The Constitution of the United States
by
James M. Beck
Part 1 out of 2
Produced by Afra Ullah, Dave Morgan and PG Distributed Proofreaders
[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
Harrington Mann for Gray's Inn_]
JAMES M. BECK
HONORARY BENCHER OF GRAY'S INN
_The Constitution of the United States_
_A brief Study of the Genesis, Formulation and Political Philosophy of
the Constitution of the United States_
_By James M. Beck, LL.D_.
_Solicitor-General of the United States, Honorary Bencher of Gray's Inn_
_With a Preface by The Earl of Balfour_
"_Where there is no vision, the people perish; but he that keepeth the
Law, happy is he."--Proverbs xxix_. 18
"_Remove not the ancient landmark, which thy fathers have
set."--Proverbs xxii_. 28
TO THE HON. HARRY M. DAUGHERTY
ATTORNEY-GENERAL OF THE UNITED STATES
A TRUE AND LOYAL FRIEND, A FAIR AND CHIVALROUS FOE
With whom it is the author's great privilege to collaborate as
Solicitor-General in defending and vindicating in the Supreme Court of
the United States the principles and mandates of its Constitution
_Chamonix_,
_July_ 14 1922
_Preface by the Earl of Balfour_[1]
I have been greatly honoured by your invitation to take the chair on
this interesting occasion. It gives me special pleasure to be able to
introduce to this distinguished audience my friend, Mr. Beck,
Solicitor-General of the United States. It is a great and responsible
office; but long before he held it he was known to the English public
and to English readers as the author who, perhaps more than any other
writer in our language, contributed a statement of the Allied case in
the Great War which produced effects far beyond the country in which it
was written or the public to which it was first addressed. Mr. Beck
approached that great theme in the spirit of a great judge; he
marshalled his arguments with the skill of a great advocate, and the
combination of these qualities--qualities, highly appreciated
everywhere, but nowhere more than in this Hall and among a Gray's Inn
audience--has given an epoch-making character to his work. To-day he
comes before us in a different character. He is neither judge nor
advocate, but historian: and he offers to guide us through one of the
most interesting and important enterprises in which our common race has
ever been engaged.
The framers of the American Constitution were faced with an entirely new
problem, so far, at all events, as the English-speaking world was
concerned; and though they founded their doctrines upon the English
traditions of law and liberty, they had to deal with circumstances which
none of their British progenitors had to face, and they showed a
masterly spirit in adapting the ideas of which they were the heirs to a
new country and new conditions. The result is one of the greatest pieces
of constructive statesmanship ever accomplished. We, who belong to the
British Empire, are at this moment engaged, under very different
circumstances, in welding slowly and gradually the scattered fragments
of the British Empire into an organic whole, which must, from the very
nature of its geographical situation, have a Constitution as different
from that of the British Isles, as the Constitution of the British Isles
is different from that of the American States. But all three spring from
one root; all three are carried out by men of like political ideals; all
three are destined to promote the cause of ordered liberty throughout
the world. In the meanwhile we on this side of the Atlantic cannot do
better than study, under the most favourable and fortunate conditions,
the story of the great constitutional adventure which has given us the
United States of America.
A.J.B.
[Footnote 1: [Address of the Earl of Balfour as Chairman on the occasion
of the delivery on June 13, 1922, in Gray's Inn of the first of the
lectures herein reprinted.]]
_Introduction by Sir John Simon, K.C._[2]
I have the privilege and the honour of adding a few words to express our
thanks to the Solicitor-General of the United States for this memorable
course of lectures. They are memorable alike for their subject and their
form; alike for the place in which we are met and for the man who has so
generously given of his time and learning for our instruction. Mr. Beck
is always a welcome visitor to our shores, and nowhere is he more
welcome than in these ancient Inns of Court which are the home and
source of law for Americans and Englishmen alike. In contemplating the
edifice reared by the Fathers of the American Constitution we take pride
in remembering that it was built upon British foundations by men, many
of whom were trained in the English Courts; and when Mr. Beck lectures
on this subject to us, our interest and our sympathy are redoubled by
the thought that whatever differences there may be between the Old World
and the New, citizens of the United States and ourselves are the Sons of
a Common Mother and jointly inherit the treasure of the Common Law. And
we cannot part with Mr. Beck on this occasion without a personal word.
Plato records a saying of Socrates that the dog is a true philosopher
because philosophy is love of knowledge, and a dog, while growling at
strangers, always welcomes the friends that he knows. And the British
public often greets its visitors with a touch of this canine philosophy.
We regard Mr. Beck, not as a casual visitor, but as a firm friend to
whom we owe much; he has been here again and again and we hope will
often repeat his visits, and Englishmen will never forget how, at a
crisis in our fate, Mr. James Beck profoundly influenced the judgment of
the neutral world and vindicated, by his masterly and sympathetic
argument, the justice of our cause.
[Footnote 2: Address of Sir John Simon on the conclusion, on June
19,1922, of the three lectures herein printed.]
_Author's Introduction_
This book is a result of three lectures, which were delivered in the
Hall of Gray's Inn, London, on June 13, 15, and 19, 1922, respectively,
under the auspices and on the invitation of the University of London.
The invitation originated with the University of Manchester, which,
through its then Vice-Chancellor, Dr. Ramsay Muir, two years ago
graciously invited me to visit Manchester and explain American political
institutions to the undergraduates. Subsequently I was greatly honoured
when the Universities of Cambridge, Edinburgh and London joined in the
invitation.
Unfortunately for me--for I greatly valued the privilege of explaining
the institutions of my country to the undergraduates of these great
Universities--my political duties made it impossible for me to visit
England prior to June 1, about which time the Supreme Court of the
United States, in which my official duties largely preoccupy my time,
adjourns for the summer. Any dates after June 1 were inconvenient to the
first three Universities, but it was my good fortune that the University
of London was able to carry out the plan, and that it had the cordial
co-operation of that venerable Inn of Court, Gray's Inn, one of the
"noblest nurseries of legal training."
Thus I was privileged to address at once an academic and a professional
audience.
I came to England for this purpose as a labour of love. I had no
anticipation of success, for I feared that the interest in the
subject-matter of my lectures would be very slight.
My surprise and gratification increased on the occasion of each lecture,
as the audiences grew in numbers and distinction. Many leading jurists
and statesmen took more than a mere complimentary interest, and some of
them, although pressed with social and public duties, honoured me with
their attendance at all three lectures. How can I adequately express my
appreciation of the great honour thus done me by the Earl of Balfour,
the Lord Chancellor, Lord Justice Atkin, the Vice-Chancellor of the
University of London, and many other leaders in academic and legal
circles--not to forget the Chief Justice of the United States, who paid
me the great compliment of attending the last lecture. To one and nil of
my auditors, my heartfelt thanks!
I also must not fail to acknowledge the generous space given in the
British Press to these lectures, and the even more generous allusions to
them in the editorial columns. An especial acknowledgment is due to
Viscount Burnham and _The Daily Telegraph_ for their generous interest
in this book. The good cause of Anglo-American friendship has no better
friend than Lord Burnham.
This experience has convinced me that now, more than ever before, there
is in England a deep interest in American institutions and their
history. This is as it should be, for--for better or worse--England and
America will play together a great part in the future history of the
world. In double harness they are destined to pull the heavy load of the
world's problems. Therefore these "yoke-fellows in equity" must know
each other better, and, what is more, _pull together_.
As I was revising the proofs of these lectures in beautiful Chamonix,
the prospectus of the Scottish-American Association reached me, in which
its Honorary Secretary and my good friend, Dr. Charles Sarolea, took
occasion to make the following suggestion to his British compatriots:
"To remove those causes of estrangement, to avoid a fateful
catastrophe, in other words, to bring about a cordial understanding
_with_ America, the first condition must be an understanding _of_
America. Such an understanding, or even the atmosphere in which such
an understanding may grow, has still to be created. It is indeed
passing strange that in these days of cheap books and free
education, America should be almost a '_terra incognita_,' that we
should know next to nothing of American history, of the American
Constitution, of American practical politics, of the American
mentality. We scarcely read American newspapers or American books.
Even such masters of classical prose as Francis Parkman, perhaps the
greatest historian who has used the English language as his vehicle,
are almost unknown to the average reader. Our students do not visit
American universities as they used before the War to visit German
universities. The consequence is that again and again we are running
the risk of perpetrating the most grotesque errors of judgment, of
committing the most serious political blunders, in defiance of
American public opinion."
