and fortunes to the Government of the United States. They promised to protect Congress “in whatever way our services may be required, whether in resisting Foreign Invasion or in quelling intestine Tumults.” That the National Government of the United States of America should be offered protection by a small New Jersey village is indicative of the progress which nationality had thus far made. Sentiment would in time demand a permanent, independent home. Notwithstanding the prevalent financial depression, small tendency toward economy was manifest among the people or its officials. As long as credit held out, extravagance would prevail. The war had been successfully closed, political freedom had been won, and individual ease and affluence presumably secured. Short-sighted fashion viewed her immediate gratification as the concomitant of independence. Even the members of Congress were not exempt from temptation. A Rhode Island delegate reported from Congress sitting at Annapolis to the governor of his State:
“The horse races were attended here the week before last, and are all over, as are also the balls, routs, fandangoes, and plays. I assure you there has been a merry Winter in this place, according, at least, to accounts for I have seen but little of their diversions. I did not even look upon the horse races, although they were to be seen from the windows in the back room of the State House: nor have I attended a single play, although the theatre has been open twice a week the chief part of the Winter, and the playhouse adjoins the house where I lodge.”
Despite this virtuous conduct he did not escape a challenge sent by a fellow-delegate from North Carolina and another from a Virginia delegate. He promptly laid both communications before Congress and was further ostracised.
The Congress was a close corporation. The public was not admitted to its sessions, the debates were never published, and the proceedings rarely appeared in the public prints. Its adjournment of both time and place was so frequent and the beginning of new sessions so delayed that news concerning it rarely found a place in the newspapers. This was in marked contrast with its early history, when the assembling of delegates at Philadelphia was described in great detail for those days. Internal dissensions marked the sessions, as indicated by the experience of Howell, of Rhode Island, described by himself above. Members bore their obligations lightly. It was said that at one time when a delegation of Indians arrived at Princeton to make a treaty, a member left for Philadelphia to be married, thus breaking the quorum, and almost precipitating an Indian war.
It is worthy of note that this experience with an executive-legislative- judicial combination of National Government was sufficient to last for all time. Amidst the many changes suggested for the Constitution of the United States since it has been in effect, none has ever been proposed which would hand over the powers of the president to a Congress. Even Jefferson, alarmed by the growth of the executive authority before 1800, never suggested a return to the method whereby the whole administration was at the mercy of a quorum of Congress. The Confederate States in 1861, exasperated into secession by the abuse of the central power, retained the tripartite form in the Government which they planned. Posterity learns by reading the lessons of history.
In the light of a later survey, one may discover many additional defects in the ill-devised Articles of Confederation. Madison once summed up their vices in the failure of the States to comply with the constitutional requirements, in State encroachments of Federal authority, in State violations of national law and treaties, in States trespassing on the rights of each other, in want of concerted action, in a lack of national guarantee against internal violence, in a want of coercive power in the National Government and the omission of the ratification of the Articles by the people. To these he added the multiplicity, the mutability, and the injustice of many of the State laws. Jefferson, separated by his residence at the court of France from actual contact with the worst days of the Confederation, thought the remaining States had a right to coerce a recalcitrant member “by a naval force, as being easy, less dangerous to liberty, and less likely to produce bloodshed.” Yet a suggestion in 1781 for an amendment, giving power to Congress to employ force in compelling States to obey the Articles, met with no favour.
Monroe thought that the Articles were practicable and, with a few alterations, the best plan that could be devised. Hamilton, on the contrary, regarded them as hopeless. Even before they were adopted, he predicted a speedy failure. They were “neither fit for war nor peace,” he declared. “They show chiefly a want of power in Congress.” Washington attributed the defects made in framing the Government to too good an opinion of human nature. “Experience has taught us,” he said, “that men will not adopt and carry into execution measures the best calculated for their own good, without the intervention of a coercive power.” He declared that requisitions made upon the States by the central power became a perfect nullity when thirteen sovereign, independent, disunited States were in the habit of discussing and refusing compliance with them at their option.
“To vest legislative, judicial and executive powers in one and the same body of men and that, too, in a body daily changing its members can never three great departments of sovereignty should be for ever separated and so distributed as to serve as checks on each other.”
He would even go farther in giving power to the Central Government. “As to the separate Legislatures, I would have them considered with relation to the Confederacy in the same light in which counties stand to the State of which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government.” Hamilton shared with Jay a willingness to take such liberties with local rights to secure a more effective National Government.
Such sentiment among public men should have brought about a speedy amendment of the defective parts of the Articles. But, as Washington once said, the people were not yet sufficiently misled. Attempt after attempt was made to secure the necessary unanimous consent to an amendment. Congress begged the States to give over to it the collection of an impost or duty for a limited number of years or for a limited per cent.; to give to it authority to regulate foreign vessels in American ports; and to refrain from levying discriminating duties among themselves. The unanimous consent required by the Articles to make any amendment blocked these and all other proposed reforms. Sometimes twelve States would agree, but before the thirteenth could be won over, another would withdraw its consent. On one occasion, when Rhode Island alone held out, her delegates in Congress wrote to the governor of the State that their “reasonable and firm stand against the all-grasping hand of power in the case of duties had saved the United States!” Connecticut protested that such an addition to the functions of Congress as the collection of an impost would at one stroke vest that body with the power of the sword and the purse, and leave nothing of the individual States but an empty name. Others argued that with 320 million acres of land, which would bring an average of at least one dollar an acre, the General Government needed no other source of revenue. Unanimous consent to an amendment could never be secured. This was the lesson taught by the attempts.
Aside from the difficulties arising from the defects of the Confederation experiment, the disorders in the national body were simply reflections of the turbulent spirit prevalent at the time. Suddenly emerged from the restraining hand of a mother country, misinterpreting the meaning of independence, confounding liberty with license, having lost the law-abiding sense in the treatment of the Tories, grown only too accustomed to the pleasures of mob law, the people were passing through the reassembling period which always follows a civil war. Peace is the normal condition of a people; war is the abnormal. Restraint, taxation, and obedience, it was supposed, had passed away with royalty and kingly prerogative. “Taxes and relaxed government agree but ill,” observed the laconic Jay. From South Carolina, Edward Rutledge wrote to him, “It is really very curious to observe how the people of this world are made the dupes of a word. ‘Liberty’ is the motto; every attempt to restrain licentiousness or give efficacy to government is charged audaciously on the real advocates of freedom as an attack on liberty.”
Visionists indulged their hopes of universal happiness. The rebellion which Captain Daniel Shays, officer in the late Revolutionary army, headed in Massachusetts was aimed directly at closing the courts and preventing the issuing of writs to sell mortgaged farms. But Knox wrote Washington that the creed of the insurgents was that the property of the United States had been saved from Britain by the exertions of all the people and therefore ought to be the common property of all; and that they were determined to annihilate all debts, public and private, and to have agrarian laws, which could be easily effected by the means of unfunded paper money; and that this money should be a legal tender in all cases whatever. The madness had spread to New Hampshire, Connecticut, and Rhode Island, according to Knox, embracing a total of twelve or fifteen thousand “desperate and unprincipled men.” Wild-eyed enthusiasts in Rhode Island secured the passage of an “iron-clad oath” to the effect that paper money was as good as gold or silver coin–“compelling people to embrace the doctrine of political transubstantiation of paper into gold and silver,” as Jay put it. The militia had to be called out in New Hampshire to disperse a mob besieging the State Legislature at Exeter. “The mob clamoured,” said a contemporary, “some for paper money, some equal distribution of property, some annihilation of debts, some rebate of all taxes, and all clamoured against law and government.” The disorder spread to Virginia. “In several counties the prisons and court houses and clerks’ offices have been wilfully burnt. In Green Briar, the course of justice has been mutinously stopped and associations are entered into against the payment of taxes,” wrote Madison to Jefferson in France.
Neither those who caused these troubles, nor those who wept over them, as did Mrs. John Adams in France when news of Shays’s Rebellion reached her, could foresee the blessings which would follow; that these eight years of individualism were to form an argument for nationalism to be handed down by intuition to future generations. At the time it seemed that nothing but a miracle could save the Union. “Our affairs seem to lead to some crisis, some revolution–something I cannot foresee or conjecture–I am uneasy and apprehensive; more so than during the war.” Jay was never given to exaggeration of thought or expression; he must have been deeply impressed to write those words to Washington. “What a triumph for the advocates of despotism to find that we are incapable of governing ourselves,” replied the equally conservative farmer of Mt. Vernon, “and that systems founded on the basis of equal liberty are merely ideal and fallacious.” To Jefferson in France, Washington confessed that the General Government, if it could be called a government, was shaken to its foundation, and that unless a remedy were soon applied anarchy would inevitably ensue. “The question whether it be possible and worth while to preserve the union of the States must be speedily decided some way or other.” said Madison. “If some strong props are not applied, it will quickly tumble to the ground.” He thought he detected a propensity to return to monarchy in some leading minds; but he thought that “the bulk of the people would probably prefer the lesser evil of a partition of the union into three more practicable and energetic governments.” Monroe, always inclined to be suspicious of the Northern section, was “certain” that conferences were held in New York between New Englanders and New Yorkers upon the subject of the separation of the States east of the Hudson and their erection into a separate government.
Franklin, appearing in the midst of these disorders from his nine years’ residence in France, felt the necessity of counteracting the despairing feeling among the friends of America in Europe and of checking the rejoicing among her enemies. He, therefore, filled his letters with descriptions of American prosperity, crops, prices, and happiness. “In short,” he wrote, “all among us may be happy, who have happy dispositions, such being necessary to happiness even in Paradise.” At the same time, acting in his new station as president of the State of Pennsylvania, he was endeavouring to arrest “a number of disorderly people” who had collected near the line separating Pennsylvania and New York. “They are impatient of regular government,” he wrote in seeking the co-operation of the governor of New York, “and seize upon and presume to dispose of lands contrary to and in defiance of the laws. Their number is recruited daily by vagabonds from all quarters.” The disorder arose from the long-standing controversy between Pennsylvania and Connecticut over possession of the Wyoming valley–a dispute which the Federal Government had been unable to settle.
The general public had long since lost respect for the National Government and its Congress. Even Washington referred to it as the half-starved, limping Government, that appears always moving upon crutches and tottering at every step. The chief difficulty was not to ascertain the remedies needed, but how to apply them. As early as 1780, Hamilton had thought Congress had the right to reassume the powers of sovereignty it had appropriated with the silent consent of the States during the pressing times of the war; or, if the application must be external, that the people might meet in a convention of delegates empowered and instructed to conclude a new and effective federation. Few were ready to go as far as the impetuous Hamilton in thus virtually overthrowing the “Articles of perpetual union” which were legally binding although inefficient. To amend them according to their own provisions would be legitimate if it could be accomplished.
[Illustration: SIGNATURES OF DELEGATES TO ANNAPOLIS CONVENTION. Hamilton, Reed, Dickinson, Randolph, and Madison were the most prominent members of this abortive meeting, which led eventually to the Philadelphia Convention.]
