state with large commercial and manufacturing cities is sure to be much richer than a state in which the population is chiefly rural. The population of Massachusetts is somewhat smaller than that of Indiana; but her aggregate wealth is more than double that of Indiana. Disparities like this, which do not trouble us to-day, would have troubled the Federal Convention. We no longer think it desirable to give political representation to wealth, or to anything but persons. We have become thoroughly democratic, but our great-grandfathers had not. To them it seemed quite essential that wealth should be represented as well as persons; but they got over the main difficulty easily, because under the economic conditions of that time population could serve roughly as an index to wealth, and it was much easier to count noses than to assess the value of farms and stock.
Were slaves to be reckoned as persons or as chattels?
But now there was in all the southern states,and in most of the northern, a peculiar species of collective existence, which might be described either as wealth or as population. As human beings the slaves might be described as population, but in the eye of the law they were chattels. In the northern states slavery was rapidly disappearing, and the property in negroes was so small as to be hardly worth considering; while south of Mason and Dixon's line this peculiar kind of property was the chief wealth of the states. But clearly, in apportioning representation, in sharing political power in the federal assembly, the same rule should have been applied impartially to all the states. At this point, Pierce Butler and Cotesworth Pinckney of South Carolina insisted that slaves were part of the population, and as such must be counted in ascertaining the basis of representation. A fierce and complicated dispute ensued. The South Carolina proposal suggested a uniform rule, but it was one that would scarcely alter the political weight of the north, while it would vastly increase the weight of the south; and it would increase it most in just the quarter where slavery was most deeply rooted. The power of South Carolina, as a member of the Union, would be doubled by such a measure. Hence the northern delegates maintained that slaves, as chattels, ought no more to be reckoned as part of the population than houses or ships. "Has a man in Virginia," exclaimed Paterson, "a number of votes in proportion to the number of his slaves? And if negroes are not represented in the states to which they belong, why should theybe represented in the general government?... If a meeting of the people were to take place in a slave state, would the slaves vote? They would not. Why then should they be represented in a federal government?" "I can never agree," said Gouverneur Morris, "to give such encouragement to the slave-trade as would be given by allowing the southern states a representation for their negroes.... I would sooner submit myself to a tax for paying for all the negroes in the United States than saddle posterity with such a constitution."
The three fifths compromise; a genuine English solution, if ever there was one.
The attitude taken by Virginia was that of peace-maker. On the one hand, such men as Washington, Madison, and Mason, who were earnestly hoping to see their own state soon freed from the curse of slavery, could not fail to perceive that if Virginia were to gain an increase of political weight from the existence of that institution, the difficulty of getting the state legislature to abolish it would be enhanced. But on the other hand, they saw that South Carolina was inexorable, and that her refusal to adopt the Constitution for this reason would certainly carry Georgia with her, and probably North Carolina, also. Even had South Carolina alone been involved, it was not simply a question of forming a Union which should either include her or leave her out in the cold. The case was much more complicated than that. It was really doubtful if, without the cordial assistance of South Carolina, a Union could be formed at all. A Federal Constitution had not only to be framed, but it had to be presented to the thirteen states for adoption. It was by nomeans clear that enough states would ratify it to enable the experiment of the new government to go into operation. New York and Rhode Island were known to be bitterly opposed to it; Massachusetts could not be counted on as sure; to add South Carolina to this list would be to endanger everything. The event justified this caution. We shall hereafter see that it was absolutely necessary to satisfy South Carolina, and that but for her ratification, coming just at the moment when it did, the work of the Federal Convention would probably have been done in vain. It was a clear perception of the wonderful complication of interests involved in the final appeal to the people that induced the Virginia statesmen to take the lead in a compromise. Four years before, in 1783, when Congress was endeavouring to apportion the quotas of revenue to be required of the several states, a similar dispute had arisen. If taxation were to be distributed according to population, it made a great difference whether slaves were to be counted as population or not. If slaves were to be counted, the southern states would have to pay more than their equitable share into the federal treasury; if slaves were not to be counted, it was argued at the north that they would be paying less than their equitable share. Consequently, at that time the north had been inclined to maintain that the slaves were population, while the south had preferred to regard them as chattels. Thus we see that in politics, as well as in algebra, it makes all the difference in the world whether you start withplusor withminus. On that occasion Madison had offered asuccessful compromise, in which a slave figured as three fifths of a freeman; and Rutledge of South Carolina, who was now present in the convention, had supported the measure. Madison now proposed the same method of getting over the difficulty about representation, and his compromise was adopted. It was agreed that in counting population, whether for direct taxation or for representation in the lower house of Congress, five slaves should be reckoned as three individuals.
