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effected.

It was during the debate upon this subject, when feeling was running
high and when at times it seemed as if the Convention in default of any
satisfactory solution would permanently adjourn, that Franklin proposed
that "prayers imploring the assistance of Heaven... be held in this
Assembly every morning." Tradition relates that Hamilton opposed the
motion. The members were evidently afraid of the impression which would
be created outside, if it were suspected that there were dissensions in
the Convention, and the motion was not put to a vote.

How far physical conditions may influence men in adopting any particular
course of action it is impossible to say. But just when the discussion
in the Convention reached a critical stage, just when the compromise
presented by the committee was ready for adoption or rejection, the
weather turned from unpleasantly hot to being comfortably cool. And,
after some little time spent in the consideration Of details, on the
16th of July, the great compromise of the Constitution was adopted.
There was no other that compared with it in importance. Its most
significant features were that in the upper house each State should
have an equal vote and that in the lower house representation should
be apportioned on the basis of population, while direct taxation should
follow the same proportion. The further proviso that money bills should
originate in the lower house and should not be amended in the upper
house was regarded by some delegates as of considerable importance,
though others did not think so, and eventually the restriction upon
amendment by the upper house was dropped.

There has long been a prevailing belief that an essential feature of the
great compromise was the counting of only three-fifths of the slaves in
enumerating the population. This impression is quite erroneous. It was
one of the details of the compromise, but it had been a feature of the
revenue amendment of 1783, and it was generally accepted as a happy
solution of the difficulty that slaves possessed the attributes both
of persons and of property. It had been included both in the amended
Virginia Plan and in the New Jersey Plan; and when it was embodied in
the compromise it was described as "the ratio recommended by Congress in
their resolutions of April 18, 1783." A few months later, in explaining
the matter to the Massachusetts convention, Rufus King said that, "This
rule... was adopted because it was the language of all America." In
reality the three-fifths rule was a mere incident in that part of
the great compromise which declared that "representation should be
proportioned according to direct taxation." As a further indication of
the attitude of the Convention upon this point, an amendment to have the
blacks counted equally with the whites was voted down by eight States
against two.

With the adoption of the great compromise a marked difference was
noticeable in the attitude of the delegates. Those from the large States
were deeply disappointed at the result and they asked for an adjournment
to give them time to consider what they should do. The next morning,
before the Convention met, they held a meeting to determine upon
their course of action. They were apparently afraid of taking the
responsibility for breaking up the Convention, so they finally decided
to let the proceedings go on and to see what might be the ultimate
outcome. Rumors of these dissensions had reached the ears of the public,
and it may have been to quiet any misgivings that the following inspired
item appeared in several local papers: "So great is the unanimity, we
hear, that prevails in the Convention, upon all great federal subjects,
that it has been proposed to call the room in which they assemble
Unanimity Hall."

On the other hand the effect of this great compromise upon the delegates
from the small States was distinctly favorable. Having obtained equal
representation in one branch of the legislature, they now proceeded with
much greater willingness to consider the strengthening of the central
government. Many details were yet to be arranged, and sharp differences
of opinion existed in connection with the executive as well as with the
judiciary. But these difficulties were slight in comparison with those
which they had already surmounted in the matter of representation. By
the end of July the fifteen resolutions of the original Virginia
Plan had been increased to twenty-three, with many enlargements and
amendments, and the Convention had gone as far as it could effectively
in determining the general principles upon which the government should
be formed. There were too many members to work efficiently when it came
to the actual framing of a constitution with all the inevitable details
that were necessary in setting up a machinery of government. Accordingly
this task was turned over to a committee of five members who had already
given evidence of their ability in this direction. Rutledge was made the
chairman, and the others were Randolph, Gorham, Ellsworth, and Wilson.
To give them time to perfect their work, on the 26th of July the
Convention adjourned for ten days.



CHAPTER VII. FINISHING THE WORK

Rutledge and his associates on the committee of detail accomplished so
much in such a short time that it seems as if they must have worked day
and night. Their efforts marked a distinct stage in the development of
the Constitution. The committee left no records, but some of the members
retained among their private papers drafts of the different stages of
the report they were framing, and we are therefore able to surmise the
way in which the committee proceeded. Of course the members were bound
by the resolutions which had been adopted by the Convention and they
held themselves closely to the general principles that had been laid
down. But in the elaboration of details they seem to have begun with the
Articles of Confederation and to have used all of that document that was
consistent with the new plan of government. Then they made use of the
New Jersey Plan, which had been put forward by the smaller States, and
of a third plan which had been presented by Charles Pinckney; for the
rest they drew largely upon the State Constitutions. By a combination
of these different sources the committee prepared a document bearing a
close resemblance to the present Constitution, although subjects were in
a different order and in somewhat different proportions, which, at the
end of ten days, by working on Sunday, they were able to present to
the Convention. This draft of a constitution was printed on seven folio
pages with wide margins for notes and emendations.

