The Constitution of the United States Part 3

Then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. On June 13 the committee rose. Even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. There were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of States or an a.s.sociation of nations between the great and the little States.

The five larger States had a population that was nearly twice as great as the remaining eight States. Thus Virginia's population was nearly ten-fold as great as Georgia. Moreover, the States differed greatly in their material wealth and power. Nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each State, large or small, voted as a unit), should and must be preserved in the future government. To this the larger States were quite unwilling to yield, and when the committee rose they reported, in substance, the Virginia plan, with the proviso that representation in the proposed double-chambered Congress should be "according to some equitable ratio of representation."

On June 15 the small States presented their draft, which was afterwards known as the New Jersey plan, because it was introduced by Mr. Patterson of that State. It only contemplated an amendment to the existing Const.i.tution and an amplification of the powers of the impotent Confederation. Its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of States, in which the central government could generally act only by the vote of nine States, and in which their power was exhausted when they requested the States to enforce the decrees. Its chief advance over the Articles of Confederation, in addition to the creation of an executive, was an a.s.sertion that the acts of Congress "shall be the supreme law of the respective States ... and that the judiciary of the several States shall be bound thereby in their decisions," and that "if any State or any body of men in any State shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated States ... to enforce and compel obedience to such acts or an observance of such treaties."

While this was some advance toward a truly national government, it yet left the national executive dependent upon the const.i.tuent States, for if they failed to respond to the call above stated the national government had no direct power over their citizens.

The New Jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness.

On June 18 Alexander Hamilton, who agreed with no one else, addressed the convention for the first time. He spoke for five hours and reviewed exhaustively the Virginia and New Jersey plans, and possibly the Pinckney draft. Even the fragment of the speech, as taken in long-hand by Madison, shows that it was a masterly argument. He stated his belief "that the British Government was the best in the world and that he doubted much whether anything short of it would do in America." He praised the British Const.i.tution, quoting Monsieur Necker as saying that "it was the only government in the world which unites government strength with individual security." He a.n.a.lysed and explained your Const.i.tution as it then was and advocated an elective monarchy in form though not in name. It is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be pa.s.sed," but even the execution of all duly enacted laws was in his discretion. The governor, with the consent of the Senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be pa.s.sed and which enforced. Hamilton's governor would have been not dissimilar to Louis XIV, and could have said with him, "L'etat, c'est moi!" The Senate also served for life, and the only concession which Hamilton made to democracy was an elective house of representatives. Thinly veiled, his plan contemplated an elective king with greater powers than those of George III, an imitation House of Lords and a popular House of Commons with a limited tenure.

Hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. His admirers have given great praise to his work in the federal convention. His real contribution lay in the fact that when the Const.i.tution was finally drafted and offered to the people, while he regarded it as a "wretched makes.h.i.+ft," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the Const.i.tution. In so doing, he fought a valorous fight, secured the acquiescence of the State of New York, and without its ratification the Const.i.tution would never have been adopted. Hamilton later thought better of the Const.i.tution, and its successful beginning is due in large measure to his genius for constructive administration.

As the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little States became more acute. The smaller States contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. In this there was technical accuracy, for the delegates had been appointed to revise the Articles of Confederation and not to adopt a new Const.i.tution. A majority of the convention, however, insisted upon the convention proceeding with the consideration of a new Const.i.tution, and their views prevailed. It speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. The smaller States could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall.

At times the debate became bitter in the extreme. James Wilson, a delegate of Pennsylvania and a Scotchman by birth and education, turning to the representatives of the little States, pa.s.sionately said:

"Will you abandon a country to which you are bound by so many strong and enduring ties? Should the event happen, it will neither stagger my sentiments nor duty. If the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds."

He referred to the demand of the larger States that representation should be proportioned to the population. To this Bedford, of Delaware, as heatedly replied;

"We have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. It will be the last, indeed, if the propositions reported by the committee go forth to the people. The large States dare not dissolve the convention. If they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice."

Finally, the smaller States gave their ultimatum to the larger States that unless representation in both branches of the proposed legislature should be on the basis of equality-each State, whether large or small, having one vote-they would forthwith leave the convention. An eye-witness says that, at that moment, Was.h.i.+ngton, who was in the chair, gave old Doctor Franklin a significant look. Franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed.