In other words, it was the best solution attainable under the circumstances.
All this was thoroughly illogical, of course; it left the question whether slaves are population or chattels for theorizers to wrangle over, and for future events to decide. It was easy for James Wilson to show that there was neither rhyme nor reason in it: but he subscribed to it, nevertheless, just as the northern abolitionists, Rufus King and Gouverneur Morris, joined with Washington and Madison, and with the pro-slavery Pinckneys, in subscribing to it, because they all believed that without such a compromise the Constitution would not be adopted; and in this there can be little doubt that they were right. The evil consequences were unquestionably very serious indeed. Henceforth, so long as slavery lasted, the vote of a southerner counted for more than the vote of a northerner; and just where negroes were most numerous the power of their masters became greatest. In South Carolina there soon came to be more blacks than whites, and the application of the rule therefore went far toward doubling the vote of South Carolina in the House of Representatives and inthe electoral college. Every five slaveholders down there were equal in political weight to not less than eight farmers or merchants in the north; and thus this troublesome state acquired a power of working mischief out of all proportion to her real size. At a later date the operation of the rule in Mississippi was similar; and in general it was just the most backward and barbarous parts of the Union that were thus favoured at the expense of the most civilized parts. Admitting all this, however, it remains undeniable that the Constitution saved us from anarchy; and there can be little doubt that slavery and every other remnant of barbarism in American society would have thriven far more lustily under a state of chronic anarchy than was possible under the Constitution. Four years of concentrated warfare, animated by an intense and lofty moral purpose, could not hurt the character or mar the fortunes of the people, like a century of aimless and miscellaneous squabbling over a host of petty local interests. The War of Secession was a terrible ordeal to pass through; but when one tries to picture what might have happened in this fair land without the work of the Federal Convention, the imagination stands aghast.
Compromise between New England and South Carolina as to the foreign slave-trade.
The second great compromise between northern and southern interests related to the abolition of the foreign slave-trade and the power of the federal government over commerce. All the states except South Carolina and Georgia wished to stop the importation of slaves; but the physicalconditions of rice and indigo culture exhausted the negroes so fast that these two states felt that their industries would be dried up at the very source if the importation of fresh negroes were to be stopped. Cotesworth Pinckney accordingly declared that South Carolina would consider a vote to abolish the slave-trade as simply a polite way of telling her that she was not wanted in the Union. On the other hand, the three New England states present in the convention had made up their minds that it would not do to allow the several states any longer to regulate commerce each according to its own whim. It was of vital importance that this power should be taken from the states and lodged in Congress; otherwise, the Union would soon be rent in pieces by commercial disputes. The policy of New York had thoroughly impressed this lesson upon all the neighbouring states. But none of the southern states were in favour of granting this power unreservedly to Congress. If a navigation act could be passed by a simple majority in Congress, it was feared that the New Englanders would get all the carrying trade into their own hands, and then charge ruinous freights for carrying rice, indigo, and tobacco to the north and to Europe. On this point, accordingly, the southern delegates acted as a unit in insisting that Congress should not be empowered to pass navigation acts, except by a two thirds vote of both houses. This would have tied the hands of the federal government most unfortunately; and the New Englanders, enlightened by their own interests, saw it to be so. Here were the materials ready for a compromise, or, as the stoutabolitionist, Gouverneur Morris, truly called it, a "bargain" between New England and the far south. New Hampshire, Massachusetts, and Connecticut consented to the prolonging of the foreign slave-trade for twenty years, or until 1808; and in return South Carolina and Georgia consented to the clause empowering Congress to pass navigation acts and otherwise regulate commerce by a simple majority of votes. At the same time, as a concession to rice and indigo, the New Englanders agreed that Congress should be forever prohibited from taxing exports; and thus one remnant of mediæval political economy was neatly swept away.
This last compromise seems to make the adhesion of Virginia doubtful.