The Convention resumed its sessions on Monday, the 6th of August, and
for five weeks the report of the committee of detail was the subject of
discussion. For five hours each day, and sometimes for six hours, the
delegates kept persistently at their task. It was midsummer, and we read
in the diary of one of the members that in all that period only five
days were "cool." Item by item, line by line, the printed draft of the
Constitution was considered. It is not possible, nor is it necessary, to
follow that work minutely; much of it was purely formal, and yet any one
who has had experience with committee reports knows how much importance
attaches to matters of phrasing. Just as the Virginia Plan was made
more acceptable to the majority by changes in wording that seem to us
insignificant, so modifications in phrasing slowly won support for the
draft of the Constitution.

The adoption of the great compromise, as we have seen, changed the whole
spirit of the Convention. There was now an expectation on the part of
the members that something definite was going to be accomplished, and
all were concerned in making the result as good and as acceptable
as possible. In other words, the spirit of compromise pervaded every
action, and it is essential to remember this in considering what was
accomplished.

One of the greatest weaknesses of the Confederation was the inefficiency
of Congress. More than four pages, or three-fifths of the whole printed
draft, were devoted to Congress and its powers. It is more significant,
however, that in the new Constitution the legislative powers of the
Confederation were transferred bodily to the Congress of the United
States, and that the powers added were few in number, although of course
of the first importance. The Virginia Plan declared that, in addition to
the powers under the Confederation, Congress should have the right "to
legislate in all cases to which the separate States are incompetent."
This statement was elaborated in the printed draft which granted
specific powers of taxation, of regulating commerce, of establishing
a uniform rule of naturalization, and at the end of the enumeration of
powers two clauses were added giving to Congress authority:

"To call forth the aid of the militia, in order to execute the laws
of the Union, enforce treaties, suppress insurrections, and repel
invasions;

"And to make all laws that shall be necessary and proper for carrying
into execution the foregoing powers."

On the other hand, it was necessary to place some limitations upon
the power of Congress. A general restriction was laid by giving to
the executive a right of veto, which might be overruled, however, by a
two-thirds vote of both houses. Following British tradition yielding
as it were to an inherited fear - these delegates in America were led to
place the first restraint upon the exercise of congressional authority
in connection with treason. The legislature of the United States was
given the power to declare the punishment of treason; but treason itself
was defined in the Constitution, and it was further asserted that
a person could be convicted of treason only on the testimony of two
witnesses, and that attainder of treason should not "work corruption of
blood nor forfeiture except during the life of the person attainted."
Arising more nearly out of their own experience was the prohibition
of export taxes, of capitation taxes, and of the granting of titles of
nobility.

While the committee of detail was preparing its report, the Southern
members of that committee had succeeded in getting a provision inserted
that navigation acts could be passed only by a two-thirds vote of
both houses of the legislature. New England and the Middle States were
strongly in favor of navigation acts for, if they could require all
American products to be carried in American-built and American-owned
vessels, they would give a great stimulus to the ship-building and
commerce of the United States. They therefore wished to give Congress
power in this matter on exactly the same terms that other powers were
granted. The South, however, was opposed to this policy, for it wanted
to encourage the cheapest method of shipping its raw materials. The
South also wanted a larger number of slaves to meet its labor demands.
To this need New England was not favorably disposed. To reconcile the
conflicting interests of the two sections a compromise was finally
reached. The requirement of a two-thirds vote of both houses for the
passing of navigation acts which the Southern members had obtained was
abandoned, and on the other hand it was determined that Congress should
not be allowed to interfere with the importation of slaves for twenty
years. This, again, was one of the important and conspicuous compromises
of the Constitution. It is liable, however, to be misunderstood, for one
should not read into the sentiment of the members of the Convention
any of the later strong prejudice against slavery. There were some
who objected on moral grounds to the recognition of slavery in the
Constitution, and that word was carefully avoided by referring to "such
Persons as any States now existing shall think proper to admit." And
there were some who were especially opposed to the encouragement of
that institution by permitting the slave trade, but the majority of the
delegates regarded slavery as an accepted institution, as a part of the
established order, and public sentiment on the slave trade was not much
more emphatic and positive than it is now on cruelty to animals. As
Ellsworth said, "The morality or wisdom of slavery are considerations
belonging to the States themselves," and the compromise was nothing more
or less than a bargain between the sections.