A recess was taken, and when the convention re-convened on July 2, a vote was taken as to equality of representation in the Senate and resulted in a tie vote. It was then decided to appoint a committee of eleven, one from each State, to consider the question, and this committee reported three days later, on July 5, in favour of proportionate representation in the House and equal representation in the Senate. This suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, Franklin. Again, a vehement and pa.s.sionate debate followed. Vague references were made to the sword as the only method of solving the difference.

On July 9 the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower House. Various suggestions were made to base representation upon wealth or taxation and not upon population. For several days the debate lasted during very heated weather, but on the night of July 12 the temperature dropped and with it the emotional temperature of the delegates.

Some days previous, namely, June 28, when the debates were becoming so bitter that it seemed unlikely that the convention could continue, Doctor Franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. He said:

"The small progress we have made after four or five weeks' close attendance and continual reasonings with each other-our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of government, and examined the different forms of those Republics which, having been formed with the seeds of their own dissolution, now no longer exist. And we have viewed modern States all around Europe, but find none of their const.i.tutions suitable to our circ.u.mstances.

"In this situation of this a.s.sembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of Lights to illuminate our understandings?... And have we now forgotten that powerful Friend or do we imagine that we no longer need His a.s.sistance? I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth: That G.o.d governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been a.s.sured, sir, in the sacred writings, that 'except the Lord build the House they labour in vain that build it.' I firmly believe this; and I also believe that without His concurring aid we shall succeed in this political building no better than the builders of Babel. We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establis.h.i.+ng governments by human wisdom and leave it to chance, war, and conquest.

"I therefore beg leave to move that henceforth prayers imploring the a.s.sistance of Heaven, and its blessings on our deliberations, be held in this a.s.sembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service."

It may surprise my audience to know the sequel. The resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. I suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. Perhaps they thought that "G.o.d helps those who help themselves."

On July 16 the compromise was finally adopted of recognizing the claims of the larger States to proportionate representation in the House of Representatives, and recognizing the claims of the smaller States by according to them equal representation in the Senate. This great result was not effected without the first break in the convention, for the delegates from New York left in disgust and never returned, with the exception of Hamilton, who occasionally attended subsequent sessions. Such was the great concession that was made to secure the Const.i.tution; and the only respect in which the Const.i.tution to-day cannot be amended is that by express provision the equality of representation in the Senate shall never be disturbed. Thus it is that to-day some States, which have less population than some of the wards in the city of New York, have as many votes in the Senate as the great State of New York. It is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the Senate-now numbering ninety-six Senators-a combination of the little States, whoso aggregate population is not a fifth of the American people, can defeat the will of the remaining four-fifths. Pennsylvania and New York, with nearly one-sixth of the entire population of the United States, have only four votes in ninety-six votes in the Senate.

Fortunately, political alignments have rarely been between the greater and the smaller States exclusively. Their equality in the Senate was a big price to pay for the Union, but, as the event has shown, not too great.

The convention next turned its attention to the Executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the States had occasioned.

Then the judiciary article was taken up, and there was much earnest discussion as to whether the new Const.i.tution should embody the French idea of giving to the judiciary, in conjunction with the Executive, a revisory power over legislation. Three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. Fortunately, the good sense of the convention rejected a proposition, that had caused in France constant conflicts between the Executive and the Judiciary, by subst.i.tuting the right of the President to veto congressional legislation, with the right of Congress, by a two-thirds vote of each House, to override the veto, and secondly by an implied power in the Judiciary to annul Congressional or State legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the Const.i.tution. In this adjustment, the influence of Montesquieu was evident.

These and many practical details had resulted in an expansion of the fifteen proposals of the Virginia plan to twenty-three.

Having thus determined the general principles that should guide them in their labours, the convention, on July 26 appointed a Committee on Detail to embody these propositions in the formal draft of a Const.i.tution and adjourned until August 6 to await its report. That report, when finally completed, covered seven folio pages, and was found to consist of a Preamble and twenty-three Articles, embodying forty-three sections. The draft did not slavishly follow the Virginia propositions, for the committee embodied some valuable suggestions which had occurred to them in their deliberations. Nevertheless, it substantially put the Virginia plan into a workable plan which proved to be the Const.i.tution of the United States in embryo.