This compromise was carried against the sturdy opposition of Virginia. The language of George Mason of Virginia is worth quoting, for it was such as Theodore Parker might have used. He called the slave-trade "this infernal traffic." "Slavery," said he, "discourages arts and manufactures. The poor despise labour when performed by slaves. They prevent the immigration of whites, who really strengthen and enrich a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities." But these prophetic words were powerless against the combination of New England with the far south. One thing was now made certain,—that the vastinfluence of Rutledge and the Pinckneys would be thrown unreservedly in behalf of the new Constitution. "I will confess," said Cotesworth Pinckney, "that I had prejudices against the eastern states before I came here, but I have found them as liberal and candid as any men whatever." But this compromise, which finally secured South Carolina and Georgia, made Virginia for the moment doubtful; for Mason and Randolph were so disgusted at the absolute power over commerce conceded to Congress that, when the Constitution was finished and engrossed on paper, they refused to sign it.
It is difficult to read this or any other episode in our history whereby negro slavery was extended and fostered without burning indignation. But this is not the proper mood for the historian, whose aim is to interpret men's actions by the circumstances of their time, in order to judge their motives correctly. In 1787 slavery was the cloud like unto a man's hand which portended a deluge, but those who could truly read the signs were few. From north to south, slavery had been slowly dying out for nearly fifty years. It had become extinct in Massachusetts, it was nearly so in all the other northern states, and it had just been forever prohibited in the national domain. In Maryland and Virginia there was a strong and growing party in favour of abolition. The movement had even gathered strength in North Carolina. Only the rice-swamps of the far south remained wedded to their idols. It was quite generally believed that slavery was destined speedily to expire, to giveplace to a better system of labour, without any great danger or disturbance; and this opinion was distinctly set forth by many delegates in the convention.[7]Even Charles Pinckney went so far as to express a hope that South Carolina, if not too much meddled with, would by and by voluntarily rank herself among the emancipating states; but his older cousin declared himself bound in candour to acknowledge that there was very little likelihood indeed of so desirable an event. Not even these South Carolinians ventured to defend slavery on principle. This belief in the moribund condition of slavery prevented the convention from realizing the actual effect of the concessions which were made. Scarcely any cotton was grown at that time, and none was sent to England. The industrial revolution about to be wrought by the inventions of Arkwright and Hargreaves, Cartwright and Watt and Whitney, could not be foreseen. Nor could it be foreseen that presently, when there should thus arise a great demand for slaves from Virginia as a breeding-ground, the abolitionistparty in that state would disappear, leaving her to join in the odious struggle for introducing slavery into the national domain. Though these things were so soon to happen, the wisest man in 1787 could not foresee them. The convention hoped that twenty years would see not only the end of the foreign slave-trade, but the restriction and diminution of slavery itself. It was in such a mood that they completed the compromise by recommending a tariff of ten dollars a head upon all negroes imported, while at the same time a clause was added for insuring the recovery of fugitive slaves, quite similar to the clause in the ordinance for the government of the northwestern territory.
The foundations of the Constitution were thus laid in compromise.
It was the three great compromises here described that laid the foundations of our Federal Constitution. The first compromise, by conceding equal representation to the states in the Senate, enlisted the small states in favour of the new scheme, and by establishing a national system of representation in the lower house, prepared the way for a government that could endure. This was Madison's great victory, secured by the aid of Sherman and Ellsworth, without which nothing could have been effected. The second compromise, at the cost of giving disproportionate weight to the slave states, gained their support for the more perfect union that was about to be formed. The third compromise, at the cost of postponing for twenty years the abolition of the foreign slave-trade, secured absolute free-trade between the states, with the surrender of all control over commerce into the handsof the federal government. After these steps had been taken, the most difficult and dangerous part of the road had been travelled; the remainder, though extremely important, was accomplished far more easily. It was mainly the task of building on the foundations already laid.
Powers granted to the federal government.