The success of my Gray's Inn lectures convinces me that Dr. Sarolea
underestimates the interest in America and its history in England.
However, the episode, which is treated in these lectures, is, as he
says, "_terra incognita_" not only in England, but even in the United
States. It is amazing how little is known in America of the facts given
in my second lecture. The American student, after rejoicing in the
victory at Yorktown and the end of the War of Independence, generally
skips about eight years to 1789, mid his interest in the history of his
own country recommences with the inauguration of President Washington.
Students of history in both countries thus miss one of the most
interesting and instructive chapters of American history, and indeed of
any history.
I have ventured to add to my Gray's Inn lectures another address, which
I delivered as the "annual address" at the session of the American Bar
Association in Cincinnati, Ohio, on August 31, 1921. I do so, because it
has a direct bearing on the decay of the spirit of constitutionalism
both in America and elsewhere. It discusses a great _malaise_ of our
age, for which, I fear, no written Constitution, however wise, is an
adequate remedy. It was published in condensed form in the issue of the
_Fortnightly_ for October, 1921, and an acknowledgment is due to its
courteous editor for permission to republish it.
I have forborne in these lectures to make more than a passing reference
to the League of Nations and the great Conference which framed it,
tempting as the obvious analogy was. The reader who studies the
appendices will see that the Covenant of the League more nearly
resembles the Articles of Confederation than the Constitution of 1787.
I only mention the subject to suggest that the reader of these lectures
will better understand why the American people take the written
obligations of the League so seriously and literally. We have been
trained for nearly a century and a half to measure the validity and
obligations of laws and executive acts in Courts of Justice and to apply
the plain import of the Constitution. Our constant inquiry is, "Is it so
nominated" in that compact? In Europe, and especially England,
constitutionalism is largely a spirit of great objectives and ideals.
Therefore, while in these nations the literal obligations of Articles X,
XI, XV, and XVI of the Covenant of the League are not taken rigidly, we
in America, pursuant to our life-long habit of constitutionalism,
interpret these clauses as we do those of our Constitution, and we ask
ourselves, Are we ready to promise to do, that which these Articles
literally import, join, for example, in a commercial, social and even
military war against any nation that is deemed an aggressor, however
remote the cause of the war may be to us? Are we prepared to say that in
the event of a war or threatened danger of war, the Supreme Council of
the League may take any action it deems wise and effectual to maintain
peace? This is a very serious committal. Other nations may not take it
so literally, but with our life-long adherence to a written Constitution
as a solemn contractual obligation, we do.
This is said in no spirit of hostility to the League, but only to
explain the American point of view. Since I delivered these lectures, I
took a short trip to the Continent, and while sojourning in Geneva, made
a visit to the offices of the League. All I there saw greatly interested
me, and I could have nothing but a feeling of admiration for the
effective and useful administrative work which the League is doing.
The men who framed the Covenant of the League tried to do, under more
difficult, but not dissimilar, conditions, what the framers of the
American Constitution did in 1787. In both cases the aim was high, the
great purpose meritorious. Those Americans who, for the reasons stated,
are not in sympathy with the structural form and political objectives of
the League, are not lacking in sympathy for its admirable administrative
work in co-ordinating the activities of civilized nations for the common
good. In any study of a World Constitution, the example of those who
framed the American Constitution can be studied with profit.
JAMES M. BECK.
_Chamonix_,
July 14, 1922.
_Contents_
PREFACE BY THE EARL OF BALFOUR
INTRODUCTION BY SIR JOHN SIMON
AUTHOR'S INTRODUCTION
FIRST LECTURE: THE GENESIS OF THE CONSTITUTION
SECOND LECTURE: THE FORMULATION OF THE CONSTITUTION
THIRD LECTURE: THE POLITICAL PHILOSOPHY OF THE CONSTITUTION
THE REVOLT AGAINST AUTHORITY
_I. The Genesis of the Constitution of the United States_
I trust I need not offer this audience, gathered in the noble hall of
this historic Inn--of "old Purpulei, Britain's ornament"--any apology
for challenging its attention in this and two succeeding addresses to
the genesis, formulation, and the fundamental political philosophy of
the Constitution of the United States. The occasion gives me peculiar
satisfaction, not only in the opportunity to thank my fellow Benchers of
the Inn for their graciousness in granting the use of this noble Hall
for this purpose, but also because the delivery of these addresses now
enables me to be, for the moment, in fact as in honorary title a
Bencher, or Reader, of this time-honoured society.
If I needed any justification for addresses, which I was graciously
invited to deliver under the auspices of the University of London, an
honour which I also gratefully acknowledge, it would lie in the fact
that we are to consider one of the supremely great achievements of the
English-speaking race. It is in that aspect that I shall treat my theme;
for, as a philosophical or juristic discussion of the American
Constitution, my addresses will be neither as "deep as a well, nor as
wide as a church door."
My auditors will bear in mind that I must limit each address to the
duration of an hour, and that I cannot go deeply or exhaustively into a
subject that has challenged the admiring comment and profound
consideration of the intellectual world for nearly a century and a half.
If England and America are to act together in the coming time--and the
destinies of the world are, to a very large extent, in their keeping,
then they must know each other better, and, to this end, they must take
a greater interest in each other's history and political institutions.
My principal purpose in these lectures is to deepen the interest of this
great nation in one of the very greatest and far-reaching achievements
of our common race.
Americans have never lacked interest in English history; for however
broad the stream of our national life, how could we ignore its chief
source?
But is there in England an equal interest in the history of America,
whose origin and development constitute one of the most dramatic and
significant dramas ever played upon the stage of this "wide and
universal theatre of man"? It is true that Thackeray, in his
_Virginians_, gave us in fiction the finest picture of our colonial
life, and the late and deeply lamented Lord Bryce wrote one of the best
commentaries upon our institutions in _The American Commonwealth_. In
more recent years two of the most moving portraits of our Hamilton and
Lincoln are due to your Mr. Oliver and Lord Charnwood. We gratefully
recognize this; and yet, how many educated Englishmen have studied that
little known chapter of our history, which gave to the progress of
mankind a contribution to political science which your Gladstone praised
as the greatest "ever struck off at a given time by the brain and
purpose of man"? If "peace hath her victories no less renown'd than
war," this achievement may well justify your study and awaken your
admiration; for, as I have already said and cannot too strongly
emphasize, it was the work of the English-speaking race, of men who,
shortly before they entered upon this great work of constructive
statecraft, were citizens of your Empire. The conditions of colonial
development had profoundly stimulated in these English pioneers the
sense and genius for constitutionalism.
In his speech on Conciliation with America of March 22, 1775, Edmund
Burke showed his characteristically philosophic comprehension of this
powerful constitutional conscience of the then American subjects of the
Empire. After stating that in no other country in the world was law so
generally studied, and referring to the fact that as many copies of
Blackstone's Commentaries had been sold in America as in England, he
added:
"This study renders men acute, inquisitive, dexterous, prompt in
attack, ready in defence, full of resources. In other countries the
people, more simple and of a less mercurial cast, judge of an ill
principle in government only by an actual grievance; here they
anticipate the evil, and judge of the pressure of the grievance by
the badness of the principle."
Moreover, these hardy pioneers were the privileged heirs of the great
political traditions of England. While the Constitution of the United
States was very much more than an adaptation of the British
Constitution, yet its underlying spirit was that of the English speaking
race and the Common Law. Behind the framers of the Constitution, as they
entered upon their momentous task, were the mighty shades of Simon de
Montfort, Coke, Sandys, Bacon, Eliot, Hampden, Lilburne, Milton,
Shaftesbury and Locke. Could there be a better illustration of Sir
Frederick Pollock's noble tribute to the genius of the common law:
"Remember that Our Lady, the Common Law, is not a task-mistress, but
a bountiful sovereign, whose service is freedom. The destinies of
the English-speaking world are bound up with her fortunes and
migrations and its conquests are justified by her works"?
Another reason makes the consideration of the subject not only
interesting but opportune. "These are the times that try men's souls."
It is a time of sifting, when men of all nations in civilization in
these critical days are again testing the value even of those political
institutions which have the sanction of the past. Society is in a state
of flux. Everywhere the foundations of governmental structures seem to
be settling--let us hope and pray upon a _surer_ foundation--and when
the seismic convulsion of the world war is taken into account, it is not
surprising that this is so. While the storm is not yet past and the
waves have not wholly subsided, it is natural that everywhere thoughtful
men as true mariners are taking their reckonings to know where they are
and whether the frail bark of human institutions is still sufficiently
seaworthy to keep afloat.