When the committee on detail had made its report on August 6, the convention proceeded for over a month to debate it with the most minute care. Every day for five weeks, for five hours each day, the members studied and debated with meticulous care every sentence of the proposed Const.i.tution. Time does not suffice even for the barest statement of the many interesting questions which were thus discussed, but they nearly ran the whole gamut of const.i.tutional government. Many fanciful ideas were suggested but with unvarying good sense they were rejected. Some of the results were, under the circ.u.mstances, curious. For example, although it was a convention of comparatively young men, and although the convention could have taken into account the many successful young men in public life in Europe-as, for example, William Pitt-they put a disqualification upon age by providing that a Representative must be twenty-five years of age, a Senator thirty years of age, and a President thirty-five years of age. When it was suggested that young men could learn by admission to public life, the sententious reply was made that, while they could, they ought not to have their education at the public expense.

The debates proceeded, however, in better temper, and almost the only question that again gave rise to pa.s.sionate argument was that of slavery. The extreme Southern States declared that they would never accept the new plan "except the right to import slaves be untouched." This question was finally compromised by agreeing that the importation of slaves should end after the year 1808. It however left the slave population then existing in a state of bondage, and for this necessary compromise the nation seventy-five years later was to pay dearly by one of the most destructive civil wars in the annals of mankind.

August was now drawing to a close. The convention had been in session for more than three months. Of its work the public knew nothing, and this notwithstanding the acute interest which the American people, not merely facing the peril of anarchy, but actually suffering from it, must have taken in the convention. Its vital importance was not under-estimated. While its builders, like all master builders, did "build better than they knew," yet it cannot be said that they under-estimated the importance of their labours. As one of their number, Gouveneur Morris said: "The whole human race will be affected by the proceedings of this convention." After it adjourned one of its greatest partic.i.p.ants, James Wilson, of Pennsylvania, said:

"After the lapse of six thousand years since the creation of the world, America now presents the first instance of a people a.s.sembled to say deliberately and calmly and to decide leisurely and peaceably on the form of government by which they will bind themselves and their posterity."

In the absence of any authentic information, the rumour spread through the colonies that the convention was about to reconst.i.tute a monarchy by inviting the second son of George III, the Bishop of Osnaburg, to be King of the United States; and these rumours became so persistent as to evoke from the silent convention a semi-official denial. There is some reason to believe that a minority of the convention did see in the restoration of a const.i.tutional monarchy the only solution of the problem.

On September 8 the committee had finally considered and, after modifications, approved the draft of the Committee on Detail, and a new committee was thereupon appointed "to revise the style of and arrange the articles that had been agreed to by the House." This committee was one of exceptional strength. There were Dr. William Samuel Johnson, a graduate of Oxford and a friend of his great namesake, Samuel Johnson; Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual gift for lucid expression; James Madison, a true scholar in politics, and Rufus King, an orator who, in the inflated language of the day, "was ranked among the luminaries of the present age."

The convention then adjourned to await the final revision of the draft by the Committee on Style.

On September 12 the committee reported. While it is not certain, it is believed that its work was largely that of Gouveneur Morris.

September 13 the printed copies of the report of the Committee on Style were ready, and three more days were spent by the convention in carefully comparing each article and section of this final draft.

On September 15 the work of drafting the Const.i.tution was regarded as ended, and it was adopted and ordered to be engrossed for signing.

It may be interesting at this point to give the result of their labours as measured in words, and if the framers of the Const.i.tution deserve the plaudits of posterity in no other respect they do in the remarkable self-restraint which those results revealed.

The convention had been in session for 81 continuous days. Probably they had consumed over 300 hours in debate. If their debates had been fully reported, they would probably have filled at least fifty volumes, and yet the net result of their labours consisted of about 4,000 words, 89 sentences, and about 140 distinct provisions. As the late Lord Bryce, speaking in this age of unbridled expression, both oral and printed, so well has said:

"The Const.i.tution of the United States, including the amendments, may be read aloud in twenty-three minutes. It is about half as long as Saint Paul's Epistle to the Corinthians, and one-fourth as long as the Irish Land Act of 1881. History knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity."