In the grants to the federal government of powers hitherto reserved to the several states, the diversity of opinion among the members of the convention was but slight compared to the profound antagonism which had been allayed by the three initial compromises. It was admitted, as a matter of course, that the federal government alone could coin money, fix the standard of weights and measures, establish post-offices and post-roads, and grant patents and copyrights. To it alone was naturally intrusted the whole business of war and of international relations. It could define and punish felonies committed on the high seas; it could maintain a navy and issue letters of marque and reprisal; it could support an army and provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions. But in relation to this question of the army and the militia there was some characteristic discussion. It was at first proposed that Congress should have the power "to subdue a rebellion in any state on the application of its legislature." The Shays rebellion was then fresh in the memory of all the delegates, and their arguments simply reflected the impression which that unpleasant affair had left upon them. Charles Pinckney, GouverneurMorris, and John Langdon wished to have the power given to Congress unconditionally, without waiting for an application from the legislature. But Gerry, who had been on the ground, spoke sturdily against such a needless infraction of state rights. He was utterly opposed, he said, to "letting loose the myrmidons of the United States on a state without its own consent. The states will be the best judges in such cases. More blood would have been spilt in Massachusetts in the late insurrection if the general authority had intermeddled." Ellsworth suggested that Congress should use its discretion only in cases where the legislature of the state could not meet; but Randolph forcibly replied that if Congress is to judge whether a state legislature can or cannot meet, the difficulty is in no wise surmounted. Gerry's view at last prevailed, and in accordance therewith it was decided that the federal power should guarantee to every state a republican form of government, and should protect each of them against invasion; and on application of the legislature, or of the executive (if the legislature could not be convened), it should protect them against domestic violence. This arrangement did not fully provide against such an emergency as that of rival and hostile executives in the same state, as under the so-called "carpet-bag" governments which followed after the War of Secession, but it was doubtless as sound a provision as any general constitution could make.
The federal government was further empowered to borrow money on the credit of the United States; and it was declared that all debts contracted andengagements entered into before the adoption of this constitution should be as valid against the United States under this constitution as under the confederation. There was to be no repudiation or readjustment of debts on the ground of inability to pay. Congress was further empowered to establish a uniform rule of naturalization and a uniform law of bankruptcy. But it was prohibited from passing bills of attainder orex post factolaws, or suspending the writ ofhabeas corpus, except under the stress of rebellion or invasion. It was provided that all duties, imposts, or excises should be uniform throughout the United States. The federal government could not give preference to one state over another in its commercial regulations. It could not tax exports. It could not draw money from the treasury save by due process of appropriation, and all bills relating to the raising of revenue must originate in the lower house, which directly represented the people. Congress was empowered to admit new states into the Union, but it was not allowed to interfere with the territorial areas of states already existing without the express consent of the local legislatures. To insure the independence of the federal government, it was provided that senators and representatives should be paid out of the federal treasury, and not by their respective states, as had been the case under the confederation. Except for such offences as treason, felony, or breach of the peace, they should be "privileged from arrest during their attendance, at the session of their respective houses, and in going to or returning from the same; and for anyspeech or debate in either house" they were not to be "questioned in any other place." It was further provided that a territory not exceeding ten miles square should be ceded to the United States, and set apart as the site of a federal city, in which the general government should ever after hold its meetings, erect its buildings, and exercise exclusive jurisdiction. During the past four years the Continental Congress had skipped about from Philadelphia to Princeton, to Annapolis, to Trenton, to New York, until it had become a laughing-stock, and the newspapers were full of squibs about it. Verily, said one facetious editor, the Lord shall make this government like unto a wheel, and keep it rolling back and forth betwixt Dan and Beersheba, and grant it no rest this side of Jordan. This inconvenience was now to be remedied. Congress was hereafter to have a federal police force at its disposal, and was never more to be reduced to the humiliation of a fruitless appeal to the protecting arm of a state government, as at Philadelphia in the summer of 1783. Furthermore, the Continental Congress had of late years commanded so little respect, and had offered so few temptations to able men in quest of political distinction, that its meetings were often attended by no more than eight or ten members. It was actually on the point of dying a natural death through sheer lack of public interest in it. To prevent any possible continuance of such a disgraceful state of things, it was agreed that the Federal Congress should be "authorized to compel the attendance of absent members, in such manner and under such penaltiesas each house may provide." Had the political life of the country continued to go on as under the confederation, it is very doubtful whether such a provision as this would have remedied the evil. But the new Federal Congress, drawing its life directly from the people, was destined to afford far greater opportunities for a political career than were afforded by the feeble body of delegates which preceded it; and a penal clause, compelling members to attend its meetings, was hardly needed under the new circumstances which arose.
Powers denied to the states.
Emphatic condemnation of paper money.