Moreover, the patent evidences of weakness in the international
organization that we call civilization, the imperative need of ending
the spirit of moral anarchy, and the urgent necessity of rebuilding the
shattered ruins of the social edifice on surer foundations by the
integration of the nations, if possible, into some new form of world
organization, gives peculiar interest in these terrible days to the
manner in which the American people solved a similar problem more than a
century ago.
Then, as now, a world war had ended. Then, as now, half the world was
prostrated by the wounds of fratricidal strife. As Washington said: "The
whole world was in an uproar," and he added that the task "was to steer
safely between Scylla and Charybdis." The problem, then as now, was not
only to make "the world safe for democracy," but to make democracy, for
which there is no alternative, safe for the world. The thirteen colonies
in 1787, while small and relatively unimportant, were, however, a little
world in themselves, and, relatively to their numbers and resources,
this problem, which they confronted and solved, differed in degree but
not in kind from that which now confronts civilization. Impoverished in
resources, exhausted by the loss of the flower of their youth,
demoralized by the reaction from feverish strife, the forces of
disintegration had set in in the United States between 1783 and 1787.
Law and order had almost perished and the provisional government had
been reduced to impotence. A few wise and noble spirits, true Faithfuls
and Great Hearts, led a despondent people out of the Slough of Despond
till their feet were again on firm ground and their faces turned towards
the Delectable Mountains of peace, justice, and liberty. Let it be
emphasized that they did this, not by seeking more power, but by
imposing restraints upon themselves. That spirit of self-restraint is
the essence of the American Constitution.
So enduring was their achievement that to-day the Constitution of the
United States is the oldest comprehensive written form of government now
existing in the world. Few, if any, forms of government have better
withstood the mad spirit of innovation, or more effectively proved their
merit by the "arduous greatness of things done."
For this reason, as the nations of the world are now trying in a cosmic
form and under similar conditions to do that which the founders of the
American Republic in 1787 did in a microcosmic form, a short narration
of that earlier achievement may not be unprofitable in this day and
generation, when we are blindly groping towards some common basis for
international co-ordination.
One of England's greatest Prime Ministers, William Pitt, shortly after
the adoption of the Constitution, prophetically said that it would be
the admiration of the future ages and the pattern for future
constitution building. Time has verified his prediction, for
constitution making has been, since the American Constitution was
adopted, a continuous industry. The American Constitution has been the
classic model for the federated State. Lieber estimated that three
hundred and fifty constitutions were made in the first sixty years of
the nineteenth century, and, in the constituent States of the American
Union, one hundred and three new Constitutions were promulgated in the
first century of the United States.
"Have you a copy of the French Constitution?" was asked of a bookseller
during the second French Empire, and the characteristically witty Gallic
reply was: "We do not deal in periodical literature."
Constitutions, as governmental panaceas, have come and gone; but it can
be said of the American Constitution, paraphrasing the noble tribute of
Dr. Johnson to the immortal fame of Shakespeare, that the stream of
time, which has washed away the dissoluble fabric of many other paper
constitutions has left almost untouched its adamantine strength.
Excepting the first ten amendments, which were virtually a part of the
original charter, only nine others have been adopted in more than one
hundred and thirty years.
A constitution, while primarily for the distribution of governmental
powers, is, in its last analysis, a formal expression of adherence to
that which in modern times has been called the higher law, and which in
ancient times was called natural law. The jurisprudence of every nation
has, with more or less clearness, recognized the existence of certain
primal and fundamental laws which are superior to the laws, statutes, or
conventions of living generations. The original use of the term was to
import the superiority of the Imperial edict to the laws of the Comitia.
All nations have recognized this higher law to a greater or less extent.
If we turn to the writings of the most intellectual race in ancient
time and possibly in recorded history--the Greeks--we shall see the
higher law vindicated with incomparable power in the moral philosophy of
its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
was it better expressed than by Antigone when she was asked whether she
had transgressed the laws of the state and replied:
"Yes, for that law was not from Zeus, nor did Justice, dweller with
the gods below, establish it among men; nor deemed I that thy
decree--mere mortal that thou art--could override those unwritten
and unfailing mandates, which are not of to-day or yesterday, but
ever live and no one knows their birthtide."
Five centuries later the greatest of the Roman lawyers and orators,
Cicero, spoke in the same terms of a higher law, "which was never
written and which we are never taught, which we never team by reading,
but which was drawn by nature herself."
The Roman jurists gave it express recognition. They always recognized
the distinction between _jus civile_, or the law of the State, and the
_jus naturale_, or the law of Nature. They nobly conceived that human
society was a single unit and that it was governed by a law that was
both antecedent and paramount to the law of Rome. Thus, the idea of a
higher law transcending the power of a living generation, and therefore
eternal as justice itself--became lodged in our system of jurisprudence.
Nor was the Common Law wanting in a recognition of a higher law that
would curb the power of King or Parliament, for its earlier masters,
including four Chief Justices (Coke, Hobart, Holt, and Popham),
supported the doctrine, as laid down by Coke, that the judiciary had the
power to nullify a law if it were "against common right and
reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
This view as to the limitation of government and the denial of its
omnipotence was powerfully accentuated in America by the very conditions
of its colonization. The good yeomen of England who journeyed to America
went in the spirit of the noble and intrepid Kent, when, turning his
back upon King Lear's temporary injustice, he said that he would "shape
his old course in a country new." Was it strange that the early
colonists, as they braved the hardships and perils of a dangerous
voyage, only to be confronted in the wilderness by disease, famine and
massacre, should fall back for their own government upon these primal
verities of human society, and claim not only their inherited rights as
Englishmen, but also the peculiar privileges of pioneers in an
unconquered wilderness?
This spirit of constitutionalism in America, which culminated in the
Constitution of the United States, had its institutional origin in the
spacious days of Queen Elizabeth. That wonderful age, which gave to the
world not only Shakespeare, Spenser and Jonson, but also Drake,
Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
The spirit of man had a new birth and was breaking away from the too
rigid bonds of ancient custom and authority.
Among the notable, but little known, leaders of that time was Sir Edwin
Sandys, the leading spirit of the London (or Virginia) company. He was a
Liberal when to be such was an "extra hazardous risk." He was the son of
a Liberal, for his father, a great prelate, had been sent to the Tower
for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
foe of monopolies, and in the same Parliament that impeached the great
genius of this Inn, Francis Bacon, Sandys advocated the then novel
proposition that accused prisoners should have the right to be
represented by counsel, to which the strange objection was made that it
would subvert the administration of justice. As early as 1613, he had
boldly declared in Parliament that even the King's authority rested upon
the clear understanding that there were reciprocal conditions which
neither ruler nor subject could violate with impunity. He might not too
fancifully be called the "Father of American Constitutionalism," for he
caused a constitution--possibly the first time that that word was ever
applied to a comprehensive scheme of government--to be drafted for the
little colony of Virginia in 1609 and amplified in 1612. Speaking in
this venerable Hall, whose very walls eloquently remind us of the mighty
genius of Francis Bacon, it is interesting to recall that these two
charters of government, which were the beginning of Constitutionalism in
America and therefore the germ of the Constitution of the United States,
were put in legal form for royal approval by Lord Bacon himself. Thus
the immortal Treasurer of this Inn is directly linked with the
development of Constitutional freedom in America.
Bacon became a member of the council for the Virginia Company in 1609.
His deep interest in it is attested in the dedication to him by William
Strachey in 1618 of the latter's _Historie of Travaile into Virginia
Brittania_.
In his speech in the House of Commons on January 30, 1621, Bacon saw a
vision of the future and predicted the growth of America, when he said:
"This kingdom now first in His Majesty's Times hath gotten a lot or
portion in the New World by the plantation of Virginia and the
Summer Islands. And certainly it is with the kingdoms on earth as it
is in the kingdom of heaven, sometimes a grain of mustard seed
proves a great tree."
Truly the mustard seed of Virginia did become a great tree in the
American Commonwealth.
One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
became the first Liberal leader in the Colonies, and led the first
revolt against colonial misrule. He was probably of Gray's Inn, for it
is difficult to imagine a Bacon studying in any Inn than the one to
which the great Bacon had given so much loving care.