Even including the nineteen amendments, the Const.i.tution, after one hundred and thirty-five years of development, does not exceed 7,000 words. What admirable self-restraint! Possibly single opinions of the Supreme Court could be cited which are as long as the whole doc.u.ment of which they are interpreting a single phrase. This does not argue that the Const.i.tution is an obscure doc.u.ment, for it would be difficult to cite any political doc.u.ment in the annals of mankind that was so simple and lucid in expression. There is nothing Johnsonese about its style. Every word is a word of plain speech, the ordinary meaning of which even the man in the street knows. No tautology is to be found and no attempt at ornate expression. It is a model of simplicity, and as it flows through the reaches of history it will always excite the admiration of those who love clarity and not rhetorical excesses. One can say of it as Horace said of his favourite Spring:

O, fons Bandusiae, splendidior vitro. Dulce digne mero, non sine floribus.

If I be asked why, if this be true, it has required many lengthy opinions of the Supreme Court in the 256 volumes of its Reports to interpret its meaning, the answer is that, as with the simple sayings of the great Galilean, whose words have likewise been the subject of unending commentary, the question is not one of clarity but of adaptation of the meaning to the ever-changing conditions of human life. Moreover, as with the sayings of the Master or the unequalled verse of Shakespeare, questions of construction are more due to the commentators than to the text itself.

On September 17 the convention met for the last time. The doc.u.ment was engrossed and laid before the members for signature. Of the fifty-five members who had attended, only thirty-nine remained. Of those, a number were unwilling to sign as individuals. While the members had not been unconscious of the magnitude of their labours, they were quite insensible of the magnitude of their achievement. Few there were of the convention who were enthusiastic about this result. Indeed, as the doc.u.ment was ready for signature, it became a grave question whether the remnant which remained had sufficient faith in their own work to subscribe their names, and if they failed to do so its adoption by the people would have been impossible. It was then that Doctor Franklin rendered one of the last and greatest services of his life. With ingratiating wit and with all the impressiveness that his distinguished career inspired, Franklin thus spoke:

"I confess that there are several parts of this Const.i.tution which I do not at present approve, but I am not sure I shall never approve them. For having lived long I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. Most men indeed as well as most sects in religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant, in a dedication tells the Pope that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said: 'I don't know how it happens, sister, but I meet with n.o.body but myself that's always in the right.'-Il n'y a que moi qui a toujours raison.

"In these sentiments, sir, I agree to this Const.i.tution with all its faults, if they are such; because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered, and I believe further that this is likely to be well administered for a course of years, and can only end in despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. I doubt, too, whether any other convention we can obtain may be able to make a better Const.i.tution. For when you a.s.semble a number of men to have the advantage of their joint wisdom you inevitably a.s.semble with those men all their prejudices, their pa.s.sions, their errors of opinion, their local interests, and their selfish views. From such an a.s.sembly can a perfect production be expected? It therefore astonishes me, sir, to find this system approaching so near to perfection as it does.... Thus, I consent, sir, to this Const.i.tution because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good, I have never whispered a syllable of them abroad. Within these walls they were born and here they shall die. If every one of us in returning to our const.i.tuents 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 lost 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.

"On the whole, sir, I cannot help expressing a wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility-and to make manifest our unanimity, put his name to this instrument."

Truly this spirit of Doctor Franklin could be profitably invoked in this day and generation, when nations are so intolerant of the ideas of other nations.

As the members, moved by Franklin's humorous and yet moving appeal, came forward to subscribe their names, Franklin drew the attention of some of the members to the fact that on the back of the President's chair was the half disk of a sun, and, with his love of metaphor, he said that painters had often found it difficult to distinguish in their art a rising from a setting sun. He then prophetically added:

"I have often and often in the course of the sessions and the vicissitudes of my hopes and fears in its issues, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun."

Time has verified the genial doctor's prediction. The career of the new nation thus formed has. .h.i.therto been a rising and not a setting sun. He had in his sixty years of conspicuously useful citizens.h.i.+p-and perhaps no nation ever had a more untiring and unselfish servant-done more than any American to develop the American Commonwealth, but like Moses, he was destined to see the promised land only from afar, for the new Government had hardly been inaugurated, before Franklin died, as full of years as honours. Prophetic as was his vision, he could never have antic.i.p.ated the reality of to-day, for this nation, thus deliberately formed in the light of reason and without blood or pa.s.sion, is to-day, by common consent, one of the greatest and, I trust I may add, one of the n.o.blest republics of all time.