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