Due to these charters, on July 30, 1619, the little remnant of colonists
whom disease and famine had left untouched were summoned to meet in the
church at Jamestown to form the first parliamentary assembly in America,
the first-born of the fruitful Mother of Parliaments. It was due to
Sandys not only that the first permanent English settlement in the
Western World was planted at Jamestown in 1607, but that a later group
of "adventurers"--for such they called themselves--destined to be more
famous, were driven by chance of wind and wave to land on the coast of
Massachusetts. Thus was established, not only the beginning of England's
colonial Empire--still one of the most beneficent forces in the
world--but also the principle of local self-government, which, in the
Western World, was destined to develop the American Commonwealth. The
compact, signed in the cabin of the _Mayflower_, while not in strictness
a constitution, like the Virginia Charter, was yet destined to be a
landmark of history.
Sandys suffered for his convictions, for the party of reaction convinced
King James that Virginia was a nest of sedition, and the arbitrary
ruler, in the reorganization of the London company, gave a pointed
admonition by saying: "Choose the devil, if you will, but not Sir Edwin
Sandys." In 1621 he was committed to the Tower and only released after
the House of Commons had made a vigorous protest against his
incarceration. His successor as treasurer of the London company was
Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
conjecture to assume that, when the news of the disaster which befell
one of the fleets of the London Company on the Island of Bermuda reached
England, it inspired Shakespeare to write his incomparable sea idyl,
_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
apostrophe to America, for in Ariel--seeking to be free--can be
symbolized her awakening spirit, while Prospero, with his thaumaturgic
achievements, suggests a constructive genius, which in a little more
than a century has made one of the least of the nations to-day one of
the greatest.
Bacon, Sandys, Southampton and the Liberal leaders of the House of
Commons had implanted in the ideas of the colonists the spirit of
constitutionalism, which was destined to influence profoundly the whole
development of the American colonies, and finally to culminate in the
Constitution of the United States.
The later struggle in the Long Parliament, the fall of Charles I, and
more especially the deposition of James II, the accession of William of
Orange, and the substitution for the Stuart claim of divine right that
of the supremacy of the people in Parliament, naturally had their
reaction in the Western World in intensifying the spirit of
constitutionalism in the growing American Commonwealth.
The colonial history was therefore increasingly marked by a spirit of
individualism, a natural partiality for local rule, and a tenacious
adherence to their special privileges, whether granted to Crown
colonies, like New Hampshire, New York, New Jersey, Virginia, the two
Carolinas, and Georgia, or proprietary governments, like Maryland,
Delaware, and Pennsylvania, or charter governments, such as
Massachusetts, Rhode Island, and Connecticut. In the three colonies last
named formal corporate charters were granted by the Crown, which in
themselves were constitutions in embryo, and the colonists thus acquired
written rights as to the government of their internal affairs, upon the
maintenance of which they jealously insisted. Thus arose the spirit in
America, which treated constitutional rights, not so much as special
privileges granted by plenary Sovereignty, but as contractual
obligations which could be enforced in the Courts against the Sovereign.
All this developed in the colonists a powerful sense of constitutional
morality, and its pertinency to my present theme lies in the fact that
when each of the thirteen colonies became, at the conclusion of the War
of Independence, a separate and independent nation, they were more
concerned, in establishing a central government, to limit its authority
and to maintain local self-government than they were to give to the
new-born nation the powers which it needed. They carried their
constitutionalism to extremes, which nearly made a strong and efficient
central government an impossibility.
Nothing was less desired by them than a unified government. It was
destined to be wrung from their hard necessities. The Constitution was
the reflex action of two opposing tendencies, the one the imperative
need of an efficient central government, and the other the passionate
attachment to local self-rule. Co-operation between the colonies had
been a matter of long discussion and earnest debate, and primarily
resulted from the necessity of defence against a common foe the French
in Canada, and the Indians of the forest. In 1643 four of the New
England colonies united in a league to defend themselves. In 1693
William Penn made the first suggestion for a union of all the colonies.
In 1734 a council was held at Albany at the instance of the Crown to
provide the means for the defence against France in Canada, and it was
then that Franklin submitted the first concrete form for a union of the
colonies into a permanent alliance. It was in advance of the times, for,
conservative as it was, it was unfortunately opposed both by the Crown
and the colonies themselves.
The time was not ripe for any such union, and the reason was apparent.
The colonies differed very much in the character of their populations,
in the nature of their economic interests, and in their political
antecedents. They were not wholly of the English race. Many nations in
Europe had already contributed to the population. For example, New York
was partly Dutch, and in Pennsylvania there was a considerable element
of the Swedes, Germans, and Swiss. Moreover, the colonists were as
widely separated from each other, measured by the facilities of
locomotion, as are the most remote nations of the world to-day. Only a
few men ever found occasion to leave their colony to journey to another,
and most men never left, from birth to death, the community in which
they lived. Outside of the few scattered communities in the different
colonies there was an almost unbroken wilderness, with few wagon roads
and in places only a bridle path. The only methods of communication were
the letters and still fewer newspapers, which were carried by post
riders often through an almost trackless wilderness.
Obviously, a working government could not easily be constituted between
peoples of different religions, races, and economic interests, who, for
the most part, never met each other face to face and with whom frequent
communication was impossible.
The differences between the colonies and the mother-country with respect
to internal taxation slowly developed into an issue of constitutionalism
rather than of legislative policy. As in England, the immediate question
affected the power of the Crown to give to the customs inspectors the
power to make general searches and seizures, to enforce the navigation
laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
the colonial legislature, in which, asserting the illegality of the
search warrants on the ground that they violated the constitutional
rights of Englishmen to protection in their own homes, he asserted that
Acts of Parliament which violated the sanctity of the home were void and
that, more specifically, they violated the charter granted to
Massachusetts. Asserting the doctrine which at that time was the
doctrine of the English common law, as stated by Coke and three other
Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction.
The Parliament cannot make two and two five. Omnipotency cannot do
it.... Parliaments are in all cases to declare what is for the good
of the whole; but it is not the declaration of parliament that makes
it so: there must be in every instance a higher authority, viz.,
GOD. Should an Act of Parliament be against any of His natural laws,
which are immutably true, their declaration would be contrary to
eternal truth, equity and justice, and consequently void; and so it
would be adjudged by the Parliament itself, when convinced of their
mistake."
It is a curious fact that in the reaction from the tyranny of the
Stuarts your country abandoned this principle of the common law by
substituting for the omnipotence of the Crown the omnipotence of
Parliament, while in my country the somewhat vague and unworkable
principle of the common law, which gave the judiciary the power to
invalidate an act of the legislature, when against natural reason and
justice, was developed into the great principle, without which
institutions in an heterogeneous and widely scattered democracy would be
unworkable, namely that the powers of government are strictly defined,
and that neither the executive, the legislative, nor the judicial
departments of the government can go beyond the precise limits
established by the fundamental law. Like the common law, the
Constitution was thus the result of a slow evolution. Mr. Gladstone, in
his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has
proceeded from progressive history, so the American Constitution is
the most wonderful work ever struck off, at a given time by the
brain and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed
_cap-a-pie,_ from the brain of the American people, whereas it was as
much the result of a slow, laborious, and painful evolution as was the
British Constitution. Probably Gladstone so understood the development
of the American Constitution and recognized that its framing was only
the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the Parliament
became acute, the necessity of a union for a common defence became
imperative. As early as July, 1773, Franklin recommended the "convening
of a General Congress" so that the colonies would act together. His
suggestion was introduced in the Virginia House of Burgesses in May,
1774, and as a result there met in Philadelphia on September 5 of that
year the first Continental Congress, styled by themselves: "The
Delegates appointed by the Good People of these Colonies." Nothing was
further from their purpose than to form a central government or to
separate from England. This Congress only met as a conference of
representatives of the colonies to defend what they conceived to be
their constitutional rights.
Before the second Continental Congress met in the following year, the
accidental clash at Lexington and Concord had taken place, and as the
Congress again re-convened a momentous change had taken place, which
was, in fact, the beginning of the American Commonwealth. The Congress
became by force of circumstances a provisional government, and as such
it might well have claimed plenary powers to meet an immediate exigency.
So indisposed were they to separate from England or to substitute for
its rule that of a new government, that the Continental Congress, when
it then involuntarily took over the government of America, failed to
exercise any adequate power. It remained simply a conference without
real power. Each colony had one vote and the rule of unanimity
prevailed. Even its decisions were largely advisory, for they amounted
to little more than recommendations to the constituent States as to what
measures should be taken. Each colony complied with the recommendation
in its discretion and in its own way. Notwithstanding this fatal lack of
authority, the Continental Congress, then actually engaged in civil war,
created an army, and, through its committees, entered into negotiations
with foreign nations. To support the former, it issued paper money, with
the disastrous result that could be readily anticipated. While it had a
presiding officer, it had no executive, and the new nation, which was
hardly conscious of its own birth, had no judiciary.
