a butcher, who had refused to sell meat for paper to one
Trevett, was brought to trial (1786). Weeden's lawyer pleaded
that the law, refusing jury trial, was in conflict with the " con-
1 Cf. Source Book, No 151, a, for a statement of grievances.
2 All this has no application to an issue of paper money properly secured
upon some real value for which it can be exchanged.
278 THE CRITICAL PERIOD, 1783-1788 [ 328
stitution " l and was therefore void. The court took this view
and dismissed the case. The legislature summoned the judges
to defend themselves ; and, after hearing their defense, voted
that it was unsatisfactory. At the next election, three of the
four judges were defeated ; but their action had helped to lay
the foundation for the tremendous power of the later American
328. Most important of all the anarchic movements was Shays'
Rebellion in Massachusetts. For six months in 1786-1787, parts
of the State were in armed insurrection against the regular
State government. Rioters broke up the courts in three large
districts, to stop proceedings against debtors. And Daniel
Shays, a Revolutionary captain, with nearly two thousand
men, was barely repulsed from the Federal arsenal at Spring
field. Says Francis A. Walker (Making of the Nation, 17) :
"The insurgents were largely, at least in the first instance, sober,
decent, industrious men, wrought to madness by what they deemed their
wrongs ; but they were, of course, joined by the idle, the dissipated, the
discontented, the destructive classes, as the insurrection grew."
i Congress prepared to raise troops to aid Massachusetts, but,
fearing to avow that purpose, pretended to be preparing for an
Indian outbreak. In any case, Congress was too slow to help.
The legislature of Massachusetts, too, proved timid. But
Governor Bowdoin acted with decision. The State militia
were called out (supported by contributions from Boston
capitalists), and the rebels were dispersed in a sharp mid
winter campaign. A few months later, however, Bowdoin was
defeated for reelection by John Hancock, a sympathizer with
the rebellion, who then pardoned Shays and other rebel
329. This rebellion was one of the chief events leading to the new
Federal Constitution. Men could look calmly at Rhode Island vagaries,
and even at New Hampshire anarchy ; but riot and rebellion in the staid,
1 " Constitution " was used here, as by Otis in 1761, in the English sense,
since the Rhode Island Charter made no specific reference to trial by jury
This makes the decision the more daring and remarkable.
331] THE ARTICLES 279
powerful Bay State was another matter. It seemed to prophesy the dis
solution of society, unless there could be formed at once a central govern
ment strong enough "to ensure domestic tranquillity." When Henry
Lee in Congress spoke of using influence to abate the Rebellion, Wash
ington wrote him in sharp rebuke: "You talk, my good Sir, of using
influence. . . . Influence is no government. Let us have one [a govern
ment] by which our lives, liberties, and properties may be secured, or let
us know the worst."
330. All these evils of the Critical Period had their roots in
the Articles of Confederation. The Confederation called itself
a "firm league of friendship." Avowedly it fell far short of
a national union. The central authority was vested in a Con
gress of delegates. These delegates were appointed annually
by the State legislatures, and were paid by them. Each State
had one vote in Congress, 1 and nine States had to agree for
important measures. Each State promised to the citizens of
the other States all the privileges enjoyed by its own citizens
(the greatest step toward real unity in the Articles) ; and the
States were forbidden to enter into any treaty with foreign
powers or with each other, or to make laws or impose tariffs
that should conflict with any treaty made by Congress. Con
gress was to have sole control over all foreign relations ; and,
for internal matters, it was to manage the postal service and
regulate weights and measures and the coinage.
The final article read : " Every State shall abide by the deter
mination of the United States, in Congress assembled, on all
questions which by this Confederation are submitted to them.
And the Articles of this Confederation shall be inviolably ob
served by every State, and the Union shall be perpetual. . . ."
But a previous article provided, " Each State retains its sov
ereignty, freedom, and independence, and every power, juris
diction, and right which is not by this Confederation expressly
delegated to the United States in Congress assembled."