This was considered by the majority of people the proper method; but when the experiment was tried at Annapolis in 1786 of a meeting of commissioners to devise a uniform regulation of trade and to report such an amendment to their States for ratification, only twelve delegates could be gotten together representing five States. Even the State of Maryland, in which the meeting was held, failed to send a representation. Each of the delinquent States had an excuse. The commissioners who did go to Annapolis, headed by Hamilton, Dickinson, and Madison, could only issue an appeal for another meeting of delegates from the several States the following year in the more central city of Philadelphia, empowered to consider not only the commercial troubles but to “devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”
It can scarcely be said that the failure at Annapolis was either a surprise or a disappointment, because few had expected success. “The expedient is no doubt liable to objections,” said Madison, one of the Virginia delegates, “and will probably miscarry. I think, however, it is better than nothing.” The object was unfortunately limited to considering the commercial friction between the States and to regulating their foreign relations. The conviction had become general that only an extended amendment of the frame of National Government could correct the difficulties in the commercial functions and in many other needed particulars. The thought that the proposed convention, if the proposition should be generally taken up, would include such a revision of the Articles of Confederation, served also to soften the blow of the Annapolis failure.
CHAPTER V
REFORMING THE NATIONAL GOVERNMENT
The suggestion, emanating from the unsuccessful gathering at Annapolis, that a convention of delegates be called from the several States to meet at Philadelphia the following year to devise means for rendering the National Government adequate to its task, was supported most admirably by the condition of the times. The Shays Rebellion in Massachusetts, its support in the neighbouring States, and the disorder in Virginia and New Jersey, were moving arguments for immediate action. Even Washington was forced to admit that the people were at last sufficiently misled. The National Government, helpless to invade a sovereign State to suppress domestic insurrection, was compelled to finesse in taking some steps to mobilise the militia by imagining an outbreak of Indians in Massachusetts.
Led by the alarming situation, Congress, with unusual dispatch, took up the Annapolis suggestion within five months after its receipt. But the feeling that the initiative should come from the Congress itself rather than from an irregular convention led to the substitution of a motion from the Massachusetts delegates in Congress that a convention of delegates should be held at Philadelphia on the second Monday of the following May “for the sole and express purpose of revising the Articles of Confederation” and reporting its suggestions to Congress and the several State Legislatures.
During the spring of 1787, State after State took up the idea of a convention of the people to correct the errors in the national frame. With rare discrimination, they chose, through their State Legislatures, their leading men as delegates. All hope became centred in this apparently last resort. The convention “will either recover us from our present embarrassments or complete our ruin,” said Monroe. That radical changes were necessary, many felt assured. Madison likened the Government at this time to a ship which Congress kept from sinking by standing constantly at the pumps instead of stopping the leaks which endangered her. He began to talk about “a new system” before the convention assembled. In sending to Washington an outline study of all prior confederated governments, he wrote, “Radical attempts, although unsuccessful, will at least justify the authors of them.”
Such sentiments were found to prevail generally among the delegates when, on May 25, 1787, a majority of the States was represented and sessions begun in the Independence Hall in the city of Philadelphia. Within five days it was decided to cast aside the deficient Articles, to exceed instructions, and to frame a new National Government with separate legislative, judiciary, and executive functions. To put new wine into old bottles was felt to be useless. No small task confronted the convention in carrying out this resolution. Independence and the other steps thus far leading toward nationality had been taken, as George Mason, of Virginia, said, under a certain enthusiasm which inspired and supported its advocates; but to sit down calmly to consider a project which might bring happiness or misery to millions yet unborn was an action, which, he confessed, absorbed and in a measure suspended the human understanding. Robert Morris, a delegate from Pennsylvania, begged his sons in France to offer a prayer for the success of the meeting since so much of their future happiness depended upon it.
The lack of information on the work of the convention, which sat from May 25 to September 17, 1787, is frequently deplored. The deficiency is due not to indifference on the part of those concerned, but largely to the lack of information given out to the public at the time and since. In apologising to Jefferson for not sending a full account of the proceedings during the sessions, Madison said: “It was thought expedient, in order to secure unbiassed discussion within doors, and to prevent misconceptions and misconstructions without, to establish some rules of caution.” These rules, adopted early in the proceedings, forbade the inspection of the minutes by any one not a member, prohibited the copying of any part of them, and enjoined the members against disclosing anything said in the sessions. Dr. Manasseh Cutler, who visited Philadelphia during the summer, went to the State House, but found “sentries planted without and within–to prevent any person from approaching near–who appear to be very alert in the performance of their duty.” When he went to pay his respects to Dr. Franklin, a member of the convention from Pennsylvania, the philosopher showed him a curiosity in the shape of a two-headed snake and fell to speculating upon what it would do if, on meeting the stem of a bush, the heads should choose to go one on each side of it. “He was then going to mention,” wrote Cutler in his journal, “a humorous matter that had that day taken place in convention, in consequence of his comparing the snake to America; but the secrecy of the convention matters was suggested to him, which stopped him.”
[Illustration: MANASSEH CUTLER]
This secrecy was felt to be binding perpetually by many of the members. The secretary of the convention, Major Jackson, who came to Philadelphia as private secretary to General Washington, kept the official minutes. This book, by one of the final motions of the convention, was entrusted to Washington, who had presided so conscientiously over the sessions that he did not allow himself even the privilege of debating. In 1796, he deposited it among the public archives. Until the year 1837, these minutes, with a few letters submitted by some of the seceding delegates justifying their action, and the gleanings from eighty-odd private letters written by members of the convention, constituted all public knowledge of the details of the meeting. But in the year mentioned above, Madison’s papers were purchased by the National Government, and among them was found a number of little home-made books containing his priceless “Notes on the Convention.” In the introductory pages, Madison tells how he carried out his determination to preserve a record of the debates for the benefit of posterity.
“I chose a seat,” he says, “in front of the presiding member, with the other members on my right and left hands. In this favourable position for hearing all that passed, I noted, in terms legible and in abbreviations and marks intelligible to myself, what was read from the Chair or spoken by the members; and, losing not a moment unnecessarily between the adjournment and re-assembling of the convention, I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files.”
The changes made from day to day in the drafts of the Constitution, as recorded in the minutes, are cleared up by the light of Madison’s notes and become a series of compromises. They were concessions made by superior to inferior factions, or sacrifices made by one section to satisfy and quiet another. That the equal State representation in the Continental Congress, for instance, had been one of the most pernicious parts of the Confederation machinery no one doubted. The practice had been inaugurated in the first Continental Congress, as the minutes under Sept. 6, 1774, explain, because the relative importance of the colonies represented could not be determined at the time. It was continued by default. But the arrangement bore no respect to proportional representation. New Hampshire, Rhode Island, New Jersey, Delaware, Maryland, South Carolina, and Georgia could combine and make a majority of the States and yet contain not one-third of the people. New York and Connecticut might be added, making nine of the thirteen States, but representing less than one-half the total population.
Notwithstanding this inconsistency in the old method, so strong was the fear of the smaller States that their large neighbours would absorb or oppress them, that they took a decided stand in the convention against all propositions to change to proportional representation. The Delaware representatives were authorised to withdraw rather than submit to any arrangement depriving the State of an equal vote with the other States. On the other hand, the large States, especially Virginia, New York, and Massachusetts, insisted upon changing to representation based on wealth or population. As a way out of the deadlock, after weeks of debate, two branches of Congress were determined upon, in one of which membership and voting should be proportionate. Franklin then proposed as a compromise that in one branch all bills for revenue should originate and in the other branch the States should have equal vote. This adjustment between the large and small States was considered the grand compromise, and its acceptance was a matter for common rejoicing.
The solution of this problem immediately raised another. What was meant by “population,” which had been substituted for wealth as a basis of apportioning delegates in the popular branch? Did it include slaves? The Continental Congress had long been accustomed in assessing the expenses of the war to add to the quotas of the States a sum equal to three-fifths of the number of slaves in each, on the ground that the labour of five slaves was equivalent to that of three free men. This proportion was now taken both for determining representatives in Congress and for assessing direct taxes. The States which continued to hold slaves would consequently have the benefits of three-fifths of their slaves represented by additional congressmen; but they must bear three-fifths additional of a direct tax, whenever one might be levied by the National Government.
The questionable value of slave labour had already divided the Southern States into two economic classes. Delaware, Maryland, and Virginia, because of the exhausting effects of tobacco upon the soil, had attempted to restrict its cultivation by forbidding more slaves to be brought in. The two Carolinas and Georgia, requiring fresh slave labour for their rice and indigo fields, would not consent to any diminution of the supply. A compromise was at last effected in the convention which permitted the importation of new slaves into the United States for the coming twenty years. This was done by the votes of the New England States, where the slave-trading vessels were generally built, added to those from the three Southern States. Against these were New Jersey, Pennsylvania, Delaware, and Virginia. For some reason, the Maryland delegates voted with the majority to keep the trade open. This compromise was strongly opposed by Gouverneur Morris, a Northern man, who confessed that he would sooner submit himself to a tax for buying all the negroes in the United States than saddle posterity with such a slavery constitution, and by Madison, a Southerner, who declared that these twenty years would bring as much mischief as an unlimited trade could produce. In accord with the practice of the old Congress, the delegates decided to eliminate the word “slave” from the Constitution, lest it might cause offence and beget opposition toward the new government they were about to propose. Milder terms, like “such persons” or “persons legally held to service or labour,” were substituted.
Many other adjustments were necessary to settle the Continental differences. By one of these, the nation was given full control of commerce. By another, the matter of choosing a chief executive was entrusted not to the people directly, because, as was said, they would be likely to be misled by designing men; nor to the national Congress, because of the inequality of the Senate and House representation; nor yet to the State Legislatures, because of the unequal sizes of the States; but to a set of electors to be chosen by the States, a kind of substitute for these various plans. The term of the presidential office was, after many debates, fixed at four years, although an urgent minority wanted him to serve seven years and not be eligible for a second term. In very truth it may be said that the entire document is made up of a series of compromises.
The twenty-three resolutions offered by Governor Randolph, of Virginia, are commonly considered as forming the groundwork of the Constitution. With them were incorporated apparently six provisions taken from the plan devised in a conference of the small States and offered by Paterson, of New Jersey, together with twenty suggestions emanating from an individual member, Pinckney, of South Carolina. Even the Virginia resolutions, although commonly ascribed to Madison and winning for him the title, “Father of the Constitution,” are modestly ascribed by him to the series of conferences held by the Virginia delegates during the ten days they waited for a quorum. “The resolutions,” said he later, “were the result of a consultation among the deputies of the State; the whole number, seven, being present. Mr. Randolph was made the organ of the occasion, being the governor of the State, of distinguished talents, and in the habit of public speaking.”
Turning over the pages of Madison’s “Notes,” one may follow through committee and general session, the slow evolution of the Constitution of the United States. The eager hands of the experienced workers turned over the materials of old forms, rejecting parts hitherto tried and found wanting, welding together familiar pieces brought from monarchical or colonial precedent, and constructing a machine noted for practicability rather than for novelty. They were forced to use careful workmanship because of the great variety of opinions. They were hindered constantly from rash action by inherited prejudices and climatic differences. And they were conscious at the end of having wrought, not perfectly, but as well as conditions would permit.