The fundamental weakness of the Confederation was the inability of the
Government to enforce its decrees, and in spite of the increased powers
of Congress, even including the use of the militia "to execute the
laws of the Union," it was not felt that this defect had been entirely
remedied. Experience under the Confederation had taught men that
something more was necessary in the direction of restricting the
States in matters which might interfere with the working of the central
Government. As in the case of the powers of Congress, the Articles of
Confederation were again resorted to and the restrictions which had
been placed upon the States in that document were now embodied in the
Constitution with modifications and additions. But the final touch was
given in connection with the judiciary.

There was little in the printed draft and there is comparatively little
in the Constitution on the subject of the judiciary. A Federal Supreme
Court was provided for, and Congress was permitted, but not required, to
establish inferior courts; while the jurisdiction of these tribunals was
determined upon the general principles that it should extend to cases
arising under the Constitution and laws of the United States, to
treaties and cases in which foreigners and foreign countries were
involved, and to controversies between States and citizens of different
States. Nowhere in the document itself is there any word as to that
great power which has been exercised by the Federal courts of
declaring null and void laws or parts of laws that are regarded as in
contravention to the Constitution. There is little doubt that the more
important men in the Convention, such as Wilson, Madison, Gouverneur
Morris, King, Gerry, Mason, and Luther Martin, believed that the
judiciary would exercise this power, even though it should not be
specifically granted. The nearest approach to a declaration of this
power is to be found in a paragraph that was inserted toward the end
of the Constitution. Oddly enough, this was a modification of a clause
introduced by Luther Martin with quite another intent. As adopted it
reads: "That this Constitution and the Laws of the United States... and
all Treaties... shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby; any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." This paragraph may
well be regarded as the keystone of the constitutional arch of national
power. Its significance lies in the fact that the Constitution is
regarded not as a treaty nor as an agreement between States, but as a
law; and while its enforcement is backed by armed power, it is a law
enforceable in the courts.

One whole division of the Constitution has been as yet barely referred
to, and it not only presented one of the most perplexing problems which
the Convention faced but one of the last to be settled - that providing
for an executive. There was a general agreement in the Convention that
there should be a separate executive. The opinion also developed quite
early that a single executive was better than a plural body, but that
was as far as the members could go with any degree of unanimity. At the
outset they seemed to have thought that the executive would be dependent
upon the legislature, appointed by that body, and therefore more or
less subject to its control. But in the course of the proceedings the
tendency was to grant greater and greater powers to the executive; in
other words, he was becoming a figure of importance. No such office as
that of President of the United States was then in existence. It was a
new position which they were creating. We have become so accustomed to
it that it is difficult for us to hark back to the time when there was
no such officer and to realize the difficulties and the fears of the men
who were responsible for creating that office.

The presidency was obviously modeled after the governorship of the
individual States, and yet the incumbent was to be at the head of the
Thirteen States. Rufus King is frequently quoted to the effect that the
men of that time had been accustomed to considering themselves subjects
of the British king. Even at the time of the Convention there is good
evidence to show that some of the members were still agitating the
desirability of establishing a monarchy in the United States. It was a
common rumor that a son of George III was to be invited to come over,
and there is reason to believe that only a few months before the
Convention met Prince Henry of Prussia was approached by prominent
people in this country to see if he could be induced to accept the
headship of the States, that is, to become the king of the United
States. The members of the Convention evidently thought that they were
establishing something like a monarchy. As Randolph said, the people
would see "the form at least of a little monarch," and they did not want
him to have despotic powers. When the sessions were over, a lady asked
Franklin: "Well, Doctor, what have we got, a republic or a monarchy?" "A
republic," replied the doctor, "if you can keep it."

The increase of powers accruing to the executive office necessitated
placing a corresponding check upon the exercise of those powers. The
obvious method was to render the executive subject to impeachment,
and it was also readily agreed that his veto might be overruled by a
two-thirds vote of Congress; but some further safeguards were necessary,
and the whole question accordingly turned upon the method of his
election and the length of his term. In the course of the proceedings of
the Convention, at several different times, the members voted in favor
of an appointment by the national legislature, but they also voted
against it. Once they voted for a system of electors chosen by the State
legislatures and twice they voted against such a system. Three times
they voted to reconsider the whole question. It is no wonder that Gerry
should say: "We seem to be entirely at a loss."