331. The " Articles of Confederation " was not a crude or clumsy
document of its kind. Probably it was the best constitution for a
1 For this rule in 1774, cf. Source Book, No. 130, a. For the contest over
the matter in forming the Articles of Confederation, cf. ib., No. 146.
280 THE CRITICAL PERIOD, 1783-1788 [ 331
confederacy of states that the world had ever seen. Certainly it
had many improvements over the ancient Greek confederations
and over the Swiss and Dutch unions. The real trouble was,
no mere confederacy could answer the needs of the new American
people. That people needed a national government.
The inadequacies of the Articles may be treated conveniently
under" four heads : (1) poor machinery of government ; (2)
insufficient enumeration of powers ; (3) impossibility of amend
ment ; and (4) the fact that the government could not act upon
individual citizens, but only upon States.
a. The requirement that nine States in Congress must agree
for important business hindered action unduly, especially
when for long periods not more than nine or ten States were
represented. Moreover, the union had no executive and only
a feeble germ of a judiciary.
b. No federal government had ever had a longer list of impor
tant matters committed to its control, but the list should have
contained at least two more powers : power to regulate interstate
commerce would have prevented much civil strife ; and author
ity to levy a low tariff for revenue would have done away with
the chief financial difficulties.
c. After all, the defects discussed in a and b were matters
of detail. They might have been remedied without giving up
the fundamental principle of the union as a league of sovereign
States. And the States would have corrected them, in part at
least, had it not been for the third evil. The amending clause
(in the Thirteenth Article) demanded the unanimous consent
of the thirteen /State legislatures for any change in the Articles.
In practice, this prevented any amendment.
In February, 1781, Congress submitted to the States an amendment
which would have added to its powers the authority to put a five per cent
tariff on imports, the proceeds to be used in paying the national debt
and the interest upon it. This modest request for an absolutely indis
pensable power roused intense opposition. " If taxes can thus be levied
by any power outside the States," cried misguided patriots, " why did we
oppose the tea duties ? " After a year's discussion, twelve States con-
332] THE ARTICLES 281
sented ; but Rhode Island voted that such authority in Congress would
"endanger the liberties of the States," and the amendment failed.
Another attempt was made at once (1783), similar to the former ex
cept that now the authority was to be granted Congress for only twenty-
five years. Four States voted No. 1 Congress made them a solemn appeal
not to ruin the only means of redeeming the sacred faith of the Union.
Three of them yielded, but New York (jealous now of her rapidly grow
ing commerce) maintained her refusal ; and the amendment again failed
(1786), after three years of negotiation. Farseeing men then gave up
hope of efficient amendment by constitutional means. Revolution (peace
able or violent) or anarchy, these were the alternatives.
d. The fourth evil (the failure to act upon individuals) was
fundamental. It could not be corrected except by changing the
confederation of sovereign States into some kind of national
union. For three millions of weak subjects Congress might
have passed laws. On thirteen powerful subjects it could
merely make requisitions. John Smith or Henry Jones would
hardly think of refusing obedience to a command from a Cen
tral government ; but New York or Virginia felt as strong as
Congress itself, and would do as they pleased. A confederation
of states is necessarily a " government by supplication."
332. In the final outcome it was fortunate that constitutional
amendment was impossible. Otherwise, reasonable amendment
might have patched up the Articles and kept the defective
union alive. But no ordinary amendment could have cured the
fundamental evil. The Constitutional Convention of 1787, when
it came, perceived the need clearly and met it courageously.
For several years, from 1781 to 1787, thinkers had been grop
ing towards the idea that we must have a new kind of federa-
tion, such that the central government could act directly upon
individual citizens; and in that final year Hamilton wrote :
" The evils we experience do not proceed from minute or partial imper
fections, but from fundamental errors in the structure, which cannot be
1 Virginia was one of the four States that at first refused. " This State,"
said Arthur Lee, "is resolved not to suffer the exercise of any foreign power
or influence within it." And Richard Henry Lee affirmed that if such an
amendment prevailed, Liberty would " become an empty name."
