CHAPTER XXII

THE FEDERAL CONSTITUTION

From almost any point of view, diplomatic, constitutional, or economic, a survey of the period of readjustment just described would suggest that the experiment in American independence was not going smoothly. There was too much evidence of hard times, and too little of ordinary well-being. To be sure the country was still alive, and it had secured liberty, or at least it had become independent of the British government, but in its pursuit of happiness it was running far behind the generally approved minimum time. The root of the trouble was economic, but Anglo-Saxons have a way of seeking remedies for such difficulties, not directly, but by way of politics, or government.

James Madison, the philosopher of the constitutional period, was suggesting some sort of middle ground between absolute state sovereignty and a consolidated republic. If a proper form of federation could be secured, he proposed that the national government be given a veto on all acts of the state legislatures rather strange doctrine for the man destined only a few years later to write the Virginia Resolutions! Madison was not the only thoughtful American who was advocating a revision of the Articles of Confederation. Any farsighted man could appreciate the desirability of a change, and there were many who hoped for a stronger central government.

While Madison was pondering over the most feasible plan for a satisfactory division of sovereignty between state and nation, a chain of events had already been started which soon led to action. Virginia and Maryland were trying to work out a policy covering the navigation of the Potomac. In 1785, at Washington's invitation, commissioners from the two states met at Mount Vernon, and drew up some resolutions on the subject. These were submitted to the governments of the two states concerned, and approved by them. Then Maryland suggested another conference on commercial questions, and asked that both Pennsylvania and Delaware be invited. The Virginia legislature approved and its commission, with Mad

ison as a member, invited the other states to send delegates to a convention, to meet at Annapolis, in the early fall of 1786.

THE FEDERAL CONVENTION

So little general interest was there, however, that at the Annapolis meeting, called to consider the important subject of uniform commercial regulations, only five states were represented. Unable to accomplish anything because of this lack of support, the Annapolis delegates proposed another convention of delegates from all the states, to meet at Philadelphia the second Monday in May, 1787. There it would be possible "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," and to report a plan for that purpose to Congress, for submission to the states. Congress mustered up strength enough to issue a formal invitation, calling upon the states to send delegates to a convention, "for the sole and express purpose of revising the articles of confederation."

In the end twelve states took advantage of the opportunity to share in the deliberations, Rhode Island alone, the traditional home of the otherwise minded, refusing to send delegates. The members were chosen by the state legislatures, so they were bound to be good specimens of the governing class of the time. In general they were conservative, alarmed at the widely-prevalent signs of disintegration, and anxious to do something to provide for a better enforcement of the laws. Moreover they had had practical experience in the affairs of government, either as state executives, members of their state legislatures, or perhaps as members of Congress. It is true of course that all of them were men of property, with something to lose in case the disease manifested in Shays's Rebellion became epidemic. As men of property some of them held public securities of one sort or another and as men of intelligence they knew that a more satisfactory form of government would raise the value of all this paper. Even so, it is not necessary to assume, as some historians seem to do, that their primary motive in promoting the Constitution was the desire to line their own pockets. The springs of human behavior are not ordinarily so simple.

Among the individual members two stood out conspicuously as the most famous Americans: George Washington and Benjamin Frankli Both had had wide experience in dealing with the affairs of the United

States from a national standpoint, and both were aware of the dangers in too much state sovereignty. Franklin, however, took an inconspicuous part in the affairs of the Convention, while Washington was in some respects the dominant leader. Chosen to serve as presiding officer, his unusual poise and self-possession kept the members in order, even though at times his dignity seemed almost oppressive. Washington did not look upon the post of chairman as that of a merely neutral spectator. He spoke often in behalf of the measures which were of interest to him, and to his associates in the strong government group.

Associated with Washington in the active work of the Convention was James Madison, the Virginia authority on political science and government. He brought to Philadelphia a fund of information concerning ancient and modern confederacies, as well as a carefully studied analysis of the peculiar weakness of the American Confederation. Because of his study, he became the recognized authority in the Convention, "the best informed Man of any point in debate."