Experience was the fountain from which the Constitution-makers drew their “inspiration.” A novel creation, as a certain narrow provincialism in the United States is sometimes fond of claiming for the Constitution, would have been an assembling of theoretical machinery, of untried experiments, which could not have met the shock of being suddenly put into motion to replace a broken down system. It could not have won back, solely on its merits, the confidence of the discouraged people. If it had been “the most wonderful work ever struck off at a given time by the brain and purpose of man,” it could scarcely have withstood the vicissitudes of a growing people for over a century, with amendment in four particulars only. More experiments and less experience might have required the adoption of more of the fifteen hundred amendments which have been proposed to the Constitution in these hundred years. Experience is a safe ground upon which to build. Gouverneur Morris demolished a vast amount of eulogy when he wrote to a correspondent in France that some boasted the Constitution as a work from Heaven, while others gave it a less righteous origin. “I have many reasons to believe,” said this matter-of-fact man, who bore such a large part in recasting the phraseology of the document, “that it was the work of plain, honest men.”
As matter is not created in any of its forms, but simply assumes new combinations by its own laws or under the guidance of man, so apparently new models in statecraft may be resolved by analysis into old ideas in new combinations. The American Constitution is the English system of government adapted to American soil through the intervening colonial and state governments. The president is the king through the royal governor, but shorn of his prerogative, descent, and perpetuity in the transition. The Senate is the House of Lords, with its permanency changed into a long tenure of office by passing through the colonial council. To the same intermediate State is due the power of appointment to office and of treaty-making which the Senate shares with the executive, thus reviving the relation of the privy council, chosen from the House of Lords, to the King. The House of Representatives is copied directly from the popular assembly of the colonial government, which in turn was modelled after the British Commons. The right of originating bills of revenue, which the Representatives possess, was preserved in many a contest between colonial assemblies and royal governors. It is the birthright of Englishmen, dating from the Petition of Right granted by Charles I., which substituted fixed taxes for forced loans and gifts. The national supreme judiciary, the most novel of the three divisions of the National Government, embodies in its appellate principles the Privy Council of England, to which all colonists could appeal, and the later admiralty committees of the Continental Congress, to which all cases of prizes seized in the war might be referred. The theory of a state court of last resort had already found place in nine of the State constitutions and the convention simply placed the capstone of a national Supreme Court on the top of the column. Some parts of the colonial government were rejected as unfitted to the national frame. An advisory council for the President, such as nearly every colony gave to its governor, was desired by many but finally omitted. The present Cabinet really takes its place.
In like manner, it is possible to find British and colonial precedent, tried and proved, for almost every provision of the National Government. The ruling class at the time it was framed was composed of English and Scotch, trained in British forms of government. The Dutch in New York and the Germans of Pennsylvania took almost no part in the Philadelphia Convention. It is as useless to deny an English parentage for the American Constitution as to deny that there were English colonies in America. So did the heirs of the ages avoid the mistakes of the past by seeking the results of the law of the survival of the fittest. They form a strong contrast with another people, less fitted by inheritance for self-government, who were at about the same time entering upon the task of constitution-making. “It is somewhat singular that we should be engaged in the same project for the same purpose,” Franklin wrote to Chastellux, referring to the Assembly of Notables in France and the Constitutional Convention in Philadelphia. “I hope both assemblies will be blessed with success and that their deliberations and councils may promote the happiness of both nations.”
It so chanced that the very day the convention in Philadelphia had a quorum, the Assembly in France, initiatory of the French Revolution, was dismissed. Both had met in the spirit of reform; but to what different ends did the two movements eventually come! The Americans had in no case attempted the impossible; had not hoped for the immediate dawn of the millennium; had not even attempted to put into practice the loftiest sentiments of the Declaration of Independence; and had carefully distinguished between the State as an agency for political and for social rights. Very similar moderate sentiments on government had been carried to France by Lafayette, the Lameths, Viscount de Noailles, the Prince de Broglie, and others who came to America to take part in the Revolutionary War. Their influence produced the moderate French constitution of 1791, which shows a marked resemblance to the American frame. That these principles were suited to the American people is demonstrated by the rapidity with which peace and order were established under them. That they were ill qualified for the French people was shown by the early overthrow of the constitution of 1791.
The French constitution of 1793 and those which followed bore little resemblance to the American frame. The influence which the American Revolution exerted upon the French Revolution had passed, and the two movements bore no further resemblance to each other. The Americans had been content with a rebellion against authority and a revolution which substituted old forms, or combinations of forms, with new officials. The French revolutionists were not satisfied until they had tried to change all existing forms and institutions. They would annihilate society, the church, Christianity, even Deity itself. Precedent became a crime. The accepted system of weights and measures, the calendar–nothing was too well tried to compete with innovation. In America, the rights of man were eventually tacked on to the tail of the American Constitution as an afterthought to conciliate the timorous, “a tub thrown to the whale,” as the first ten amendments have been called. In France, the rights of man overshadowed the working part of the constitution, delaying essential details by their incorporation, and ultimately furnishing a pretext for interfering with other peoples. When once the Americans had secured a constitution, they desired nothing so much as to be left alone to work out their own destiny. When once the French had evolved a system, with true propagandist spirit they wished to foist it on others. “With cannon for treaties and millions of freemen as ambassadors,” they demanded that the feet of all nations should keep step with the march of what they deemed liberty. Hamilton, as usual, had proven a seer when he wrote to Lafayette in France at the very beginning of the French movement, “I fear much the final success of the attempt, for the fate of those I esteem who are engaged in it, and for the danger in case of success, of innovations greater than will consist with the felicity of your nation.”
The people of America seemed to wait with bated breath the conclusion of the deliberations of the wise men of the nation met in convention at Philadelphia. Rebellion stood with hesitating step, and warring factions tacitly declared a truce. The crisis was at hand.
“The names of the members will satisfy you that the states have been serious in this matter,” wrote Madison to Jefferson from Philadelphia. “The attendance of General Washington is a proof of the light in which he regards it. The whole community is big with expectation and there can be no doubt that the result will in some way or other have a powerful effect on our destiny.”
Even stronger conviction of the critical situation may be gleaned from the private correspondence of the other members, bound by the pledge of secrecy from describing the turbulent scenes attending the sessions. Daily had they seen the difficulty of reconciling the inherited animosity between the Puritan and the Cavalier transplanted to America; between the Established Church and the Dissenter; between commercial and agricultural interests; between a slave system and free labour; between an urban population, accustomed to abide by majority rule, and a rural people, bred to individual freedom and absolute home rule. They had to evolve a system satisfactory to people scattered through thirteen degrees of latitude, with climatic differences arising from a mean average temperature of forty degrees in the north and sixty degrees in the south. Such decentralising tendencies were met with nowhere in Europe save under the strong hand of a monarch in Russia. These climatic differences produced the frugal Northerner, who had to provide in advance for the winter season, and the hospitable planter of the South, in whom prodigality was induced by the very lavishness of nature about him. It was not strange that by contrast, and seen through the haze of distance, the frugality of the North should appear to be avarice to the South; while the hospitality upon which that section prided itself should seem to be prodigality in Northern eyes. These bask differences could be reconciled by compromise, and that only temporarily. Washington had summed up the situation when he declared that there must be reciprocity or no union; that the whole matter could be reduced to a single question–whether it was best for the States to unite.
Although Washington, as presiding officer, took no part in the debates, his influence in favour of effective government must have had weight in the convention. Madison and Gouverneur Morris bore the brunt of objections to a national system. Franklin, a victim of old age and ill health, was allowed to read his speeches from his seat. Hamilton pleaded for a more effective system early in the sessions, but his radical views undoubtedly militated against any plan he had to offer. Two of the most influential members from the Southern States, Randolph and Mason, of Virginia, refused to countenance the proceedings by their signatures to the document. Another member, Gerry, of Massachusetts, followed their example. Luther Martin, a prominent lawyer of Maryland, returned to his constituency to write a letter of protest against the assumption of power by the convention in framing a new government when called together solely for the purpose of correcting the old. Yates and Lansing, two of the three delegates from the prominent State of New York, went home for the same reason. The third, Alexander Hamilton, withdrew for a time in disgust because his efforts for an efficient central power produced apparently little results. The sessions had, for the most part, representatives from eleven States only, Rhode Island having failed to send delegates. Her refusal was caused by a conviction that the convention would recommend taking away from the States the power to issue money and to collect duties. Her fears proved true.
Outside the closed doors of the convention the public clamoured, declaring Star-Chamber sessions an insult to the American people. All kinds of rumours prevailed concerning the probable action of the convention. Some newspapers declared that three republics, an eastern, a middle, and a southern, had been agreed upon, under the conviction that so numerous a people and so large a territory could not be incorporated under one government. Still others passed the news that the plan of the royal electorate of Poland had been adopted, and the second son of George III., Bishop of Osnaburgh, had been chosen king of the United States. An unofficial denial of this rumour appeared in a Philadelphia paper. “We never once thought of a king,” it said. “Benny the Roofer” appeared in the prints in ridicule of Benjamin Franklin, who, it was said, was endeavouring to construct a roof over the entire United States.
At last the only body, which has ever been called together in the United States to consider a frame of national government, was ready to report and to adjourn. A new plan of government lay on the table signed by thirty-nine of the fifty-five men attending the convention. They admitted its defects, but agreed that it was the best frame that could be obtained at the time, and resolved to throw themselves on the indulgence of their constituents. As much was confessed in the explanatory and conciliatory circular, which they prepared to accompany the document to the Congress and thence, they hoped, to the States.
“Individuals entering society,” so the circular argued, “must give up a share of liberty to preserve the rest. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and, on the present occasion, this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular rights. The Constitution which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”
Here was the voice of compromise, and of that conciliatory spirit, which alone can make union possible. If the people at large would show the same indulgence toward each other, the experiment would be given a trial. Assuredly, the members of the convention set them a good example of toleration. “No man’s ideas,” said Hamilton, “are more remote from the plan than my own are known to be; but is it possible to deliberate between anarchy and convulsion on the one side and the chance of good to be expected from the plan on the other?” “I consent, sir, to this Constitution,” said the aged Franklin, in a paper read by his confrere, Wilson, “because I expect no better, and because I am not sure it is not the best.” He advised that opinions on the errors of the document should never be carried beyond the walls of the convention.
“If every one of us here,” said he, “in returning to our constituents, were to report the objections he has had to it, and endeavour to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favour among foreign nations as well as among ourselves, from our real or apparent unanimity.”
Gouverneur Morris confessed that the present plan had many objections, but, considering it the best that could be obtained, he would take it with all its faults. The moment it went forth, the great question, in his opinion, would be whether there should be a national government, or not, and a negative reply would mean a general anarchy.