282 THE CRITICAL PERIOD, 1783-1788 [ 333
amended otherwise than by an alteration in the first principles and main
pillars of the fabric. The great radical vice of the existing confederacy
is the principle of LEGISLATION for STATES in their corporate or collective
capacity, as contradistinguished from the INDIVIDUALS of which they con
sist." Federalist, XI. (The variety of type was used by Hamilton.)
333. This fundamental defect of the Confederation had been found
in every federal union in earlier history. All had been confedera
tions of states. The American Constitution of 1787 was to give
to the world a new type of government, a federal state. In
the old type the states remained sovereign states confederated.
In the new type they are fused, for certain purposes, into one
This new kind of federal government was " a great discovery
in political science." 1 It was adopted by Switzerland in 1848,
by the Dominion of Canada in 1867, by the German Empire in
1871, by Australia in 1900, and by South Africa in 1909.
1 Tocqueville, a shrewd and friendly French observer. His Democracy in
America (1835) was the first careful and sympathetic study of our institu
tions. For sixty years it remained the best textbook on our government,
until superseded, in a measure, by the work of an English statesman (Bryce's
American Commonwealth). Both works may be used to advantage by high
THE FEDERAL CONVENTION
334. WHEN the second revenue amendment failed, in 1786
( 331), a Continental convention had already been called to con
sider more radical changes.
Suggestions for a convention to form a stronger government
had been made from time to time by individuals for several
years. As early as 1776 Thomas Paine had urged :
" Nothing but a continental form of government can keep the peace of
the continent. . . . Let a continental conference be held to frame a con
tinental charter. . . . Our strength and happiness are continental, not
provincial. We have every opportunity and every encouragement to
form the noblest and purest constitution on the face of the earth."
Twice Hamilton had secured from the New York legislature a
resolution favoring such a convention. No concrete result fol
lowed, however, until these proposals became connected with a
Washington had long been interested in Western lands, and
at the close of the Revolution he owned some thirty thousand
acres in the Virginia Military Reserve ( 311). A visit to the
West impressed him powerfully with the need of better com
munication with that region, both for business prosperity and
for continued political union ; l and he urged Virginia to build
roads to her Western possessions. In pursuance of this idea
he became president of a company to improve the navigation
of the Potomac. This matter required assent from both Vir
ginia and Maryland. These States were also in dispute over
the tariffs at the mouth of Chesapeake Bay. At Washington's
1 Referring to the danger that the Westerners might join Spain ( 304), he
wrote : " They . . stand, as it were, upon a pivot. The touch of a feather
would turn them either way."
284 MAKING THE CONSTITUTION [ 335
invitation, commissioners from the two States met at Mount
Vernon, to discuss these matters. There it was decided to hold
another meeting to which Pennsylvania also should be invited,
as she, too, was interested in Chesapeake Bay. Washington
had suggested that the proposed meeting, since it concerned
improvement in the means of commerce, should consider also
the possibility of uniform duties on that commerce. Maryland
expressed approval, and asked whether it might not be well to
invite other States to the proposed conference ; and Virginia
finally issued an invitation to all the States to send representa
tives to Annapolis, September 1, 1786.
335. Only five States appeared at this Annapolis Convention.
Even Maryland failed to choose delegates. But New Jersey
had instructed her representatives to try to secure, not only
uniform duties, but also other measures which might render the
Confederation adequate to the needs of the times. This thought
was made the basis of a new call. The delegates at Annapolis
adopted an address (drawn by Hamilton) urging all the States
to send Commissioners to Philadelphia the following May,
" to devise such further provisions as shall appear to them necessary to
render the constitution of the federal government adequate to the exi
gencies of the Union," and to report to Congress such an act " as when
agreed toby them [Congress], and confirmed by the legislatures of every
State, will effectually provide for" those exigencies.
At first this call attracted little attention. But the sudden
increase of anarchy in the fall of 1786 brought men to recognize
the need for immediate action ( 329). Here was the oppor
tunity. Madison persuaded the Virginia legislature to appoint
delegates and to head the list with the name of Washington.
Other States followed promptly ; and the Philadelphia Conven
tion became a fact.