Had this _de facto_ government assumed the plenary powers which
provisional governments must, under similar circumstances, necessarily
assume, it would have been better for the cause of the colonists. For
want of an efficient central government, the civil administration of the
infant nation was marked by a weakness and incapacity that defeated
Washington's plans and nearly broke his spirit. Washington's little army
was the victim of the gross incapacity of an impotent government. The
soldiers came and went, not as the general commanded, but as the various
colonies permitted. The tragedy of Valley Forge, when the little army
nearly starved to death, and literally the soldiers could be tracked
over the snows by their bleeding, unshod feet, was not due to lack of
clothing and provisions, but to the gross incapacity of a headless
government that if it had had the wisdom to act lacked the authority.
The situation was one of chaos. The colonies recruited their own
contingents, paid such taxes as they pleased, which grew increasingly
less, and the Congress had no coercive power to enforce its policies,
either with reference to internal or external affairs. This situation
was so clearly recognized that immediately after the Declaration of
Independence on July 4, 1776, the draft of a constitution was proposed
to give the central government more effective power; but, although the
necessity was manifest and most urgent, the so-called Articles of
Confederation, which were then drafted in 1776, were never finally
adopted by the requisite number of States until March, 1781, when the
war was nearly over. As the result proved, they marked only a very small
advance over the existing _de facto_ government, for the constituent
States were still too jealous of each other and too hostile to the
creation of a central government to form a truly effective government.
The founders of the Republic could only learn from their errors, but it
is their great merit that they had the ability to profit in the stern
school of experience, of which Franklin has said that it is a "dear
school, but fools will learn in no other."
The founders of the Republic were not fools, and while they did not, as
Gladstone seems to intimate, have the inspired wisdom to develop a
wonderful Constitution by sheer intuition unaided by experience, they
did have the ability to make of their very errors the stepping-stones to
a higher destiny.
By the Articles of Confederation, which, as stated, became effective in
1781, the conduct of foreign affairs was vested in the new government,
which was also given the power to create admiralty courts, regulate
coinage, maintain an army and navy, borrow money, and emit bills of
credit, but the great limitation was that in all other respects the
constituent States retained absolute power, especially with reference to
commerce and taxation. All that the central government could do was to
requisition the States to furnish food supplies, and the States were
then left to impose the taxes and, if necessary, to enforce their
payment in their own way, with the inevitable result that they vied with
each other in the struggle to evade them. The Confederation had no
direct power over the citizens of the several States. Moreover, the
Congress could not levy any taxes, or indeed pass any measure unless
nine out of the thirteen States agreed, and the Constitution could not
be amended except by unanimous vote. While the Congress could select a
presiding officer to serve for one year, yet he had no real executive
authority. During the recess of the Congress, a committee of thirteen,
consisting of one delegate from each State, had _ad interim_ powers, but
not greater than the Congress, which they represented.
Such a government would have been fatal to any people, and so it nearly
proved to be to the infant nation. Two circumstances saved them from the
consequences of such incapacity: one was the invaluable aid of France,
and the other the personality of George Washington. Of this great
leader, one of the noblest that ever "lived in the tide of time," it is
only necessary to quote the fine tribute paid to him by the greatest of
the Victorian novelists in his _Virginians_:
"What a constancy, what a magnanimity, what a surprising
persistence against fortune!... Washington, the chief of a nation
in arms, doing battle with distracted parties; calm in the midst of
conspiracy; serene against the open foe before him and the darker
enemies at his back; Washington, inspiring order and spirit into
troops hungry and in rags; stung by ingratitude, but betraying no
anger, and every ready to forgive; in defeat invincible, magnanimous
in conquest and never so sublime as on that day when he laid down
his victorious sword and sought his noble retirement--here, indeed,
is a character to admire and revere; a life without a stain, a fame
without a flaw."
A year after the Articles of Confederation had been adopted, the war
came to an end by a preliminary treaty on November 30, 1782.
Now follows the least known chapter in American history. It was a period
of travail, of which the Constitution of the United States and the
present American nation were born. The government slowly succumbed from
its own weakness to its inevitable death. Only the shreds and patches of
authority were left. Gradually the union fell apart. Of the Continental
Congress only fifteen members, representing seven colonies, remained to
transact the affairs of the new nation. The army, which previously to
the termination of the war had dissolved by the hundreds, was now unpaid
and in a stale of revolt. Measure after measure was proposed in Congress
to raise money to pay the interest on the bonded indebtedness, which was
in arrears, and to provide funds for the most necessary expenses, but
these failed, in Congress for the want of the necessary nine votes or,
if enacted, the States treated the requisitions with indifference. The
currency of the United States had fallen almost as low as the Austrian
kronen, and men derisively plastered the walls of their houses with the
worthless paper of the Continental Congress. Adequate authority no
longer remained to carry out the terms of the treaties with England and
France, and they were nullified by the failure of the infant nation to
comply with its own obligations and the consequent refusal of the other
contracting parties to comply with theirs. The government made a call
upon the States to raise $8,000,000 for the most vital needs, but only
$400,000 was actually received. Then Congress asked the States to vest
in it the power to levy a tax of five per cent, on imports for a limited
period, but, after waiting two years for the action of the States, less
than nine concurred. The States were then asked to pledge their own
internal revenue for twenty-five years to meet the national
indebtedness, but this could only be done by unanimous consent, and
while twelve States concurred, Rhode Island refused and the measure was
defeated. It was again the infinite folly of the _liberum veto_ which,
prior to the great partition, condemned Poland to chronic anarchy.
The impotence of the new government, which was still sitting in
Philadelphia, can be measured by the fact that on June 9, 1783, word
came that eighty soldiers were on their way to Philadelphia to demand
relief. They stacked their arms in front of the State House, where the
Congress was then sitting, and refused to disband, when requested by
Col. Alexander Hamilton, as the representative of the Congress, to do
so. When Congress appealed to the government of Pennsylvania for
protection, it was advised that the Pennsylvania militia was likewise
insubordinate. The Congress then hastily fled by night and became a
fugitive.
The impotence of the Confederation can be measured by the fact that in
the last fourteen months of its existence its receipts were less than
$400,000, while the interest on the foreign debt alone was over
$2,400,000, and the interest on the internal debt was five-fold greater.
In the absence of any government and in the period of general
prostration it was not unnatural that the spirit of Bolshevism grew with
alarming rapidity. It even permeated the officers of the Army. In March,
1783, an anonymous communication was sent to Washington's officers to
meet in secret conference to take some action, possibly to overthrow the
government. A copy fell into Washington's hands and, while he forbade
the assemblage of the officers under the anonymous call, he himself
directed the officers to assemble. He unexpectedly appeared at the
meeting and, being no speaker, he had reduced his appeal to writing. As
he adjusted his spectacles to read it, he pathetically said: "I have not
only grown gray but blind in your service." He then made a touching
appeal to them not to increase by example the spreading spirit of
revolt. The very sight of their old commander turned the hearts of the
revolting element and the officers remained loyal to their noble leader.
Where the spirit of disaffection was thus found in high places it
naturally prevailed more widely among the masses who had been driven to
frenzy by their sufferings. This culminated in a revolt in Massachusetts
under the leadership of an old soldier named Shays, and it spread with
such rapidity that not only did one-fifth of the people join in
attempting to overthrow the remnant of established authority in
Massachusetts, but it rapidly spread to other States. The offices of
government and the courthouses were seized, the collection of debts was
forbidden, and private property was forcibly appropriated to meet the
common needs.
Chaos had come again. It filled Washington's heart with disgust and
despair. After surrendering his commission to the pitiful remnant of the
government he had retired to Mount Vernon, and for a time declined to
act further as the leader of his people. Thus, in October, 1785, he
wrote James Warren, of Massachusetts:
"The war, as you have very justly observed, has terminated most
advantageously for America, and a fair field is presented to our
view; but I confess to you freely, my dear sir, that I do not think
we possess wisdom or justice enough to cultivate it properly.
Illiberality, jealousy, and local policy mix too much in all our
public councils for good government of the union. In a word, the
Confederation appears to me to be little more than a shadow without
the substance, and Congress a nugatory body, their ordinances being
little attended to.... By such policy as this the wheels of
government are clogged, and our brightest prospects, and that high
expectation which was entertained of us by the wondering world, are
turned into astonishment; and, from the high ground on which we
stood, we are descending into the vale of confusion and darkness."