Washington, after his return to Mt. Vernon, sent a copy of the document to Patrick Henry, saying, “I wish the Constitution, which is offered, had been more perfect; but I sincerely believe it is the best that could be obtained at this time.” The Revolutionary orator had refused to attend the convention as a delegate from Virginia. He preferred the Articles with their imperfections to an experiment. To Washington he replied that he could not bring his mind to accord with the proposed Constitution. He would prefer to bear the ills they had than fly to others that they knew not of. Harrison, a Virginia neighbour with whom Washington had also been associated since the Revolutionary times, replied to the General in acknowledging the receipt of a copy of the Constitution that he feared the remedy would be worse than the disease. Such sentiments were not confined to these Virginia statesmen. It was evident that the victory for the new government had been only half won in its formation and adoption by the convention. It had yet to be accepted by the Congress and to be adopted by nine of the States before going into effect. Great opportunity for a renewal of insurrection and faction would be offered by undue delay.
CHAPTER VI
ADOPTING A NATIONAL CONSTITUTION
The statesmen who had won the fight for a new form of national government in the Philadelphia Convention lost no time in following it up through the various stages leading practically to a _plebiscite_ of the people. Madison returned immediately to New York to resume his seat in Congress, where the first stand must be made. That body had been engaged during the summer with the Ordinance of 1787, and the question of the navigation of the lower Mississippi. It was feared that Richard Henry Lee, who had refused to be a delegate to the convention, might make the Congress hostile to the new plan, or delay it until after the fall meetings of the State Legislatures. Fortunately there was a quorum when Madison arrived from Philadelphia. Through his personal efforts and private letters from influential men, the Congress in little more than a week had accepted the report of the convention and transmitted it to the several State Legislatures for their consideration. The members of the Legislatures in each State were requested to call a popular convention to pass upon the new document, rather than to consider it themselves. The Legislature is created to make laws and not to judge of constitutions. The Articles had not observed this canon of political science, but had been adopted by the State Legislatures. Less haste and more regularity were to characterise the consideration of the Constitution.
During the nine months following the submission of the Constitution to the States, while the necessary nine ratifications were being obtained, hope and fear alternated in the minds of its friends. To Hamilton, success seemed so assured that he wished they had made the Constitution “higher toned.” Yet the struggle was likely to be arduous enough under existing conditions. Since the word “Federal” had by common usage been applied to the national in contradistinction to the State governments, the new frame was known as “A plan for a new Federal Government,” and those who favoured it styled themselves “Federalists.” Men were known as “warm Federalists” before the discussion was a month old. On the other hand, Richard Henry Lee had attacked the new idea under the pseudonym, “The Federal Farmer.” His use of the word was entirely consistent with the desire of the opposition to continue a federated instead of running the risk of a consolidated government. As Gerry, an Anti-Federalist, complained later, an injustice was done them by fastening upon them the word “Anti,” when they were in favour of retaining the Federal Government and the others wished to cast it aside and to establish a National Government. The Federalists, in the light of the present day, would be called “Unionists”; but, being largely city dwellers and having control of the presses, they were able to assume the less alarming name of “Federalist,” and to put upon their opponents the name “Anti-Federalist.”
[Illustration: COPY OF THE ARTICLES OF CONFEDERATION AND THE CONSTITUTION IN PARALLEL COLUMNS. The foot-notes show that it is an Anti-Federal print.]
The war between the Federalists and Anti-Federalists was waged chiefly in the public press. Sixteen editions of the Constitution in pamphlet form have survived to this day, in addition to those officially struck off. An edition appeared in London. Another was printed in Albany, New York, in the Dutch language. Pamphlets without number poured from the presses. Correspondents occupied columns in the newspapers. When Governor Clinton, of New York, opened his opposition batteries under the pen name of “Cato,” Hamilton replied vigorously in defence of the new proposition under the name “Caesar.” When George Mason addressed his fellow-citizens of Virginia in a pamphlet against the Constitution, he was answered by James Iredell as “Marcus.” In other publications, “Cassius,” “Agrippa,” “Sidney,” and “Civis” filled columns, while “Plain Dealer,” “A Columbian Patriot,” and “An American Citizen” withheld not their pens. Much of the rapid increase in the number of newspapers and the betterment of printing facilities in the United States near the close of the century may be attributed directly to these debates on the proposed Constitution. The religious controversial literature of colonial days had now been replaced by political composition.
Not only in the public press and in private letters did the Federalists further their cause, but they did not hesitate at more cogent arguments. When seventeen country members of the Pennsylvania Legislature ran from the Assembly in order to break the quorum and so prevent the call for a State convention to consider the Constitution, the remaining members brought back two of them by force. “When perceiving the other side to have an advantage, they play truant,” said Noah Webster, a New England pedagogue, who had gone to Philadelphia at this time to lecture and to sell his new _Grammatical Institute_. “An officer or a mob hunts the absconding members in all the streets and alleys in town.” To be held in their seats and counted as voting affirmatively, the recalcitrant members declared an outrage. The Federalists thought they deserved more punishment. When the State convention, thus called, met in Philadelphia, two of its members, Wilson and McKean, made such eloquent appeals for a trial of the new form that the auditors broke into applause. The Anti-Federalist papers said the incident was pre-arranged to influence the convention and reported that “the gallery was filled with a rabble, who shouted their applause; and these heroes of aristocracy were not ashamed, though modesty is their national virtue, to vindicate such a violation of decency.” The final vote of the Pennsylvania State Convention, forty-six to twenty-three in favour of the Constitution, was looked upon by the Federalists as a vindication of their actions. In the Maryland Convention, a majority of sixty-three refused to hear any compulsory amendments proposed by a minority of eleven, on the grounds that they had been instructed by their constituents to ratify or reject a constitution, not to make one.
The “Antis” soon found out, as “Antis” are wont to do, that opposing a popular movement was an ungrateful, as well as an unpleasant task. Pamphlets issued by the other side called them a junto of debtors, knaves, and worthless-moneyists. The Anti-Federalist members of the Massachusetts Convention complained that they were pointed out and abused upon the streets. They also charged that the moneyed interests of New York were trying to bribe the convention with large sums of money sent to Boston.
“These lawyers and men of learning and moneyed interests,” cried a country delegate in the Boston Convention, “that talk so finely and gloss over matters so smoothly to make us poor illiterate people swallow down the pill, expect to get into Congress themselves; they expect to be the managers of this Constitution and get all the power and the money into their own hands; and they will swallow up all of us little folk like the great Leviathan, Mr. President, yes, just as the whale swallowed up Jonah.”
When four hundred mechanics, or tradesmen, of Boston, in a set of resolutions, demanded a favourable vote on the Constitution, and when Paul Revere marshalled them at the Green Dragon tavern to shout for the new frame, the Anti-Federalists called out “Intimidation!” but the Federalists disclaimed such intention.
Concerted action usually wins over individualism. The Anti-Federalists showed no such capacity for united efforts as the Federalists displayed. For instance, Hamilton, with the aid of Madison and Jay, wrote a series of articles for the New York press, calculated to explain the new government, to enlighten the people, and to quiet their fears. Collected into the _Federalist_, they form the best commentary yet written on the Constitution. Copies of the numbers, as they appeared, were forwarded from city to city to be reprinted in Federal newspapers. Nothing was omitted likely to impress the people favourably. Impressive ceremonies marked the ratification in each State as the news was received. In Baltimore, a vessel, fifteen feet long, representing the new frame, fully equipped and rigged, was drawn on wheels through the streets, then launched on Chesapeake Bay, and navigated to Mt. Vernon, where Washington received it “as a specimen of American ingenuity.”
Even the muse of the Rev. Timothy Dwight was invoked to aid the Federal cause by begging that all petty views be lost in a national horizon. Some of his couplets run:
“Each party-view, each private good, disclaim, Each petty maxim, each colonial aim;
Let all Columbia’s weal your views expand A mighty system rule a mighty land;
Yourselves her genuine sons let Europe own Not the small agents of a paltry town.”
It was a unique warfare. Where a people of different inheritance might have appealed to arms, the appeal here was to intelligence, argument, and the ballot. For nine months the struggle went on among the citizens of the different States to determine whether they should abide by the National Government they had legally adopted seven years before, or whether they would exercise the right of peaceful revolution and cast it aside for another. It was a true revolutionary movement, a turning upside down, in comparison with which the Revolution of 1776 becomes a revolt against the King. Recognising the revolutionary action of annulling one frame of national government by adopting another, a wag wrote this stanza:
“Here, too, I saw some mighty pretty shows, A revolution, without blood or blows;
For as I understood the cunning elves, The people all revolted–from themselves!”
The opposition to a change in the national form of government, as shown in the debates in the various State conventions, was based upon expediency among the masses and constitutionality among the few. In the light of the dangers which have confronted the people during a century of experience, some of the objections to the Constitution seem ridiculous. But the objectors were sincere in their apprehensions, being just emerged from a despotic government, and jealous of their hard-earned liberty. It was the old story of individualism fearing to trust its welfare to the general body. That liberty is gained by entrusting liberty to an efficient government is a truism which it has taken many years of self-rule to demonstrate.
There was a general cry among the opposition that the convention had exceeded its powers in casting aside the Articles which it had been called to correct. In examining the details of the new frame, some deprecated the large number of Federal officers thus created, who would form a body independent of the States and fattening on the general treasury. Others feared the concentration of power in the President, who would have control of the army, the navy, and the treasury; others thought the number of terms he could serve should be restricted. Still others criticised the six years allowed a senator. The saying was general among the opposition that the individual had no protection from the General Government; no assurance that his property might not be seized by it, his worship interfered with, and himself robbed of all those privileges for which his English forebears had contended.
The keener spirits among the opposition looked above these details and saw a threatened consolidation of the Central Government. “Give me leave to inquire,” said Patrick Henry, in the Virginia Convention, “who authorised them to speak the language of ‘We, the people,’ instead of ‘We, the States’? States are the characteristics and the soul of a confederation.” “I stumble at the threshold,” said Samuel Adams, on first reading the document. “I meet with a national government, instead of a federal union of sovereign States.” Said a member of the first North Carolina Convention, “I am astonished that the servants of the Legislature of North Carolina should go to Philadelphia and, instead of speaking of the ‘State’ of North Carolina should speak of the ‘people.'” In the Massachusetts Convention it was declared that “We, the people,” created an actual consolidation of the States, and the moment it was adopted would mean the dissolution of the State governments.
A few advocates of the new Government did not hesitate to admit that it was intended to form an efficient government for the entire people of the United States, regardless of the States. One of the two must be superior. In the convention, Gouverneur Morris had made this laconic speech, “Mr. President, if the rod of Aaron do not swallow the rods of the magicians, the rods of the magicians will swallow the rod of Aaron.” However, the more politic endeavoured to quiet the fears of the people by explaining that “We, the people,” was simply the style or title of the new form; that the powers given to the Central Government were entirely national ones; that all the rest were reserved to the States; and that the people could easily change the Constitution by amending it if they experienced any danger at any time from the central authority.