While the powers of the federal government were thus carefully defined, at the same time several powers were expressly denied to the states. No state was allowed, without explicit authority from Congress, to lay any tonnage or custom-house duties, "keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delays." The following clause provided against a recurrence of some of the worst evils which had been felt under the "league of friendship:" "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder,ex post factolaw, or law impairing the obligation of contracts; or grant any title of nobility." Henceforth there was to be no repetition of such disgraceful scenes as had lately been witnessed inRhode Island. So far as the state legislatures were concerned, paper money was to be ruled out forever. But how was it with the federal government? By the articles of confederation the United States were allowed to issue bills of credit, and make them a tender in payment of debts. In the Federal Convention the committee of detail suggested that this permission might remain under the new constitution; but the suggestion was almost unanimously condemned. All the ablest men in the convention spoke emphatically against it. Gouverneur Morris urged that the federal government, no less than the state governments, should be expressly prohibited from issuing bills of credit, or in any wise making its promissory notes a legal tender. He went over the history of the past ten years; he called attention to the obstinacy with which the wretched device had been resorted to again and again, after its evils had been thrust before everybody's eyes; and he proved himself a true prophet when he said that if the United States should ever again have a great war to conduct, people would have forgotten all about these things, and would call for fresh issues of inconvertible paper, with similar disastrous results. Now was the time to stop it once for all. "Yes," echoed Roger Sherman, "this is the favourable crisis for crushing paper money." "This is the time," said his colleague, Ellsworth, "to shut and bar the door against paper money, which can in no case be necessary. Give the government credit, and other resources will offer. The power may do harm, never good."There was no way, he added, in which powerful friends could so soon be gained for the new constitution as by withholding this power from the government. James Wilson took the same view. "It will have the most salutary influence on the credit of the United States," said he, "to remove the possibility of paper money." "Rather than grant the power to Congress," said John Langdon, "I would reject the whole plan." "The words which grant this power," said George Read of Delaware, "if not struck out, will be as alarming as the mark of the Beast, in the Apocalypse." On none of the subjects that came up for discussion during that summer was the convention more nearly unanimous than in its condemnation of paper money. The only delegate who ventured to speak in its favour was Mercer of Maryland. What Hamilton would have said, if he had been present that day, we may judge from his vigorous words published some time before. The power to emit an inconvertible paper as a sign of value ought never hereafter to be used; for in its very nature, said he, it is "pregnant with abuses, and liable to be made the engine of imposition and fraud, holding out temptations equally pernicious to the integrity of government and to the morals of the people." Paterson called it "sanctifying iniquity by law." The same views were entertained by Washington and Madison. There were a few delegates, however, who thought it unsafe to fetter Congress absolutely. To use Luther Martin's expression, they did not set themselves up to be "wise beyond every event." George Mason said he "had a mortal hatred to papermoney, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. The late war," he thought, "could not have been carried on had such a prohibition existed." Randolph spoke to the same effect. It was finally decided, by the vote of nine states against New Jersey and Maryland, that the power to issue inconvertible paper should not be granted to the federal government. An express prohibition, such as had been adopted for the separate states, was thought unnecessary. It was supposed that it was enough to withhold the power, since the federal government would not venture to exercise it unless expressly permitted in the Constitution. "Thus," says Madison, in his narrative of the proceedings, "the pretext for a paper currency, and particularly for making the bills a tender, either for public or private debts, was cut off." Nothing could be more clearly expressed than this. As Mr. Justice Field observes, in his able dissenting opinion in the recent case of Juilliardvs.Greenman, "if there be anything in the history of the Constitution which can be established with moral certainty, it is that the framers of that instrument intended to prohibit the issue of legal-tender notes both by the general government and by the states, and thus prevent interference with the contracts of private parties." Such has been the opinion of our ablest constitutional jurists, Marshall, Webster, Story, Curtis, and Nelson. There can be little doubt that, according to all sound principles of interpretation, the Legal Tender Act of 1862 was passed in flagrant violation of the Constitution. CouldEllsworth and Morris, Langdon and Madison, have foreseen the possibility of such extraordinary judgments as have lately emanated from the Supreme Court of the United States, they would doubtless have insisted upon the express prohibition, instead of leaving it to posterity to root out the plague, as it will apparently some time have to do, by the cumbrous process of an amendment to the Constitution.
The work of the convention, as thus far considered, related to the legislative department of the new government. While these discussions were going on, much attention had been paid, from time to time, to the characteristics of the proposed federal executive. The debates on this question, though long kept up, were far less acrimonious than the debates on representation and the power of Congress over trade, because here there was no obvious clashing of local interests. But for this very reason the convention had no longer so clear a chart to steer by. On the question of the slave-trade, the Pinckneys knew accurately just what South Carolina wanted, how much it would do to claim, and how far it would be necessary to yield. As to the regulation of commerce by a bare majority of votes in Congress, King and Sherman on the one hand, Mason and Randolph on the other, were able to pursue a thoroughly definite course of action in behalf of what were supposed to be the special interests of New England or of Virginia. Consequently, the debates kept close to the point; the controversy was keen, and sometimes, as we have seen, angry.