Even in Virginia there was warm opposition to a convention. Patrick
Henry refused to attend, and the young Monroe called the meeting un
wise. Washington thought of declining his appointment, not because the
meeting was not needed, but because he expected it to turn out a fizzle.
Not until late in March did he agree to go, after three months of hesitation.
337] THE FEDERAL CONVENTION 285
336. The famous Philadelphia Convention lasted four months
from May 25, 1787, to September 17. The debates were
guarded by the most solemn pledges of secrecy. Most that we
know about them comes from Madison's notes. Madison had
been disappointed in the meager information regarding the es
tablishment of earlier confederacies, and he believed that upon
the success of the federation now to be formed " would be
staked . . . possibly the cause of liberty throughout the world."
Accordingly, he determined to preserve full records of its
genesis. Missing no session, he kept careful notes of each
day's proceedings and of each speaker's arguments ; and each
evening he wrote up these notes more fully, submitting them
sometimes to the speakers for correction. In 1837, when every
member of the Convention had passed away, Congress bought
this manuscript from Mrs. Madison, and published it as " Madi
son's Journal of the Constitutional Convention" A few other
members took imperfect notes and several wrote letters that
throw light upon the attitude of certain men. 1
337. Fifty-five men sat in the Convention. Seventy-three
delegates were appointed; but eighteen failed to appear.
Twenty-nine of the fifty-five had benefited by college life ; but
among those who had missed that training were Franklin and
Washington. With few exceptions the members were young
men, several of the most active being under thirty. The entire
body was English by descent and traditions. Three notable
members Alexander Hamilton of New York, and James
Wilson and Eobert Morris of Pennsylvania had been born
English subjects outside the United States ; and the great
South Carolina delegates, Rutledge and the Pinckneys, had
been educated in England.
Virginia and New Jersey were to give their names to the two
schemes that contended for mastery in the Convention ; and
their delegations, therefore, are of special interest. Virginia
sent seven members. Among them were Washington, George
1 All these sources are collected and edited by Professor Max Farrand in
The Records of the Federal Convention of 1787.
286 MAKING THE CONSTITUTION [ 338
Mason (who eleven years before had drawn the first State
constitution), Edmund Randolph, her brilliant young Governor,
and Madison, who was to earn the title " Father of the Consti
tution." New Jersey sent four delegates, all tried statesmen :
Livingstone, eleven times her Governor ; Patterson, ten times
her Attorney-General ; Brearly, her great Chief Justice, who
had taken the greatest step in America so far toward magnify
ing the function of the courts ( 352, b, note) ; and Houston,
many times her Congressman.
These delegations were typical. " Hardly a man in the
Convention," says McMaster, "but had sat in some famous
assembly, had filled some high place, or had made himself con
spicuous for learning, for scholarship, or for signal service
rendered in the cause of liberty."
338. But this illustrious company felt a deep distrust of de
mocracy. They did not believe in a " government o/the people
and by the people." In their political thought, they were much
closer to John Winthrop than to Abraham Lincoln. They wished
a government for the people, but by what they were fond of
calling " the wealth and intelligence of the country." At best,
they were willing only so far to divide power between "the
few " and " the many " as to keep each class from oppressing
the other, and they felt particular tenderness for " the few"
The same causes that made them desire a stronger government
made them wish also a more aristocratic government. It
seemed an axiom to them that the unhappy conditions of their
country were due (as Gerry 1 phrased it) to "an excess of
Necessarily the men of the Convention belonged to the eight
eenth century, not the twentieth. But, more than that, they
represented the crest of a reactionary movement of their own
day. In the early Revolutionary years, the leaders had been
forced to throw themselves into the arms of democracy for
protection against England ( 231), and those years had been
1 Elbridge Gerry was one of the four delegates from Massachusetts, perhaps
the most democratic of them, and, some years later, a real democratic leader.
338] DISTRUST OF DEMOCRACY 287
marked by a burst of noble enthusiasm for popular government.