These words of the preamble to the Constitution, so pregnant of future interpretation, were thus, from the beginning, a cause of alarm to a few minds. Patrick Henry seemed to feel presciently that the later theory of an indissoluble union would be based largely upon this phrase, and that the Civil War to preserve the Union would be justified by it. Yet its incorporation in the document in that form was due purely to an accident. The Virginia plan contained no preamble. Pinckney’s plan, as given by Madison, began, “We, the people of the States of New Hampshire, etc.” When the first rough draft of the Constitution had been put together by the Committee on Detail, during the eleventh week of the convention, and secretly printed for the use of the members, the preamble began, “We, the people of the States of New Hampshire,” etc. Six weeks later, the revised draft was reported with the preamble changed to “We, the people of the United States,” etc. What caused the change to be made? Chiefly because the blank designating the number of States required to put the new form into execution had been filled with the word “nine.” No one could tell which nine would ratify first and, therefore, no list of States could be put into the preamble. A phrase covering all the people of the United States was substituted. What slight chances give rise to arguments justifying the making of a nation!
[Illustration: FIRST DRAFT OF THE CONSTITUTION OF THE UNITED STATES. The form of the preamble in this draft is described in the text of this volume. It was printed for the benefit of the members of the Convention in making further changes.]
Two factors were potent in securing the final success of the new plan. One was the provision in the last clause by which the new frame could be amended easily. The unanimity which the Articles required in order to correct a mistake had taught a valuable lesson. Three-fourths was to be the maximum requirement hereafter. It is interesting to note that a unanimous vote has never been obtained on any amendment thus far made to the Constitution. The other favourable circumstance was the tacit understanding that Washington would consent to serve as the first President, guaranteeing the perpetuity of the Republic by his past record. His fidelity had been tested at the close of the Revolutionary War, when a devoted army might have made him a Julius Caesar or an Oliver Cromwell in the chaotic condition of affairs. That he had returned to his Virginia farm to become an active citizen was an assurance that he could now be trusted with the vast powers conferred on the chief executive under the new plan.
The State conventions were not slow to take advantage of the privilege of proposing amendments, and these the promoters were too wise to resist. Proposals to make amendments were non-committal and harmless where the motto was “Anything to get the new plan in operation.” Massachusetts wished nine additions made, South Carolina four, Virginia twenty, New Hampshire twelve, New York thirty-two, and North Carolina twenty-six. Of the 103 propositions submitted to the consideration of Congress by the conventions, many were duplicates. Only ten were destined to survive. At the time, they served as a machine of the gods to avert the dangerous proposition that another convention be held to draw up a second constitution embracing the desired changes.
No one can read the acts of ratification in which these proposed amendments were incorporated or added without being impressed by the fear of the States that they were hazarding their hard-earned liberties in this experiment. It is easy to make light of them in the successful experience of a hundred years. It is clear now that whatever precautions the States took would be swept aside by the hand of necessity, and that later generations would repudiate some of the principles laid down in their manifestos. It is useless to demand consistency in a growing body. How futile for Virginia and Rhode Island, for instance, to declare that all power granted under the Constitution proceeds from the people of the United States and that, whenever the same is perverted, it may be resumed by them! Being adopted in State conventions and voicing the sentiment of the people in these established groups, is it unlikely that they meant the people of the United States as grouped into the several States precisely as they had formed and were now adopting their Constitution? Yet a generation or two later, Virginia was to be told that she meant the people of the entire United States, regardless of State lines, and in this opinion the people of Rhode Island in that generation would join.
How useless for South Carolina to make as part of her ratification the precautionary statement that no part of the Constitution should ever be construed so that the States might be deprived of any power not expressly relinquished by them! How fruitless for New Hampshire to stipulate that all powers not expressly delegated by the Constitution should be reserved to the several States to be exercised by them! How profitless fate was to make the stipulations of New York that Congress should never lay any kind of excise except on ardent spirits, and that the clauses in the Constitution forbidding Congress to do certain things should not be construed into a permission to do anything except that which was named in the document! Time was soon to demonstrate the folly of attempting to place these barriers in the path of progress. Under such restrictions, the new Government would have been as helpless as the old, unless new powers had been added to it from time to time by the precarious method of amendment. Advancement must have been hindered constantly by waiting on the slow process of adding provisions to the Constitution. Such crises as the purchase of Louisiana, the suppression of domestic insurrection, and the adjustment of the national finances after the War of 1812 could never have been met because of constitutional limitations.
Several of the States incorporated in their acts of ratification a kind of political creed of the inalienable rights of the individual. Although not intended as amendments or even as conditions of ratification, they were supposed to be a kind of perpetual compact between the State and the nation. They were modelled after the Bill or Declaration of Rights in some of the State constitutions. Rhode Island, for instance, declared that “the rights aforesaid cannot be abridged or violated and that the explanations aforesaid are consistent with the said Constitution.” Time was to show in seasons of national aggrandisement, during the reconstruction period, for instance, how futile such State barriers would be in hedging about the national powers. These sticklers for individualism and fearing souls could not see that the central clearing-house, which the people of the respective States were creating, could not be confined to a few expressed powers; that unseen situations and sudden emergencies would call for action not specified; that to make a list of allowable acts in advance was simply an impossibility. In their alarm, they failed to see that the individuals of which the States were composed would come in contact more closely with local than with national affairs; that they would participate more frequently in State than in Federal Government; and that this very participation for the regulation of local affairs would perpetuate a fealty to the State which would guarantee its perpetuity within its proper sphere. But, at the time, many agreed with Lowndes, who predicted in the South Carolina Convention that despite all precautions the State powers under the Constitution would soon be confined to the regulation of ferries and roads.
All anxiety about ratification ceased on the second day of July, the anniversary of the motion for independence, when the favourable act of New Hampshire, the ninth State necessary, reached Congress. The matter of arranging for putting the new Government into motion was referred to a committee. In taking this action, the old Congress was sealing its death-warrant. It would cease to exist, and be replaced by two houses of Congress under the Constitution. It had served well its purpose. Called into life by the necessity of colonial co-operation in 1774, the Continental Congress had gradually assumed sufficient power to bring a great war to a successful conclusion. Deprived of much of this power under the Articles, circumscribed by the suspicious bounds of State sovereignty, the Congress had become a thing of contempt. Not a member was now present who had been among those assembled at the hall of the Carpenters’ Association in Philadelphia fourteen years before. Not a man now present was a signer of the Declaration of Independence.
Nevertheless the body assumed an unwonted activity in these, its last days. A quorum was had during several of the summer months of 1788. The business of settling accounts between the Confederation and the several States was actively carried on, and further arrangement was made for selling the public lands in the North-West Territory. The form of levying quotas upon the States, amounting to a million and a half dollars, was again gone through with. Since it was unlikely that these assessments would be paid, John Adams borrowed one million guilders in Holland for ten years with which to inaugurate the new Government.
A petition for statehood from the settlers in Kentucky, the second in the long list of additions to the Union, reached Congress, accompanied by the consent of Virginia to the severance of her western district. Since the time for the beginning of the new Government was so near at hand, the petition was returned with the suggestion that it be renewed after that event.
The principal item of domestic expenditure was found to be that for supporting the United States army of 595 officers and men scattered along the frontier. They were garrisoned in Fort Pitt, at the head of the Ohio River; Fort Franklin and Fort McIntosh, between Pitt and Lake Erie; Fort Harmar, at the mouth of the Muskingum; Fort Steuben, at the falls of the Ohio, now Louisville; and Fort Vincennes, on the Wabash, now in Indiana. Also a force consisting of an officer, one sergeant, and fifteen privates was stationed at West Point. To meet the expenses for these troops, and also those for Indians and pensions, there was available in the domestic treasury the sum total of $22,000.
The committee of Congress to whom had been given the arrangement for putting the new Government into motion found that the election of senators and representatives was left by the Constitution to the States; that the creation of the Federal judiciary belonged to the new Congress; and that only the measures necessary for the election of a President were left to them. They therefore set the first Wednesdays of the first three months in the following year for the three steps of appointing presidential electors, having them cast their ballots, and for commencing proceedings under the Constitution. These dates were adjusted to the meetings of the State Legislatures, as Madison explained to a correspondent. No objection was found to this arrangement of time, but the selection of a place in which to begin the new Government aroused the old sectional fear and avarice, and precipitated a two-months’ contest, during which New York, Philadelphia, Baltimore, Wilmington, Lancaster, and Annapolis were considered. “The present seat of Congress” was finally adopted largely through impossibility of agreeing on another.
[Illustration: LAST PAGE OF THE MINUTES OF THE OLD CONGRESS. Preserved in the archives of the Department of State. It shows that members appeared occasionally as late as March 2, two days before the new government was to be inaugurated; the printed journals differ, stating that members appeared until the first of November only.]
Having thus planned for its successor, having arranged the finances, the army, the post-office, the public land system, and other national affairs as best it could, the Continental or Confederation Congress slowly dwindled in membership until it lacked a quorum early in October, 1788. A few members attended at intervals until the beginning of the following March, when the thirty-nine foolscap volumes recording the birth of the United States were closed, to be deposited among the archives of the United States under the Constitution. A successor was now ready to undertake the task for which the Confederation had been found inadequate.
CHAPTER VII
BEGINNING AN EFFICIENT GOVERNMENT
In the manner of its formation and adoption the Constitution was the product of a confederation. In these respects, it was little in advance of the rejected Articles. Its strength lay in the possibilities of its administration. But as a document in 1789, it was the product of federated States. If all the people of the United States could have assembled and formed a constitution to go into effect immediately, or even if delegates, chosen by the people of the United States as a whole, had drawn up such a document, which had been adopted by the entire people or their delegates in a ratifying body, there would have been a national sovereignty wholly independent of the States from the beginning. Such a procedure was impossible–the very best reason why it was not attempted. A pure democracy is possible only among a small number of people living in a small State. For a large population and an extensive territory representative government must be substituted. If the idea of government in the British colonies in North America had been national instead of local from the beginning, the States would have disappeared under the Constitution, or have been kept only for selecting national representatives, and performing other national functions. An equipoise between the two could never have been reached. But fate had ordained otherwise. In a new land, the settlers naturally gathered into little groups for mutual protection. Collecting about some harbour or along some navigable waterway in the Northern colonies, or assembling from the plantations at the centre of the parish in the Southern colonies, the people instituted local government. Clusters of these units under home rule formed larger divisions, and, in this way, union came as an afterthought resulting from contiguity and intercourse. The States as colonies existed long before the Union. Individualism was born long before unity in America, and gained a prestige which aggregation has required nearly a century to overcome.
The ease with which the various States formed their first constitutions and the ease with which they corrected errors by substituting later frames, is an additional proof of their early efficiency. No State had as much difficulty as did the nation in reaching a workable basis. It is true that the national Congress first suggested State governments to the chaotic colonies, but they did not authorise them. The colonies looked to the nation for a uniform suggestion, but neither for sanction nor permission. Never for a moment did the members of the Continental Congress assume that they were working independently of their States, but considered themselves subordinate to the State assemblies. The States were always the last resort of Confederation days. The story of the United States is largely taken up with the struggle of the States to retain their early supremacy when that supremacy was menaced from time to time by new conditions.