Debates as to the federal executive.
It was very different with the question as to the federal executive. Upon this point the discussions were guided rather by general speculations as to what would be most likely to work well, and accordingly they wandered far and wide. Some of the delegates seemed to think we should sooner or later come to adopt a hereditary monarchy, and that the chief thing to be done was to postpone the event as long as possible. Many wild ideas were broached: such, for example, as a triple-headed executive, to represent the eastern, middle, and southern states, somewhat as associated Roman emperors at times administered affairs in the different portions of an undivided empire. The Virginia plan had not stated whether its proposed executive was to be single or plural, because the Virginia delegates could not agree. Madison wished it to be single, to insure greater efficiency, but to Randolph and Mason a tyranny seemed to lurk in such an arrangement. When James Wilson and Charles Pinckney suggested that the executive power should be intrusted into the hands of one man, a profound silence fell upon the convention. No one spoke for several minutes, until Washington, from the chair, asked if he should put the question. Franklin then got up, and said it was an interesting subject, and he should like to hear what the members had to say; and so the ball was set rolling. Rutledge said there was no need of their being so shy. A man might frankly express his opinions, and afterwards change them if he saw good reason for so doing. For his part, he was in favour of vesting the executive power in asingle person, to secure efficiency of administration and concentration of responsibility; but he would not give him the power to declare war and make peace. Sherman then made the far-reaching suggestion, that the executive magistracy was really "nothing more than an institution for carrying the will of the legislature into effect; that the person or persons ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society. As they were the best judges of the business which ought to be done by the executive department, ... he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more, as experience might dictate." It would greatly have astonished the convention had they been told that this suggestion of Sherman's was a move in the very same line of development which the British government had been following for more than half a century; yet such, as we shall presently see, was the case. Had this point been understood then as we understand it now, the proceedings of the convention could not have failed to be profoundly affected by it. As it was, the suggestion did not receive due attention, and the stream of discussion was turned into a very different channel. Wilson argued powerfully in favour of a single chief magistrate, and this view finally prevailed.
There should be a president, but how should he be elected.
After it had been decided that there should be one man set in so high a position, there was endless discussion as to whether he should be elected by the people or by Congress, and whether heshould serve for one, or two, or three, or four, or ten, or fifteen years. "Better call it twenty," said Rufus King, sarcastically; "it is the average reign of princes." Hamilton and Gouverneur Morris would have had him chosen for life, subject to removal for misbehaviour; but the preference for a short term of service was soon manifest. As to the method of election, opinions oscillated back and forth for several weeks. Wilson said "he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say, however, at least, that in theory he was for an election by the people. Experience, particularly in New York and Massachusetts, showed that an election of the first magistrate by the people at large was both a convenient and a successful mode. The objects of choice in such cases must be persons whose merits have general notoriety." Mason, Rutledge, and Strong agreed with Sherman that the executive should be chosen by the legislature; but Washington, Madison, Gerry, and Gouverneur Morris strongly disapproved of this. Morris argued that an election by the national legislature would be the work of intrigue and corruption, like the election of the king of Poland by a diet of nobles; but Mason declared, on the other hand, that "to refer the choice of a proper character for a chief magistrate to the people would be as unnatural as to refer a trial of colours to a blind man." A decision was first reached against an election by Congress, because it was thought that if the chief magistrateshould prove himself thoroughly competent he ought to be reëligible; but if reëligible he would be exposed to the temptation of truckling to the most powerful party or cabal in Congress, in order to secure his reëlection. It did not occur to any one to suggest that under ordinary circumstances the executive ought to follow the policy of the most powerful party in Congress, and that he might at the same time preserve all needful independence by being clothed with the power of dissolving Congress and making an appeal to the people in a new election. It is interesting to consider what might have come of such a suggestion, following upon the heels of that made by Roger Sherman. As we shall presently see, it would have immeasurably simplified the machinery of our government, besides making the executive what it ought to be, the arm of the legislature, instead of a separate and coördinate power. Upon this point the minds of nearly all the members were so far under the sway of an incorrect theory that such an idea occurred to none of them. It was decided that the chief magistrate ought to be reëligible, and therefore should not be elected by Congress.