But, when the struggle was over, the "leaders of society"
began to look coldly upon further partnership with distasteful
allies no longer needed ; and this inevitable tendency was mag
nified by the unhappy turbulence of the times. By 1785,
especially among the professional and commercial classes, a
conservative reaction had set in ; and this expressed itself em
phatically in the Philadelphia Convention. Says Woodrow Wil
son (Division and Reunion, 12 ):
"The Federal government was not by intention a democratic govern
ment. In plan and in structure it had been meant to check the sweep and
power of popular majorities. . . [It] had in fact been originated and
organized upon the initiative, and primarily in the interest, of the mer
cantile and wealthy classes."
May 31, the second day of debate, Gerry declared that he
" abhorred " pure democracy as " the worst of all political evils. 7 ' l
The same day, Roger Sherman of Connecticut objected to the
popular election of the members even of the lower House of Con
gress, because " the people, immediately, should have as little to do
as may be about the government " ; and Randolph explained that
the Senate, in the Virginia plan, was designed as "a check
against this tendency " [democracy]. In tracing to their origin
the evils under which the country labored, " every man," he
affirmed, " had found [that origin] in the turbulence and follies of
democracy." Two days later, Dickinson declared "a limited
monarchy . . . one of the, best governments in the world. It
was not certain that equal blessings were derivable from any
other form. ... A limited monarchy, however, was out of the
question. The spirit of the times forbade the experiment. . . .
But though a form the most perfect perhaps in itself be unat
tainable, we must not despair " ; and he proceeded to suggest
ways to make property count in the new government. June 6,
he returned to this theme, urging that the Senate should be
" carried through such a refining process [viz., indirect elections
1 The following quotations in this chapter all come from Madison's Journal,
unless otherwise indicated.
288 FEDERAL CONVENTION OF 1787 [ 339
and property qualifications] as will assimilate it, as nearly as
may be, to the House of Lords in England."
Gouverneur Morris of Pennsylvania, one of the most brilliant
and effective men in the Convention, also believed it essential
that the Senate should be " an aristocratic body," composed of
rich men holding office for life. Said he, " It must have great
personal property ; it must have the aristocratic spirit ; it must
love to lord it through pride." Morris, Eufus King of Massa
chusetts, and Eutledge strove strenuously to have wealth repre
sented in the lower House also, affirming, each of them, that
"property is the main object of government"; nor did this
claim, so un-American to our ears, call forth one protest that
government should concern itself as much with human rights
as with property rights.
Hamilton held, 'perhaps, the most extreme ground against
democracy. He " acknowledged himself not to think favorably
of republican government. . . .. He was sensible at the same
time that it would be unwise [for the convention] to propose
one of any other form. But in his private opinion, he had no
scruple in declaring, supported as he was by the opinion of so
many of the good and wise, that the British government was
the best in the world, and he doubted much whether anything
short of it would do in America" It was " the model to which
we should approach as nearly as possible." The House of
Lords he styled "a most noble institution," especially com
mending it as " a permanent barrier against every pernicious in
339. Such statements went almost unchallenged. Dissent, if
expressed at all, cloaked itself in apologetic phrase. This was
due to the unfortunate absence of a group of splendid figures
1 Hamilton then presented a detailed plan, which, he said, represented his
own views of what was desirable in America: an Executive for life, with
extreme monarchic powers (including an absolute veto), chosen by indirect
election; a Senate for life, chosen by indirect election; and a representative
assembly chosen by freeholders; this government was to appoint the gov
ernors of the States, and, through them, to exercise an absolute veto upon all
DISTRUST OF DEMOCRACY
whom we might have expected to see in that gathering. Great
as the Virginia delegation was, it might have been greater still,
had it included Thomas Jefferson, Patrick Henry, Richard
Henry Lee, or Thomas Paine; and it would no doubt have
been well had Massachusetts sent Samuel Adams, or New
York her great war-governor, George Clinton. Four or five
of these democratic leaders would have given a different tone
to the debates. As things
were, every prominent
patriot of Revolutionary
fame, on the conservative
side, was present, except
John Adams and John
Jay ; but the lonely repre
sentatives of democracy
were George Mason and
the aged and gentle Frank
lin. And even Mason " ad
mitted that we had been
too democratic," though
he was fearful the Con
vention was going to the
other extreme. 1