Whatever destiny may have made of the later Union, whatever theories may now be indulged in concerning the abstract Union the fathers made in 1789, the concrete Union which was put into effect was the offspring of the States not only in the thoughts of the people, but it was even dependent upon them for aid in several particulars necessary for putting it into operation. Having no electoral machinery, the Union was compelled to ask the States to choose members of both branches of its Congress. In electing its chief executive, it was obliged to give the States sole charge of choosing electors for this purpose. A national election gradually came into existence because the Union took this control practically away from the States. The Federal Government was indebted to State agency for its first capitol, the Federal Hall, furnished it by the kindness of the City of New York. It had not a foot of soil independent of the States, State militia furnished the military escort for its President-elect, and a State governor, Clinton of New York, with his staff, gave him official welcome to the State and national capital combined. Even the oath given to the chief executive, an oath required by the national Constitution, was administered not by a national official, but by the chancellor of the State of New York.
An independent national government such as time has given us, and such as would be formed in the light of the present day, would not leave the method of choosing its presidential electors to the whims of the several States. At the time, no other method was possible. The State machinery was at hand and could be utilised. The national appliances had not yet been evolved. In some States the size of the precincts made voting well-nigh impossible. Residents of Luzerne County, Pennsylvania, must travel several hundred miles to the polls, according to Timothy Pickering. Although the Assembly of Virginia placed a fine upon every qualified voter who failed to perform his duty, and although the Federalists of Maryland offered a roasted ox at one polling-place to attract voters, it is estimated that not more than one-fourth the men entitled to vote availed themselves of the privilege. Many had been so recently enfranchised by the State constitutions that they did not appreciate the right. Independence having been won, the details of government failed to maintain civic zeal. In present-day elections, by contrast, as many as five-sixths of those qualified to vote at national elections avail themselves of the privilege.
It must also be noted that State qualifications for freemen determined who should vote in this first national election. In those States where the people voted, statistics show that only three men out of every hundred of population could vote in this first presidential election, where nowadays twenty men have that liberty. In some States, the people had no voice whatever in choosing the President, because the State Legislatures decided that they were the proper mediums to choose the presidential electors. The Constitution left the matter entirely in their hands. In some States, the people voted for electors in fixed districts; in other States they voted for a whole electoral ticket. This system of choosing a President through a set of electors, borrowed from the method of electing a German emperor, was far removed from democracy. It showed the distrust which the Constitution-makers felt in the intelligence and discrimination of the masses. Irregularity marked the elections generally. Two factions in the New York Legislature fell into a dispute over the manner in which Senators and electors should be chosen. It resulted in that State being deprived of participation in the first election and in the first session of the Senate. Before the next presidential election, Congress began to make regulations governing the States in their conduct of this important matter, an innovation which grew until it culminated in the election “force laws” of reconstruction days following the Civil War.
“The first Wednesday in March next shall be the time and the present seat of government the place for commencing proceedings under the said Constitution.” So accustomed had the people grown to delays in public affairs, that a strict compliance with these provisions of the old Congress would have been a surprise. The first Wednesday of March, 1789, fell upon the fourth day of the month. At noon of that day, when the members constituting the two branches of the first Congress under the Constitution assembled in the rooms arranged for their sessions in the reconstructed City Hall of New York, there was no quorum in either House. Since eleven States had adopted the new plan and each was entitled to two Senators, twelve members of that body would be necessary to constitute a quorum. But only eight were present. These sent out one circular letter after another to the delinquent members, begging their immediate attendance. The condition of the roads at that season of the year and the inadequate means of transportation can scarcely be imagined at present. Madison, because of poor roads between Montpelier and Baltimore, missed the stage and lost two whole days, as he complained. However, one by one the tardy Senators arrived, and on April 6th, over a month late, the Senate found itself with a quorum. Even then there were only two members present from States south of Pennsylvania. Having read their credentials of election, they proceeded to elect a presiding officer “for the sole purpose” of opening the votes cast by the electors for President and Vice-President of the United States. The latter, according to the new plan of government, would be their permanent presiding officer. The choice for the temporary office fell upon Senator Langdon, of New Hampshire, a member of the convention which had framed the Constitution.
On the 4th day of March, the new House of Representatives had only thirteen members present. The Constitution required that they should be chosen by the people in the different States. The State Legislatures were unable to monopolise the elections as they did the presidential elections in certain States. Yet the people took little interest in this first congressional election. Out of 3,200,000 people, probably not more than one hundred thousand voted. Until some count of the number of people could be taken to secure a proportionate representation, the Constitution had set an arbitrary number of sixty-five, apportioning them among the States by a guess at the respective populations. Rhode Island and North Carolina not being in the Union deducted six from this total, making thirty necessary for a quorum. Day after day, the incomplete House adjourned. New members arrived at intervals until the first day of April, when a quorum was had, just four weeks late.
As first formed, the House consisted of the following members: New Hampshire, 1; Massachusetts, 5; Connecticut, 5; New Jersey, 2; Pennsylvania, 6; Maryland, 2; Virginia, 8; South Carolina, 1. Other members arrived from time to time. More or less irregularity had marked the elections in the various States. A protest soon reached the House from citizens of New Jersey claiming that the four members from that State had not been legally elected. The polls had been kept open in one district for two weeks, until closed by a proclamation from the governor. From South Carolina came charges against a member that he had not been a citizen of the United States the required seven years at the time of his election. Although a native of South Carolina, he was being educated in Europe during the Revolutionary period and had returned to the State after the close of the war, but before the adoption of the national Constitution. Contested elections here find early precedents. In both cases the House declared the elections valid and the members entitled to their seats.
[Illustration: HEADING OF THE FIRST LAW PASSED UNDER THE CONSTITUTION.]
Although the delay of nearly a month in securing a quorum in the new Congress was not alarming, it was most unfortunate. Never had the National Government come so near abdicating in favour of the State governments. There had been no sessions of the old Congress for the past six months, although straggling members appeared from time to time. There was a national Board of the Treasury wrestling with the problem of home and foreign creditors, but confronted with an empty coffer. Jay was acting as Secretary of Foreign Affairs, and Knox was Secretary of War. There was positively no other evidence of “The United States of America” except an “army” composed of a few soldiers scattered along the frontier. Jefferson, Minister to France, wished a leave of absence, which Jay thought reasonable. “But, my dear sir,” he said, “there is no Congress sitting, nor have any of their servants authority to interfere. As soon as the President shall be in office, I will, without delay, communicate your letters to him.” Madison foresaw contentions, “first between federal and anti-federal parties, and then between northern and southern parties, which give an additional disagreeableness to the prospect.” John Adams pronounced the nation united in nothing save the choice of Washington.
After quorums were secured, new problems confronted this National Government, feeling its way without precedent. Only eleven States had come into the new agreement. The North Carolina Convention had adjourned without action, and Rhode Island had rejected the Constitution by a popular vote of 2708 to 232. Had a Congress representing eleven States the right, even if it had the power, to legislate for thirteen sovereign States? Many felt that important questions like amendments to the Constitution should be postponed until the United States were united in fact as well as in name. Even eleven States were insufficiently represented. Delaware had only one Senator and no Representative at hand. South Carolina had but one Senator present. The influential State of New York, the home of Hamilton and Jay, the place of meeting of the new Congress, was in the throes of a political “dead lock.”
There was also no precedent for the workings of two branches of the National Legislature. Some prophets of evil who recalled the difficulties in one House of the Continental Congress predicted a double portion of woe under the new arrangement. It must not be supposed that a bicameral system was entirely a novelty. The colonies generally had such a system and, on becoming States, had adopted, with one exception, that form. It was true, as many recalled, that contests had frequently arisen between the colonial council and the popular assembly, especially where the former was appointed by the colonial governor. It was scarcely to be hoped that all friction could be avoided between the two branches of the United States Congress. They possessed to a large extent joint powers, and yet had individual initiative and control. A further difference might arise from the variation of the constituency which they represented. The Senate was appointed by and represented the States in their sovereign capacity, as the House of Lords represented the pleasure of the British sovereign. The House of Representatives was dependent upon and represented the direct interests of the people, as did the Commons under the British Constitution.
The Senate had the advantage of the prestige of the colonial council. When the day arrived for opening the presidential ballots the Senate notified the House that it was ready, and the latter obediently mounted the stairs to the small Senate chamber, where the ballots were counted, disclosing a unanimous election for George Washington and a majority for John Adams. The Senate immediately despatched messengers to notify these men to attend and be inaugurated. This feeling of superiority on the part of the Senate was not diminished, as its members contemplated the power of ratifying treaties and confirming appointments which they shared with the Chief Executive, as well as the long tenure of office and permanent session with which the body had been endowed. Because of this executive function, the Senate followed the example of the Continental Congress, and refused to admit the public to hear any of its deliberations during the first five sessions. It then yielded to public opinion and opened its doors when acting in its legislative capacity, going into secret session only when exercising its executive powers. To counterbalance these extraordinary functions, the House had only the exclusive right of originating revenue bills.
The necessary connection of the two Houses was recognised at the very beginning of the sessions by the appointment of joint committees to prepare rules for conference on bills upon which the two bodies might differ; to arrange for the transmission of papers; to dispose of the papers of the old Congress; to arrange for the inauguration of the first President; and to provide for the election of chaplains. Many of these matters common to both were easily adjusted. Two chaplains of different denominations were to be appointed, one by each House, and they were to interchange weekly. In this way Congress hoped to avoid the ever-recurring fear that one sect might be patronised until it became the established church. But upon the apparently minor point of the manner of transmitting papers from one body to the other a difference arose. The joint committee reported to each House an elaborate method whereby the Senate should send a bill or message to the House by its secretary. This official was to make an obeisance on entering the House, and another on delivering the paper to the Speaker, a third after it had left his hands and a fourth as he left the room. When the House sent up a bill to the Senate, it was to be carried by two members, undoubtedly in imitation of the custom of members of the Commons carrying a bill to the Lords. Precisely as many bows and at corresponding places were demanded of these two members as the secretary of the Senate was required to make in the House. All messages except bills could be carried up by one member, who should make the four obeisances. As a return courtesy the entire Senate should rise when two members entered the room, or the President of the Senate only, in case one member appeared with a message.
This exhaustive ceremonial clearly gave such superior standing to the Senate that it was rejected by the House. Being recommitted to the joint committee, they reported a simple substitute whereby any message should be sent from either House to the other by “such persons as a sense of propriety in each House may determine to be proper.” The messenger was to be announced at the door and should communicate his message to the presiding officer. This in turn was rejected by the form-admiring Senate. Finally the Senate sent notice to the House that if their members should bring up a bill or message as originally provided, they would be received as first promised; but if they chose to send it by another agent he must hand the paper to the secretary of the Senate, who would deliver it to the President of the Senate. The House chose a messenger as their agent; the Senate soon followed the plain example; and thus a simple custom was inaugurated which has held to the present day.
The wisdom of providing some arrangement for a conference in case of disagreement between the two Houses was manifest several times in the first session. Conferences were held on no less than nine of the ninety-five measures passed. It is impossible, in the absence of reported debates, to ascertain the attitude of the Senate toward the other branch. Maclay, the garrulous Senator from Pennsylvania, whose diary is invaluable during these closed-door sessions, mentions several instances in which the Senate coerced the House by threatening to hold up appropriation bills. “It was a trial of skill in the way of starvation,” he declares. The temper of the House when contending for what it considered its prerogatives can be seen from the debates.