So it came to the end of August, with most of the other matters disposed
of and with the patience of the delegates worn out by the long strain
of four weeks' close application. During the discussions it had become
apparent to every one that an election of the President by the people
would give a decided advantage to the large States, so that again there
was arising the divergence between the large and small States. In order
to hasten matters to a conclusion, this and all other vexing details
upon which the Convention could not agree were turned over to a
committee made up of a member from each State. It was this committee
which pointed the way to a compromise by which the choice of the
executive was to be entrusted to electors chosen in each State as its
legislature might direct. The electors were to be equal in number to
the State's representation in Congress, including both senators and
representatives, and in each State they were to meet and to vote for
two persons, one of whom should not be an inhabitant of that State. The
votes were to be listed and sent to Congress, and the person who had
received the greatest number of votes was to be President, provided such
a number was a majority of all the electors. In case of a tie the Senate
was to choose between the candidates and, if no one had a majority, the
Senate was to elect "from the five highest on the list."

This method of voting would have given the large States a decided
advantage, of course, in that they would appoint the greater number
of electors, but it was not believed that this system would ordinarily
result in a majority of votes being cast for one man. Apparently no one
anticipated the formation of political parties which would concentrate
the votes upon one or another candidate. It was rather expected that
in the great majority of cases - "nineteen times in twenty," one of the
delegates said - there would be several candidates and that the selection
from those candidates would fall to the Senate, in which all the States
were equally represented and the small States were in the majority. But
since the Senate shared so many powers with the executive, it seemed
better to transfer the right of "eventual election" to the House of
Representatives, where each State was still to have but one vote. Had
this scheme worked as the designers expected, the interests of large
States and small States would have been reconciled, since in effect the
large States would name the candidates and, "nineteen times in twenty,"
the small States would choose from among them.

Apparently the question of a third term was never considered by the
delegates in the Convention. The chief problem before them was
the method of election. If the President was to be chosen by the
legislature, he should not be eligible to reelection. On the other hand,
if there was to be some form of popular election, an opportunity for
reelection was thought to be a desirable incentive to good behavior. Six
or seven years was taken as an acceptable length for a single term and
four years a convenient tenure if reelection was permitted. It was upon
these considerations that the term of four years was eventually agreed
upon, with no restriction placed upon reelection.

When it was believed that a satisfactory method of choosing the
President had been discovered - and it is interesting to notice the
members of the Convention later congratulated themselves that at least
this feature of their government was above criticism - it was decided
to give still further powers to the President, such as the making of
treaties and the appointing of ambassadors and judges, although the
advice and consent of the Senate was required, and in the case of
treaties two-thirds of the members present must consent.

The presidency was frankly an experiment, the success of which would
depend largely upon the first election; yet no one seems to have been
anxious about the first choice of chief magistrate, and the reason is
not far to seek. From the moment the members agreed that there should be
a single executive they also agreed upon the man for the position.
Just as Washington had been chosen unanimously to preside over the
Convention, so it was generally accepted that he would be the first head
of the new state. Such at least was the trend of conversation and even
of debate on the floor of the Convention. It indicates something of the
conception of the office prevailing at the time that Washington, when
he became President, is said to have preferred the title, "His High
Mightiness, the President of the United States and Protector of their
Liberties."

The members of the Convention were plainly growing tired and there
are evidences of haste in the work of the last few days. There was a
tendency to ride rough-shod over those whose temperaments forced them
to demand modifications in petty matters. This precipitancy gave rise to
considerable dissatisfaction and led several delegates to declare
that they would not sign the completed document. But on the whole the
sentiment of the Convention was overwhelmingly favorable. Accordingly
on Saturday, the 8th of September, a new committee was appointed, to
consist of five members, whose duty it was "to revise the stile of
and arrange the articles which had been agreed to by the House." The
committee was chosen by ballot and was made up exclusively of friends of
the new Constitution: Doctor Johnson of Connecticut, Alexander Hamilton,
who had returned to Philadelphia to help in finishing the work,
Gouverneur Morris, James Madison, and Rufus King. On Wednesday the
twelfth, the Committee made its report, the greatest credit for which
is probably to be given to Morris, whose powers of expression were so
greatly admired. Another day was spent in waiting for the report to be
printed. But on Thursday this was ready, and three days were devoted to
going over carefully each article and section and giving the finishing
touches. By Saturday the work of the Convention was brought to a close,
and the Constitution was then ordered to be engrossed. On Monday, the
17th of September, the Convention met for the last time. A few of
those present being unwilling to sign, Gouverneur Morris again cleverly


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Online LibraryMax FarrandThe Fathers of the Constitution; a chronicle of the establishment of the Union → online text (page 7 of 13)