Again he wrote to George Mason:
"I have seen without despondency, even for a moment, the hours which
America has styled its gloomy ones, but I have beheld no day since
the commencement of hostilities that I thought our liberties in such
imminent danger as at present. Indeed, we are verging so fast to
destruction that I am feeling that sense to which I have been a
stranger until within these three months."
Again in 1786 he writes:
"I think often of our situation, and view it with concern. From the
high ground we stood upon, from the plain path which invited our
footsteps, to be so fallen, so lost, is mortifying; but everything
of virtue has, in a degree, taken its departure from our land....
What, gracious God, is man that there should be such inconsistency,
and perfidiousness in his conduct! It was but the other day that we
were shedding our blood to obtain the Constitutions under which we
now live, and now we are unsheathing our swords to overturn them.
The thing is so unaccountable that I hardly know how to realize it
or to persuade myself that I am not under an illusion of a dream."
It was, however, the darkest hour before the dawn, and again it was
Washington who became his country's saviour. In 1785, some commissioners
from the States of Virginia and Maryland visited Mount Vernon to pay
their respects to the well-loved commander. After conferring with him
upon the chaos of the times, they decided to issue a call for a general
conference of the representatives of the States to be held on September
11, 1786, at Annapolis, Maryland, to discuss how far the States
themselves could agree on common regulations of commerce. At the
appointed time the delegates assembled from Virginia, Pennsylvania,
Delaware, New York and New Jersey, and finding themselves too few in
number to achieve the great objective, the convention contented itself
by issuing another call, drafted by Alexander Hamilton, then under
thirty years of age, to all the States to send delegates to a convention
to be held in Philadelphia on the second Monday in May, 1787, "to take
into consideration the situation of the United States, to devise such
further provisions as should appear to them necessary to render the
Constitution of the Federal Government adequate to the exigencies of the
Union."
The dying Congress tardily approved of this suggestion, but finally, on
January 21, 1787, grudgingly adopted a resolution that--
"It is expedient that on the second Monday in May next a convention
of delegates, who shall have been appointed by the several States,
be held at Philadelphia _for the sole and express purpose of
revising the Articles of Confederation_ and reporting to Congress
and the several legislatures such alterations and provisions therein
as shall, _when agreed to in Congress_ and conformed to by the
States, render the Federal Constitution adequate to the exigency of
the government and the preservation of the union."
It will be noted by the italicized portions of the resolution that this
impotent body thus vainly attempted to cling to the shadow of its
vanished authority by stating that the proposed constitutional
convention should merely revise the worthless Articles of Confederation
and that such amendments should not have validity until adopted by
Congress as well as by the people of the several States. How this
mandate was disregarded and how the convention was formed, and
proceeded to create a new government with a new Constitution, and how
it achieved its mighty work, will be the subject of the next lecture.
Anticipating the masterly ability with which a seemingly impotent and
dying nation plucked from the nettle of danger the flower of safety, let
me conclude this first address by quoting the words of de Tocqueville,
in his remarkable work _Democracy in America_, where he says:
"The Federal Government, condemned to impotence by its Constitution
and no longer sustained by the presence of common danger ... was
already on the verge of destruction when it officially proclaimed
its inability to conduct the government and appealed to the
constituent authority of the nation.... It is a novelty in the
history of a society to see a calm and scrutinizing eye turned upon
itself, when apprised by the legislature that the wheels of
government are stopped; to see it carefully examine the extent of
the field and patiently wait for two years until a remedy was
discovered, which it voluntarily adopted, without having ever wrung
a tear or a drop of blood from mankind."
_II. The Great Convention_
Now follows a notable and yet little known scene in the drama of
history. It reveals a people who, without shedding a drop of blood,
calmly and deliberately abolished one government, substituted another,
and erected it upon foundations which have hitherto proved enduring.
Even the superstructure slowly erected upon these foundations has
suffered little change in the most changing period of the world's
history, and until recently its additions, few in number, have varied
little from the plans of the original architects. The Constitution is
to-day, not a ruined Parthenon, but rather as one of those Gothic
masterpieces, against which the storms of passionate strife have beaten
in vain. The foundations were laid at a time when disorder was rampant
and anarchy widely prevalent. As I have already shown in my first
lecture, credit was gone, business paralysed, lawlessness triumphant,
and not only between class and class, but between State and State, there
were acute controversies and an alarming disunity of spirit. To weld
thirteen jealous and discordant States, demoralized by an exhausting
war, into a unified and efficient nation against their wills, was a
seemingly impossible task. Frederick the so-called Great had said that a
federal union of widely scattered communities was impossible. Its final
accomplishment has blinded the world to the essential difficulty of the
problem.
The time was May 25, 1787; the place, the State House in Philadelphia, a
little town of not more than 20,000 people, and, at that time, as
remote, measured by the facilities of communication, to the centres of
civilization as is now Vladivostok.
The _dramatis personae_ in this drama, though few in numbers, were,
however, worthy of the task.
Seventy-two had originally been offered or given credentials, for each
State was permitted to send as many delegates as it pleased, inasmuch as
the States were to vote in the convention as units. Of these, the
greatest actual attendance was fifty-five, and at the end of the
convention a saving remnant of only thirty-nine remained to finish a
work which was to immortalize its participants.
While this notable group of men contained a few merchants, financiers,
farmers, doctors, educators, and soldiers, of the remainder, at least
thirty-one were lawyers, and of these many had been justices of the
local courts and executive officers of the commonwealths. Four had
studied in the Inner Temple, at least five in the Middle Temple, one at
Oxford under the tuition of Blackstone and two in Scottish Universities.
Few of them were inexperienced in public affairs, for of the original
fifty-five members, thirty-nine had been members of the first or second
Continental Congresses, and eight had already helped to frame the
constitutions of their respective States. At least twenty-two were
college graduates, of whom nine were graduates of Princeton, three of
Yale, two of Harvard, four of William and Mary, and one each from the
Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already
enjoyed world-wide fame, notably Doctor Franklin, possibly the most
versatile genius of the eighteenth century and universally known and
honoured as a scientist, philosopher, and diplomat, and George
Washington, whose fame, even at that day, had filled the world with the
noble purity of his character.
It was a convention of comparatively young men, the average age being
little above forty. Franklin was the oldest member, being then
eighty-one; Dayton, the youngest, being twenty-seven. With the
exception of Franklin and Washington, most of the potential
personalities in the convention were under forty. Thus, James Madison,
who contributed so largely to the plan that he is sometimes called "The
Father of the Constitution," was thirty-six. Charles Pinckney, who,
unaided, submitted the first concrete draft of the Constitution, was
only twenty-nine, and Alexander Hamilton, who was destined to take a
leading part in securing its ratification by his powerful oratory and
his very able commentaries in the Federalist papers, was only thirty.
Above all they were a group of gentlemen of substance and honour, who
could debate for four months during the depressing weather of a hot
summer without losing their tempers, except momentarily--and this
despite vital differences--and who showed that genius for toleration and
reconciliation of conflicting views inspired by a common fidelity to a
great objective that is the highest mark of statesmanship. They
represented the spirit of representative government at its best in
avoiding the cowardice of time-servers and the low cunning of
demagogues. All apparently were inspired by a fine spirit of
self-effacement. Selfish ambition was conspicuously absent. They
differed, at times heatedly, but always as gentlemen of candour and
honour. The very secrecy of their deliberations, of which I shall
presently speak, is ample proof how indifferent they were to popular
applause and the _civium ardor prava jubentium_.
The convention had been slow in assembling. Ample notice had been given
that it would convene on May 13, 1787, but when that day arrived a mere
handful of the delegates, less than a quorum, had assembled.
The Virginia delegation, six in number, and forming probably the ablest
delegation from any State, arriving in time, and failing to find a
quorum then assembled, employed the period of waiting in submitting to
the Pennsylvania delegation the outlines of a plan for the new
Constitution. The plan was largely the work of James Madison, and how
long it had been in preparation cannot be definitely stated. It is clear
that four years before a Philadelphia merchant, one Peletiah Webster,
had published a brochure proposing a scheme of dual sovereignty, under
which the citizens would owe a double allegiance--one to the constituent
States within the sphere of their reserved powers, and one to a
federated government within the sphere of its delegated powers. Leagues
of States had often existed, but a league which, within a prescribed
sphere, would have direct authority over the citizens of the constituent
States, without, however, abolishing the authority of such States as to
their reserved sphere of power, was a novel theory. How far the Virginia
project had been influenced by Webster's suggestion is not clear, but it
is certain that before the convention met Pennsylvania and Virginia,
two of the most powerful States, were committed to it.