“I am an advocate for supporting the dignity of the House,” said a member from New York, debating a disagreement with the Senate, “and to me it appears somewhat inconsistent that we should change our sentiments in order to conform to the amendments of the Senate…. If we are to follow the Senate in all the alterations they propose, without hearing reasons to induce a change, our time in deliberation is taken up unnecessarily.”
On a similar occasion, when the tonnage bill was being worked out by compromise, a member from Delaware hoped that the House would not recede from its position, “otherwise it might be considered that the House was under the government of the Senate, and adopted their opinions without arguments being offered to convince their judgments.” A Virginia member “would rather lose any bill than have the doctrine established that this House must submit to the Senate; yet, if it was done in this instance, it would serve as a precedent in future decisions.” In this slow manner, and with frequent irritation, the two branches of the National Legislature adjusted themselves to each other and formed precedents which have held for a century. The first measure to pass both Houses, receive the President’s assent, and become a law, defined the oath which every officer of the National Government was required by the Constitution to take. It became a law within two months after quorums were obtained.
The relations of the two branches to the Executive were not so close and, therefore, more easily adjusted. No little credit is due to the very cool and conservative man who became the executive head of the revived nation. Even the journey of the President-elect from his home to the seat of government had been a continued ovation. It can be compared only with his progress to Cambridge nearly a score of years before to take command of the Revolutionary army. In both instances he was regarded as the deliverer of the country from a great peril. Possessed of probably the largest fortune in America, he could not be accused, as were many of his compatriots, of mercenary motives in his public actions. His freedom from personal ambition and selfish motive having been tested in the tempting days of the war, he could be relied upon by the people not to betray them in their extremity by any assumption of powers. Reputed to be a man of great self-control, almost cold-blooded in his self-guardedness, having dwelt far removed from the partisan strife pertaining naturally to populous centres, he would be careful in forming opinions, conservative in actions, and unlikely to yield to the influence of faction or partisanship. A moral man for that day, but neither a propagandist nor a zealot, he was unlikely to favour any sect or establishment of religion–a danger against which every possible precaution had been taken.
Even while the electors were being chosen and were holding their meetings in the several States, it was understood that Washington would undoubtedly be the choice for the first President. Indeed, before the Constitution had been fully formed, Hamilton and others were naming him. In the State conventions which considered the new form, speakers did not hesitate to predict his election. The assurance that the dreaded power would be first entrusted to his hands to form precedents persuaded many to try the change. John Adams, recently returned from representing his Government in Great Britain, and finding himself chosen to the second place, was said to be unable to comprehend how Washington’s military experience had fitted him for this civic duty. Yet it was simply the first of many instances in which the gratitude of the people, backed by innate hero-worship, has singled out a war hero for the highest civic honours. Hence it came about that the very unanimity of election, for which all had hoped, defeated the purpose of the framers of the Constitution to have an unbiassed selection made by the presidential electors. This, or a like cause, has thwarted the purpose in every succeeding election of a President.
[Illustration: FEDERAL HALL, NEW YORK CITY. Upon the balcony between the pillars of the second story Washington was inaugurated President, April 30, 1789. Congress sat in this building in 1789 and 1790.]
Considering the descent of the American people at that time, it is not surprising that the inauguration of the first President was copied largely from the inauguration of a British sovereign. Our fathers were not attempting to experiment with novelties of government, but to adapt tried methods to their needs. The trappings of royalty to be seen in an ancient kingdom were replaced in this Republic by a military display, significant of the means by which its birthright had been won. The royal procession from Buckingham Palace to the Abbey was reproduced in miniature in the escort of the President from the Osgood House, his temporary residence, to the Government chambers. The religious and civic rites observed at Westminster Abbey were here separated, the religious service being held at St. Paul’s Chapel and the civic in the little recess or gallery between two pillars which had been made by the architect in transforming the New York City Hall into the National Federal Hall. The oath was taken upon a copy of the Bible by both monarch and President. The shouts from the crowd in front of the Federal Hall in Wall Street which followed Chancellor Livingston’s cry of “Long live George Washington, President of the United States!” were no less sincere, although coming from fewer throats, than the cries of “Long live the King!” and “God save the King!” which proclaimed the homage of British subjects to their monarch. The cannon in old Fort George, down near the Battery, could greet a President as lustily as those in the Tower proclaimed a king.
But every departure from royal custom was in the direction of simplicity of detail. Instead of being surrounded by nobles and courtiers, the President was attended by the committees on inauguration from the Senate and House, by Vice-President Adams, Governor Clinton, and others. The coronation feast in the palace was republicanised into a dinner at the residence of Governor Clinton. The rich robes of the sovereign, to make which the resources of an empire were drawn upon, were transformed into a suit of ordinary clothing made entirely in America. Instead of being seated in an ancient chair endowed with kingly legend, the American President stood during the short ceremony. Instead of being administered by the Archbishop of Canterbury, the oath was given to him by the Chancellor of the State of New York. The fair and festivities which commonly ended the first day of a new monarch were changed into an illumination of the city of New York and a display of fireworks.
The ceremonies between the new President and the Congress bore an even closer resemblance to those accustomed to be seen at a coronation or upon the opening of a session of Parliament. The inauguration speech of the monarch took the shape of an inaugural address by the President, which confessed a lack of personal assurance and a reliance upon a Higher Power, called attention to the benefits of government, and begged the co-operation of all concerned in it. The speech from the throne at the opening of Parliament became a message to Congress at the opening of each session. Like the king’s speech, it was divided into a general address to both Houses, and a special message to each. The attention of the House of Representatives was called to various financial matters, as the English monarch had been compelled to do since the stormy Stuart period.
Early in Washington’s administration the Senate showed conclusively, by refusing to hear the Secretary of War explain an Indian treaty, that the Cabinet was not to have the British privilege of initiating legislation. Washington was compelled, consequently, to recommend to each branch of Congress in his opening address such matters as he thought demanded legislation. It is the only form of influencing Congress which has ever been given to the President, barring patronage. On these State occasions, when opening Congress, Washington was accustomed to ride down to the Federal Hall in the coach provided for him by Congress, with four instead of the two white horses usually driven, and outriders in advance as well as the two secretaries who rode habitually on horseback behind the coach. As was the custom in Parliament, a committee was appointed in each branch of Congress to draft a reply to the President’s address. In due time this was carried by the Senators in solemn procession, headed by Vice-President Adams, to Washington’s residence, where it was handed to him. The more democratic House of Representatives contented itself with presenting its reply to the President in a vacant room in the Federal building. To each of these replies Washington was accustomed to make a counter-reply, thanking the members for their courtesy and promising his continued efforts to secure the objects they suggested.
These forms and ceremonials, although copied originally from Britain, had been used in the inauguration of colonial governors and in the opening of colonial assemblies. They furnish a further proof that the American nation has been a thing of growth, an imitation of existing conditions until such time as originality could be developed or imitations transformed to meet the new conditions. Local forms furnished the models. They would be changed only as national ideals were developed. The fact that most of these European ceremonials were lopped off within twelve years shows how rapidly originality was developed.
During the first session Congress took up “the principal officer in each of the executive departments,” as authorised by the Constitution. It was understood that these would be about the same as had been developed during the preceding years, viz., Foreign Affairs, Treasury, and War. It was not foreseen that they would become in time a “Cabinet.” To these three departments Congress added a fourth, Justice, for which an attorney-general was appointed. He was considered a head of an executive department and ranked with the other three among the President’s advisers.
The wisdom of the framers of the Constitution in simply arranging outlines instead of filling in details was nowhere better shown than in the provisions for the national judiciary. Congress was bound only to establish “one superior court” and could add such inferior courts as necessity might demand from time to time. So essential was a national judiciary felt to be, that during the pressing business of the first session the United States was divided for this purpose into thirteen judicial districts, conforming generally to the eleven States in the Union, each to have a district court held by a Federal judge. These districts were then grouped into an eastern, a middle, and a southern circuit, in accord with the geographical grouping of the States. In these two circuit courts were to be held each year by one or more district judges and one or more justices of the Supreme Court. The latter, the final tribunal of appeal from these inferior courts, was to consist of a chief justice and five associate justices. Necessary officers, such as marshals and clerks, were given to these courts, rules were formulated for their procedure, and an act was passed at the next session defining crimes against the United States. A resident of any State was by these acts made the subject of a new sovereign,–the United States of America,–liable to be punished for treason committed not against his State, but against the nation; to be prosecuted for piracy on the seas; for counterfeiting money, altering records, committing perjury in the Federal courts, resisting a national official, or offering violence to a foreign representative.
The United States could now command some respect from the individual. The Union would also assume a new dignity from being a judge instead of an arbiter between the States. No more would such long-continued warfare as the territorial dispute between Connecticut and Pennsylvania bring the Republic into ill-repute. This new judicial power extended to “controversies between citizens of different States.” Never again would the cumbersome machinery of Federal commissioners to hear disputed claims to territory be called into service–a kind of Platonic lot-casting phantasy–because the new national judiciary system covered “controversies between two or more States.” What powerful possibilities were given to the new Central Government in the provision that the Supreme Court should have “appellate jurisdiction from the courts of the several States in the cases hereinafter specially provided for.” It would be found as futile to restrict the cases in which the national court should have an appeal from the State courts as to attempt to reserve all the powers to the States not expressly granted to the Union. In the haste necessarily attendant upon suddenly putting the provisions of the new government into effect, no one had the leisure if any possessed the foresight to consider the limits to which the Federal courts might extend its authority in the light of interpretation. Even Jefferson later confessed that this member of the Federal Government was at first considered as the most harmless and helpless of all its organs.
[Illustration: THE PRESIDENTIAL MANSION, FRANKLIN SQUARE, NEW YORK CITY 1789.]
The beginnings of the national judiciary were so modest that no one could have taken alarm. The day that he signed the judiciary bill, Washington nominated John Jay, of New York, to be chief justice of the court, Edmund Randolph, of Virginia, to be attorney-general, and John Rutledge, of South Carolina, James Wilson, of Pennsylvania, William Gushing, of Massachusetts, Robert H. Harrison, of Maryland, and John Blair, of Virginia, to be associate justices.
State distribution of patronage was not such a criterion as in later appointments; yet the department of Justice represented all parts of the country. Considered from a sectional point, there seemed at the time little likelihood that the court would prove hostile to Southern individualism, since it contained, counting the attorney-general, four Southern men and three Northern men. District judges, attorneys, and marshals for the eleven judicial districts were appointed at the same time. A joint resolution of Congress asked the States to give their jailers power to receive and hold United States prisoners.
“Many of your old acquaintances and friends,” wrote Washington to Lafayette, “are concerned with me in the administration of this government. By having Mr. Jefferson at the head of the department of state, Mr. Jay of the judiciary, Hamilton of the treasury, and Knox that of war, I feel myself supported by able coadjutors, who harmonise extremely well together.”