From Pennsylvania, in addition to Franklin, came the two Morrises. So far as the official records show, Robert Morris was generally a spectator. Gouverneur Morris, on the other hand, was one of the liveliest debaters of the group, and he was responsible for the phraseology of the final draft of the Constitution. New York sent one man of outstanding ability in Alexander Hamilton, and two mediocre states' rights enthusiasts whose distinction rests on the fact that they generally cast the vote of their delegation against his wishes. Among the leaders of the small state, or states' rights group, perhaps William Paterson of New Jersey was the ablest and most prominent.

Scheduled to begin its proceedings on the second Monday in May, it was not until May 25 that the work really started. From then on the sessions continued until September 17. During that time fiftyfive delegates attended, although they were not all there at any one time. The average attendance ranged from thirty to thirty-five. The discussions were carried on in secrecy, and the rules provided that nothing pertaining to the debates should be reported outside or published without permission.

Theoretically the Convention had assembled to amend the Articles Confederation, and some of the members held to that original purpose to the very end. But a number of delegates, including the

leaders of the Virginia delegation, had made up their minds to go far beyond that point. They were prepared to begin over again with the federal experiment, and to create a genuine central government. With this purpose in mind, under Madison's direction, the Virginia delegation drew up a plan, which proved to be the framework of the Constitution itself. This called for the establishment of a two chambered legislature, a national executive, and a system of national courts. More important still, the new legislature was to have power to act, something which the Continental Congress could do rarely, and then only with difficulty.

For the first two weeks of the Convention's work, the members who favored either the Virginia plan or something akin to it controlled the proceedings. Gradually, however, the opposition began to coalesce into something like a unit, with a set of principles appealing to the smaller states. Their delegates were determined not to let the large states consolidate their power so completely that they could dominate the whole government. The policy of the anti-national, small state group was soon embodied in the New Jersey, or Paterson, plan. This proposal called, not for an entirely new system, but merely for a revision of the Confederation. To make the old system work Paterson and his friends would have permitted Congress to levy import duties, to regulate trade, and to compel the states to pay the sums assessed against them by the central authority. In this way the two main theories concerning a proper form of government for the United States were laid before the Convention.

THE COMPROMISES

During the first month it was clear that the Virginians and their supporters included a substantial majority of the delegates, and the prospects for the Virginia plan were bright. But no one could tell just how the Convention would divide when the much-debated issue of representation came up for an actual vote. The larger states demanded that voting power in the federal legislature be apportioned on the basis of population. The small states on the other hand insisted upon the preservation of the principle of equality, then in force in the Congress of the Confederation. On June 29 the test vote came. With reference to the lower house, the Convention voted, six states to four, that representation should be based upon population.

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Once this question was settled, Oliver Ellsworth of Connecticut insisted upon a decision regarding the upper house, and urged that the principle of equal representation be preserved there. This suggestion, he said, would allow for a compromise between the two factions. Feeling ran high for a few days, and some of the delegates professed to believe that the end of the deliberations had come. Finally the problem was turned over to a committee, and it recommended the compromise previously suggested by Ellsworth. It took the Convention two weeks to make up its mind regarding the committee's recommendation, but the vote taken, July 19, favored the compromise.

The solution of this problem cleared the way for the rest of the work. Difficulties there still were, to be sure, but the adoption of the "great compromise" showed the proper way out. Although the whole constitution has properly been called a bundle of compromises, there were four that stand out plainly. One question that attracted more or less attention was that of direct taxes. Should Congress have power to levy them, and if so, on what basis: population, or property? As the discussions proceeded, some of the conservative eastern delegates saw a chance to insure their section against a possible danger of the growing influence of the West. Congress might admit new states, and they would be represented on the basis of population. Let direct taxes be assessed on the same principle, said the easterners. Then, even if the West should acquire a preponderating influence in the new Congress, it would have to pay for its power in direct taxes.

At this point the question had to be decided as to whether or not slaves were a part of the population, for purposes of representation and direct taxes. Some of the delegates suggested a ratio which had been used before, that is, the inclusion of three fifths of the slaves in the figures which would determine the number of representatives. This was adopted.

Again there was a difference of opinion between the southern agricultural states and the middle and northern commercial centers. The mercantile interests wanted to confer upon Congress authority to regulate trade, while the plantation interests demurred at this, for fear that the power might be used to block the slave trade. The regulation of commerce was lodged in the hands of Congress with the proviso that there should be no interference with the slave trade for twenty years.