The suggestion was a radical one, for the States, with few exceptions,
were chiefly insistent upon the preservation of their sovereignty, and
while they were willing to amend the Articles of Confederation by giving
fuller authority to the central government, such as it was, the
suggestion of subordinating the States to a new sovereign power, whose
authority within circumscribed limits was to be supreme, was opposed to
all their conventions and traditions. Washington, however, had warmly
welcomed the creation of a strong central government, and his
correspondence with the leading men of the colonies for some years
previously had been burdened with arguments to convince them that a mere
league of States would not suffice to create a stable nation. To George
Washington, soldier and statesman, is due above all men the ideal of a
federated union, for without his influence--that of a noble and
unselfish leader--the great result would probably never have been
secured. While still waiting for the convention, to meet, and while
discussing what was expedient and practicable when they did meet,
Washington one day said to a group of delegates, who were considering
the acute nature of the crisis:
"It is too probable that no plan that we propose will be adopted.
Perhaps another dreadful conflict is to be sustained. If, to please
the people, we offer what we ourselves disapprove, how can we
afterwards defend our work? Let us raise a standard to which the
wise and just can repair. The event is in the hand of God."
Noble words, fit to be written in letters of gold over the portal of
every legislature of the world, and it was in this spirit that the
convention finally convened on May 25th, 1787.
When the delegates from nine States had assembled, Washington was
unanimously elected the presiding officer of the convention. It began by
adopting rules of order, and the most significant of these was the
provision for secrecy. No copy should be taken of any entry on the
Journal, or even permission given to inspect it, without leave of the
convention, and "nothing spoken in the house be printed or otherwise
published or communicated without leave." The yeas and nays should not
be recorded. The rule of secrecy was enlarged by an unwritten
understanding that, even when the convention had adjourned, no
disclosure should be made of its proceedings during the life of its
members. When after nearly four months, the convention adjourned, the
secret had been kept, and no one knew even the concrete result of its
deliberations until the Constitution itself, and nothing else, was
offered to the approval of the people. The high-way, upon which the
State House fronted, was covered with earth, to deaden the noise of
traffic, and sentries were posted at every means of ingress and egress,
to prevent any intrusion upon the privacy of the convention. The members
were not photographed daily for the pictorial Press, nor did any cinema
register their entrance into the simple colonial hall where they were to
meet. Notwithstanding this limitation--for no present-day conference or
assembly can proceed with its labours until its members are photographed
for the curiosity of the public--these simple-minded gentlemen--less
intent upon their appearance than their task--were to accomplish a work
of enduring importance.
The extreme care which was taken to preserve this secrecy inviolate, and
its purpose, were indicated in an incident handed down by tradition.
One of the members dropped a copy of a proposition then before the
convention for consideration, and it was found by another of the
delegates and handed to General Washington. At the conclusion of the
session, Washington arose and sternly reprimanded the member for his
carelessness by saying:
"I must entreat gentlemen to be more careful, lest our transactions
get into the newspapers and disturb the public repose by premature
speculations. I know not whose paper it is, but there it is
[_throwing it down on the table_]. Let him who owns it, take it."
He then bowed, picked up his hat and left the room with such evidences
of annoyance that, like school-children, no delegate was willing to
admit the ownership of the paper.
The thought suggests itself: How different the result at Versailles and
Genoa might have been had there been the same reasonable provisions for
discussion and action uninfluenced by too premature public comment of
the day! In these days, when representative government has degenerated
into government by a fleeting public opinion, the price we pay for such
government by, for and of the Press, is too often the inability of
representatives to do what they deem wise and just.
At the close of the convention its records were committed into the
keeping of Washington, with instructions to "retain the journal and
other papers, subject to order of Congress, if ever formed under the
Constitution."
Even the journal consisted of little more than daily memoranda, from
which the minutes ought to have been, but never were, made; and these
fragmentary records of the proceedings of a convention which had been in
continuous session for nearly four months were never published until the
year 1819, or thirty-two years after the close of the convention. Thus,
the American people knew nothing of their greatest convention until a
generation later, and then only a few bones of the mastodon were
exhibited to their curious gaze.
The members of the convention kept its secrets inviolate for many years.
With few exceptions, the great secrets of the convention died with them.
Only one, James Madison, left a comprehensive statement of the more
formal proceedings. With this notable exception, only a few anecdotes,
handed down by tradition, escaped oblivion. The first of the number to
break the pledge of secrecy was Robert Yates, Chief Justice of New York,
who, in 1821, published his recollections; but, as he had left the
convention a few months after it began, his notes ceased with the 5th of
July.
The world would thus have been for ever ignorant of the details of one
of the most remarkable conventions in the annals of mankind had it not
been that one of the ablest of their number, James Madison, regularly
attended the sessions and kept notes from day to day of the debates.
While he was not a stenographer, he had a gift for condensing a speech
and fairly representing its substance. He jealously guarded his Journal
of the Convention until his death. Its very existence was known to few.
He died in 1836, and four years later the government purchased the
manuscript from his widow. Then, for the first time, the curtain was
measurably raised upon the proceedings of a convention which had
created, as we now know, one of the greatest nations in history.
Fifty-three years after the close of the convention, and when nearly
every one of its participants were dead, Madison's Journal was first
published.
When was a great secret better kept? Grateful as posterity must be for
this inestimable gift of great human enterprise, yet even Madison's
careful journal fills one with the deepest regret that this wonderful
debate, which lasted for nearly four months between men of no ordinary
ability, could not have been preserved to the world.
Two or three of the speeches which Madison gives in his Journal are
complete, for when Doctor Franklin spoke he reduced his remarks to
writing and gave a copy to Madison, but of the other speeches only a
fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
addressed the convention in a speech that lasted five hours, in which he
stated his philosophy of government, but of that only a short
condensation, and possibly not even an accurate fragment, remains.
Without this extraordinary provision for secrecy, which is so opposed to
modern democratic conventions, and which so little resembles the famous
point as to "open covenants openly arrived at," the convention could not
have accomplished its great work, for these wise men realized that a
statesman cannot act wisely under the observation of a gallery, and
especially when the gallery compels him by the pressure of public
opinion to work as it directs. I recognize that public opinion--often
temporarily uninformed but in the end generally right--does often save
the democracies of the world from the selfish ends of self-seeking and
misguided leadership; but, given noble and wise representatives, they
work best when least influenced by the fleeting passions of the day.
It is evident that if the framers of the Constitution had met, as
similar conventions have within recent years met at Versailles and
Genoa, with the world as their gallery and with the representatives of
the Press as an integral part of the conference, they would have
accomplished nothing. The probability is that the convention would not
have lasted a month if their immediate purpose had been to placate
current opinion. It may be doubted whether such a convention, if called
to-day, either in your country or mine, could achieve like results, for
in this day of unlimited publicity, when men divide not as individuals
but in powerful and organized groups, a constitutional convention would,
I fear, prove a witches' cauldron of class legislation and demagoguery.
Is it not possible that modern democracy is in danger of strangulation
by its present-day methods and ideals? Again the words of Washington
suggest themselves: "If, to please the people, we offer what we
ourselves disapprove, how can we afterwards defend our work? Let us
raise a standard to which the wise and just can repair."
Working with a sad sincerity and with despair in their hearts, this
little band of men wrought a work of surpassing importance, and if they
did not receive the immediate plaudits of the living generation, their
shades can at least solace themselves with the reflection that posterity
has acclaimed their work as one of the greatest political achievements
of man.
The rules of order and the nature of the proceedings thus determined,
the convention opened by an address by Mr. Randolph of Virginia, in
which he submitted, in the form of fifteen points--nearly the number of
the fatal fourteen--the outlines for a new government. He himself in his
opening speech summarized the propositions by candidly confessing "that
they were not intended for a federal government" (thereby meaning a mere
league of States) but "a strong consolidated union." Upon this radical
change the convention was to argue earnestly and at times bitterly for
many a weary day. The plan provided for a national legislature of which
the lower branch should be elected by the people and the upper branch by
the lower branch upon the nomination of the legislatures of the States.