Randolph, the Attorney-General, had never come in contact with Lafayette and consequently was not mentioned by Washington. This list of the chief administrators of the new Government must have reassured Lafayette, as well as other friends of the experiment, who wished to see it given a fair trial. They feared that the first administration might be given over to its enemies, who would be inclined to decrease rather than to strengthen its powers. Before the elections, General Lincoln had confessed to his former companion in arms, General Washington, his apprehension lest “the Anti-Federalists would try to get into office men unfriendly to the Constitution and so break it down, or men who would change many of its provisions at an early date.” The attitude of the President and of most of his Cabinet, it was well known, was in favour of an efficient central power. John Adams, the Vice-President, had long been an advocate of a stronger frame, and now made good his words by casting the deciding vote in twenty ties in the Senate, every time in favour of centralised authority where there was any doubt involved. By one of these close votes authority was given the President to remove an official without the necessary consent of the Senate. The Constitution was silent on this point, and its decision favourable to the Executive greatly increased the prerogatives of that office.
This summer of 1789 was a time of anxiety for the friends of the new Government. They could scarcely hope that the new machinery had no flaw. At any moment an unforeseen defect might bring the whole to a standstill. Friction fatal to continued happiness might arise between the different departments of the General Government or between it and the component States. The people of some section might refuse to be bound by the General Government. During the heat of debate in the South Carolina Convention, a delegate had defiantly declared that his people would not take part in the new Government, if adopted, if not compelled to do so by force; unless a standing army which the new autocrat would possess should ram it down their throats with the points of bayonets, like the Turkish Janizaries enforcing despotic laws. As time went on and none of these calamities happened, a general confidence took possession of the people. At last they had come into a time of general agreement which would allow the experiment of self-government a fair test. Two States remained out of the Union, but time was expected to bring them in.
CHAPTER VIII
SUMMONING THE GENII OF THE IMPLIED POWERS
Even before the executive part of the new Government had been initiated, Congress attacked the most serious problem it had received from its predecessor. All were agreed that the chief difficulty in carrying on the Revolutionary War had been the lack of sufficient funds. The administration of the Articles of Confederation had been hampered constantly by the same need. The nation was even now millions upon millions of dollars in debt. In order to pay the interest on the French and Spanish loans it had been the custom for several years to borrow more money from the Dutch bankers. This was accomplished with no little difficulty. From the same source John Adams had secured funds with which to install the Government under the Constitution. The President-elect had been compelled to borrow money from a neighbour at Alexandria to meet the expenses of his journey to the capital to be inaugurated.
Public credit both at home and abroad was in ill-repute. To meet the foreign interest and installments due in 1789, over four million dollars must be raised. “Not worth a continental,” sighed the merchant as he turned over a heap of depreciated Continental currency in a corner of his strong box. “Acknowledgment to pay by the ‘untied States,'” said the owner of a pile of worthless United States certificates of indebtedness. His patriotic zeal in lending money to the National Government in her hour of need now bade fair to ruin him. The veteran of the Revolutionary War carried his half-pay certificate to the money-lender, glad to get even five shillings in the pound for it. Holders of various forms of State indebtedness besieged their State authorities for payment, rapidly approaching a point where they would welcome any agency which would get them their due.
According to Madison, the Continental Congress had chosen such an unseasonable date as the first Wednesday in March for beginning the new Government in the hope of levying a duty at once which would catch the spring importations of goods from Europe. It was this purpose which brought him to his feet in the House of Representatives on the eighth day of the first session to introduce a subject which he declared to be of the first magnitude, and one that required their first attention and their united exertions. This was the deficiency in the national treasury. For a remedy, he had chosen an impost on certain imported goods.
Fortunately, an impost was not a novelty requiring time and instruction to secure. Imposts had been instituted generations before to obtain funds for clearing the seas of pirates and for making safe the merchant marine. Because of these laudable objects, imposts had come to be regarded as a legitimate form of external taxation and as a means of raising a revenue to meet the expenses of government. The American people had been familiar with imposts from colonial times; they had been commonly levied by individual States since independence; and they had been associated in thought with the National Government in the vain attempts to revise the Articles by giving it this method of raising a revenue. “To lay and collect imposts” was indisputably stated in the Constitution as a power of the Federal Government. All that was necessary to do was to determine what goods should be liable to a duty and what the amount of duty should be.
Madison submitted for specific duties a fixed list of articles, which the Congress had determined upon in 1783, at the time it was requesting the States to allow it to collect a duty. The list was made up of rum, molasses, wine, tea, pepper, sugar, cocoa, and coffee. These were regarded at the time as luxuries likely to be consumed by those able to pay the duty. Other imported articles were to have an ad valorem duty. Madison had in mind, as he said, a productive tariff to secure money for the bankrupt national treasury. If more money was needed, the rates could be raised at any time. But early in the debate a member from Pennsylvania moved an amendment adding a number of articles to the specified list. They included beef, butter, candles, soap, boots, steel, cordage, nails, salt, tobacco, paper, hats, shoes, coaches, and spices. “Among these,” said he, in explaining his motion, “are some calculated to encourage the productions of our country and protect our infant manufactures.” At once, members from States which did not produce these articles protested that the addition of an impost would keep out foreign competition and make them pay higher prices for the goods. Other members from States which produced articles in neither list were equally urgent in getting their special products added. The tradesmen, manufacturers, and others of Baltimore sent in a petition “to the supreme Legislature of the United States as the guardians of the whole empire,” begging them to impose on all foreign articles, which were made in America, such duties as would give a just preference to their labours. The shipwrights of Charleston in a petition pictured their distress under the present condition of trade and begged relief by proper legislation. Petitions soon followed from coach-makers, soap-boilers, snuff-grinders, makers of mathematical instruments, manufacturers of sheepskin trousers–in fact, nearly every form of industry wished to take advantage of this opportunity to secure national where they had formerly been able to get only local protection. The members of Congress described in their letters to friends the fish battles, the salt battles, and other manifestations in legislative halls of the cupidity of mankind when opportunity is once presented.
In this way it came about that the first revenue measure in the first session of the first efficient National Legislature brought the members face to face with the question of the purpose for which government exists. The Declaration of Independence had declared it to be the securing of certain inalienable rights with which men are endowed by their Creator. This French conception of certain abstract and general rights had taken in British and colonial minds the very concrete shape of property. It is scarcely just to say that even unconsciously the British people had instituted government for the protection of property and invested interests; but it is within the bounds of truth to say that a large part of the legislation of Parliament, in the formative days of the American colonies, had been inaugurated with this end in view. With the abuses of the monopolies granted by the mother country, the colonists were only too familiar. But the principle had been inherited, and it had been put into practice in the shape of legislative aid granted by colonial assemblies for the inauguration of various commercial and manufacturing enterprises. Sometimes this assistance had taken the form of money; at other times, of a patent or monopoly granted for a number of years. Petitions for such aid had been presented to the Continental Congress at various times. It was not strange that they should appear in the new Congress, as has just been described.
Political parties had not yet been developed, but the debates on this first tariff bill showed a strong tendency to sectionalism, arising from the varied interests of an extensive territory. It was a sectionalism which, if it prevailed, would tend to weaken the Central Government, but, if overcome by compromise or force, would strengthen the national authority by the very fact of the victory. At the time the differences of opinion arising from the various parts seemed so irreconcilable that Madison frequently confessed his despair of getting any tariff measure passed at the session; so early did the sectional interests appear, which were destined later to threaten seriously the very existence of the Union.
If the distillers of Philadelphia, for example, petitioned for a greater discrimination in the duties on rum and on molasses, the citizens of Portland, then in Massachusetts, assured Congress that any duty on the latter commodity would operate injuriously and be attended with pernicious consequences to all the New England States. Once entered upon, this protective policy could not be stopped. By mutually aiding each other, members could get articles added to the protected list more easily than the unorganised opposition could keep them out. By comparing such co-operation with the united efforts by which the first settlers had cleared their fields, the phrase “log-rolling” was invented. Thus it happened that the first import bill, intended by Madison as a measure for raising revenue, was turned virtually into a protective-tariff measure, and was so called in the preamble. Few realised the importance of the change at the time. Madison called it the “collective” bill, and wrote to a friend that it had cost much trouble to adjust its regulations to the varied geographical and other circumstances of the States. However unconsciously done, the principle of protective-tariff legislation by the National Government had been adopted.
It is prophetic of the future to note that in this first debate a difference of opinion was shown to exist concerning the proper function of government. One speaker cited the history of the ancient world to prove that the protection of industries and the establishment of manufactures was a very proper aim of government. Others held to a contrary opinion. Madison was among those who thought that business should be left to take its natural course without government interference. He said:
“I own myself the friend to a very free system of commerce and to hold it as a truth that commercial shackles are generally unjust, oppressive, and impolitic; it is also a truth that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”
This was the voice of the country member, unaccustomed to the fostering hand of government. It was also the voice of the minority. The Constitution had been framed and adopted by the commercial interests generally, who took quite an opposite view of the duty of government toward business.
No one at this time seemed to feel the potency of the protective principle in enlarging the power of the Union. It was unseen until fully developed some thirty years later. Yet to appreciate the full force of this tariff bill of July 4, 1789, with its protective preamble, as a sample of Union-making legislation, one need only consider the gratitude which the National Government has won through such protective measures; the attachment of leading men to the Union from guarding their interests; the accumulated strength of moneyed interests in time of danger to the Republic; the use made of the tariff in protecting workingmen; the revenue derived from high tariffs, which has been spent on public improvements; and the force of public opinion which has been frequently rallied by both employer and employee to the support of the execution of a national revenue law.
Above all members of the first administration, Hamilton stood for an efficient National Government. He saw opportunity in the administration and interpretation of the written document to correct the weak places which he had sought in vain to avoid when the frame was being made. A constructive genius by birth, a financier by study, a leader of men by nature, Hamilton had, in the Treasury Department, that function of the new Government which needed the most strengthening, and in its present condition the necessity which would support the strongest measures. Called upon by Congress at the time of its first adjournment to inform them of the exact financial condition of the country, he drew up an exhaustive report showing that the National and State governments together owed something like fifty-two millions of dollars. The national obligation to-day is twenty times that sum. Its proportion to eighty millions of people is not much less than the fifty-two millions were to the three and a half millions of people who faced the debt of Hamilton’s time. But the debt now is of fixed form and assured payment before it is incurred. The debt which Hamilton presented to Congress was heterogeneous in form and without means of payment. Arguing that a national debt properly funded had contributed largely to the prosperity of Great Britain, Hamilton proposed to collect all these evidences of debt into a national obligation, which would bring interest to its holders until paid. The faith of the United States toward its creditors must be redeemed. To secure a revenue with which to pay this interest and evidently to redeem the principal in addition to meeting the running expenses of the Government was the first task. Hamilton proposed to place additional duties on imported goods and to lay a tonnage on vessels using American ports, the latter of which he estimated would yield more than a million dollars. He would also put an excise on distilled spirits manufactured in the United States and on those imported, both bringing in nearly three million dollars. The profits of the post-office he estimated at almost a million dollars