This legislature should enjoy all the legislative rights given to the
federation, and there followed the sweeping grant that it "could
legislate in all cases to which the separate States are incompetent or
in which the harmony of the United States may be interrupted by the
exercise of individual legislation," with power "to negative all laws
passed by the several States contravening in the opinion of the national
legislature the Articles of the Union."
A national executive was proposed, together with a national judiciary,
and these two bodies were given authority "to examine every act of the
national legislature before it shall operate and every act of a
particular legislature before a negative thereon shall be final." This
marked an immense advance over the Articles of Confederation, under
which there was no national executive or judiciary, and under which the
legislature had no direct power over the citizens of the States, and
could only impose duties upon the States themselves by the concurrence
of nine of the thirteen.
Hardly had Mr. Randolph submitted the so-called Virginia plan when
Charles Pinckney, of South Carolina, a young man of twenty-nine years
of age, with the courage of youth submitted to the House a draft of the
future federal government. Curiously enough, it did not differ in
principle from the Virginia plan, but was more specific and concrete in
stating the powers which the federal government should exercise, and
many of its provisions were embodied in the final draft. Indeed,
Pinckney's plan was the future Constitution of the United States in
embryo; and when it is read and contrasted with the document which has
so justly won the acclaim of men throughout the world, it is amazing
that so young a man should have anticipated and reduced to a concrete
and effective form many of the most novel features of the Federal
Government. As the only copy of Pinckney's plan was furnished years
afterwards to Madison for his journal, it is possible that some of its
wisdom was of the _post factum_ variety.
Having received the two plans, the convention then went, on May 30,
into a committee of the whole to consider the fifteen propositions in
the Virginia plan _seriatim_. They wisely concluded to determine
abstract ideas first and concrete forms later. Apparently for the time
being little attention was paid to Pinckney's plan, and this may have
been due to the hostile attitude of the older members of the convention
to the presumption of his youth.
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 association 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
Constitution 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
assertion 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 constituent 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 Constitution, quoting Monsieur Necker as saying that
"it was the only government in the world which unites government
strength with individual security." He analysed and explained your
Constitution 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 passed," 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 passed 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 Constitution was finally drafted and offered
to the people, while he regarded it as a "wretched makeshift," to use
his own expression, yet he was broad and patriotic enough to surrender
his own views and advocate the adoption of the Constitution. In so
doing, he fought a valorous fight, secured the acquiescence of the State
of New York, and without its ratification the Constitution would never
have been adopted. Hamilton later thought better of the Constitution,
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 Constitution. A majority of the convention, however,
insisted upon the convention proceeding with the consideration of a new
Constitution, 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, passionately 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, Washington, 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 passionate 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 constitutions suitable to our
circumstances.
"In this situation of this Assembly, 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
assistance? I have lived, sir, a long time, and the longer I live,
the more convincing proofs I see of this truth: That _God 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 assured, 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 establishing governments by human wisdom and
leave it to chance, war, and conquest.
"I therefore beg leave to move that henceforth prayers imploring the
assistance of Heaven, and its blessings on our deliberations, be
held in this Assembly 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 "God 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 Constitution;
and the only respect in which the Constitution 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 Constitution 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 substituting 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 Constitution. 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
Constitution 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 Constitution 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
Constitution. 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 constitutional government. Many fanciful ideas
were suggested but with unvarying good sense they were rejected. Some of
the results were, under the circumstances, 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 passionate 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
participants, 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 assembled
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 reconstitute 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 constitutional 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 Constitution 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 Constitution 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 Constitution 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 Constitution, 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 document of
which they are interpreting a single phrase. This does not argue that
the Constitution is an obscure document, for it would be difficult to
cite any political document 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 document 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
document 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 Constitution 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 nobody 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 Constitution 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
Constitution. For when you assemble a number of men to have the
advantage of their joint wisdom you inevitably assemble with those
men all their prejudices, their passions, their errors of opinion,
their local interests, and their selfish views. From such an
assembly 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 Constitution
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 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 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 hitherto been a rising and not a setting sun. He
had in his sixty years of conspicuously useful citizenship--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
anticipated the reality of to-day, for this nation, thus deliberately
formed in the light of reason and without blood or passion, is to-day,
by common consent, one of the greatest and, I trust I may add, one of
the noblest republics of all time.
_III. The Political Philosophy of the Constitution_
In my last address I left Doctor Franklin predicting to the discouraged
remnant of the constitutional convention that the nation then formed
would be a "rising sun" in the constellation of the nations. The sun,
however, was destined to rise through a bank of dark and murky clouds,
for the Constitution could not take effect until it was ratified by nine
of the thirteen States; and when it was submitted to the people, who
selected State conventions for the purpose of ratifying or rejecting the
proposed plan of government, a bitter controversy at once ensued between
two political parties, then in process of formation, one called the
Constitution ratified without controversy. In the remaining ten the
struggle was long and arduous, and nearly a year passed before the
requisite nine States gave their assent. Two of the States refused to
become parts of the new nation, even after it began, and three years
passed before the thirteen States were re-united under the Constitution.
It could not have been ratified had there not been an assurance that
there would be immediate amendments to provide a Bill of Rights to
safeguard the individual. Thus came into existence the first ten
amendments to the Constitution, with their perpetual guaranty of the
fundamental rights of religion, freedom of speech and of the Press, the
right of assemblage, the immunity from unreasonable searches and
seizures, the right of trial by jury, and similar guarantees of
fundamental individual rights.
Distrustful as the American people were of the new Constitution, they
yet had the political sagacity to prefer its imperfections, whatever
they imagined them to be, to the mad spirit of innovation; and in order
that the great instrument should not, through the excesses of party
passion or the temporary caprices of fleeting generations, speedily
become a mere "scrap of paper" they very wisely provided that no
amendment should, in the future, be made unless it was proposed by at
least two-thirds of the Senate and the House of Representatives and
ratified by three-fourths of the States through their legislatures or
through special conventions. This was only one of many striking
negations of the principle of majority rule. As a result of this
provision, if we count the first ten amendments as virtually part of the
original document, only nine amendments have been adopted in 185 years,
and of these, excepting the amendments which ended slavery as the result
of the Civil War, only the last three, passed in recent years partly
through the relaxing influence of the world war, mark a serious
departure from the basic principles of the Constitution.
This stability is the more remarkable when we recall the profound and
revolutionary change that has taken place in the social life of man
since the Constitution was adopted. It was framed at the very end of the
pastoral-agricultural age of humanity. The industrial revolution, which
has more profoundly affected man in the last century and a half than all
the changes which had theretofore taken place in the life of man since
the cave-dweller, was only then beginning. Measured in terms of
mechanical power, men when the Constitution was formed were Lilliputians
as compared with the Brobdingnagians of our day, when man outflies the
eagle, outswims the fish, and by his conquest and utilization of the
invisible forces of nature has become the superman; and yet the
Constitution of 1787 is, in most of its essential principles, still the
Constitution of 1922. This surely marks it as a marvel in statecraft
and can only be explained by the fact that the Constitution was
developed by a people who, as "children brave and free of the great
mother-tongue," had a real genius for self-government and its essential
element, the spirit of self-restraint.
While it is true that the _text_ of the instrument has suffered almost
as little change as the Nicene Creed, yet it would be manifest error to
suggest that in its development by practical application the
Constitution has not undergone great changes.
The first and greatest of all its expounders, Chief Justice Marshall,
said, in one of his greatest opinions, that the Constitution was--
"intended to endure for ages to come, and consequently to be
_adapted_ to the various crises of human affairs. To have prescribed
the means by which government should in all future times execute
its powers would have been to change entirely the character of the
instrument and to give it the properties of a legal code. It would
have been an unwise attempt to provide by immutable rules for
exigencies which, if foreseen at all, must have been foreseen dimly,
and can best be provided for as they occur."
In this great purpose of enumerating rather than defining the powers of
government its framers were supremely wise. While it was marvellously
sagacious in what it provided, it was wise to the point of inspiration
in what it left unprovided.
Nothing is more admirable than the self-restraint of men who, venturing
upon an untried experiment, and after debating for four months upon the
principles of government, were content to embody their conclusions in
not more than four thousand words. To this we owe the elasticity of the
instrument. Its vitality is due to the fact that, by usage, judicial
interpretation, and, when necessary, formal amendment, it can be thus
adapted to the ever-accelerating changes of the most progressive age in
history, and that a people have administered the Constitution who, in
the process of such adaptation, have generally shown the same spirit of
conservative self-restraint as did the men who framed it.
The Constitution is neither, on the one hand, a Gibraltar rock, which
Back to Full Books
|