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Farrand, Max

The framing of the

Constitution of the

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THE FRAMING OF THE CONSTITUTION
OF THE UNITED STATES



THE FRAMING OF THE
CONSTITUTION

OF THE UNITED STATES



BY

MAX FARRAND




NEW HAVEN AND LONDON
YALE UNIVERSITY PRESS



Copyright 1913 by Yale University Press

All rights reserved. This book may not be reproduced, in
whole or in part, in any form (beyond that copying permitted by
Sections 107 and 108 of the U.S. Copyright Law and
except by reviewers for the public press), without written
permission from the publishers.

Printed in the United States of America.
ISBN: 0-300-00079-0 (paper)
42 41 40 39



TO
A- LAWRENCE LOWELL



PREFACE

For over ten years the writer has been engaged
in collecting and editing the material available
upon the work of the convention that framed the
constitution of the United States. Collating of
texts is a wearisome and often merely a mechani-
cal task, but in the process the editor becomes
more or less familiar with the content of the docu-
ments. In the present instance the form in
which the work finally shaped itself required a
knowledge of the proceedings of the convention
not merely as a whole, but from day to day, and
it necessitated a f amiliarity with the thought and
expressions of the individual members. When to
this was added an acquaintance with the person-
alities of the more important delegates, a mental
picture of the convention was formed which de-
veloped into a conviction as to what the delegates
were trying to do and what they actually accom-
plished.

It is with no idea of attempting the final his-
tory of the formation of the constitution that the
present book is written. If there be any truth
in the epigrammatic definition that "history is
past politics," it is equally true that, in the case

[vii]



PREFACE

of an institution still existing, history is present
politics as well. So long as it remains the instru-
ment under which the government of the United
States is conducted, it is doubtful that any one,
any American at least, can write the final word
regarding the framing of our constitution.

NOT is this intended to be a complete history.
It is a brief presentation of the author's personal
interpretation of what took place in the federal
convention. It is merely a sketch in outline, the
details of which each student must fill out
according to his own needs.

This book is founded upon the work the author
has already referred to as edited by himself,
The Records of the Federal Convention (New
Haven, Yale University Press, 1911. 3 vols.).
In the writing of it scarcely anything else has
been used. The Records are so arranged as to
render most of the citations easily found, and
accordingly, with few exceptions, all footnote
references have been omitted.

During the years that the work of editing and
writing has been in progress, the author has pre-
sented this subject for study to classes, both
graduate and undergraduate, at different institu-
tions. To the members of those classes who have
endured the exploitation of his pet theories and
ideas, who have themselves suggested new points
of view, and who have stimulated him to his best

[* i
VUl]



PREFACE

efforts, the author would acknowledge his grate-
ful indebtedness.

Mr. E. Byrne Hackett, in his capacity as
manager of the Yale University Press, has taken
the greatest interest in the mechanical make-up
of this book. In a personal and purely friendly
way he also read the entire manuscript and
made suggestions which resulted in its better-
ment. For his co-operation the author is heartily
appreciative.

M. F.

New Haven, November 8, 1912.



CONTENTS

Preface vii

CHAPTER PAGE

I. The Calling of the Federal Convention . 1

II. The Convention and Its Members . . 14

III. The Defects of the Confederation . . 42

IV. The Organization of the Convention . 54

V. The Virginia Plan 68

VI. The New Jersey Plan 84

VII. The Great Compromise 91

VIII. After the Compromise 113

IX. The Committee of Detail 124

X. Details and Compromises 134

XI. The Election of the President ... 160

XII. Finishing the Work 176

XIII. The Completed Constitution .... 196

APPENDIX :

I. The Articles of Confederation . . . 211

II. The Virginia Plan 225

III. The New Jersey Plan 229

IV. The Constitution of the United States . 233

V. The Amendments to the Constitution . 252

Index 261



THE FRAMING OF THE CONSTITUTION
OF THE UNITED STATES



CHAPTER T

THE CALLING OF THE FEDERAL

CONVENTION

Democratic government was on trial before
the world. Thirteen British colonies had
asserted and established their independence be-
cause they declared the form of government
under which they had been living was destructive
of their "unalienable rights" of "life, liberty and
the pursuit of happiness." Each of those colon-
ies had established a government of its own, and
together they had formed a union of 'The United
States of America" by means of certain articles
of confederation. The individual state govern-
ments were proving fairly satisfactory, but the
union was not. Its inadequacy had become more
and more evident as the war for independence
had continued and the strain of the struggle had
grown harder to endure. As long as the war was
in progress, the states had held together through
sheer necessity; but as soon as the war was over,
the selfishness of the individual states was assert-
ing itself and the union was in danger of disinte-
gration. The thirteen united states of America
had renounced their allegiance to Great Britain,



THE FRAMING OF THE CONSTITUTION

because the latter country no longer governed
them well, and it now appeared as if they were
unable to govern themselves. If the people of
the United States were to prove their right "to
assume among the Powers of the earth, the sepa-
rate and equal station to which the Laws of
Nature and of Nature's God entitle them," they
must show themselves capable of establishing and
maintaining an efficient government. To justify
themselves before the world and to justify them-
selves in their own eyes, an effective union was
essential.

The articles of confederation represented the
first essay in united government that the newly
independent states had made. When their con-
gress in June, 1776, appointed a committee to
draft a declaration of independence, it appointed
another committee to prepare a "form of con-
federation," and the latter committee made its
report shortly after the Declaration of Independ-
ence was adopted. The difficulty of establishing
a union may be inferred from the fact that the
plan submitted by the committee was the subject
of intermittent discussion in congress for over a
year and when the amended plan was referred to
the states for ratification it was over three years
before the approval of all could be secured.
Although the articles of confederation were thus
not formally in operation until 1781, congress



CALLING OF THE FEDERAL CONVENTION

seems to have followed a procedure in accordance
with them, so that the experience of the confed-
eration extended over a longer time than the
official dates indicate, and really began with the
establishment of independence.

The one central organ of the newly established
government was a congress, which might well
have been termed a congress of states : in it all the
states were upon an equal footing, each with a
single vote, and the delegation from each state
was composed of not less than two nor more than
seven members, who were appointed annually in
whatever way the legislature of each state
directed, who were maintained at the expense of
their respective states, and who were subject to
recall at any moment. To the congress thus con-
stituted quite extensive powers were granted, but
with two important limitations : none of the more
important powers could be exercised "unless nine
States assent to the same," which was equivalent
to requiring a two-thirds vote; and when a deci-
'sion had been reached there was nothing to
compel the states to obedience except the mere
declaration in the articles that "every State shall
abide by the determinations of the United States
in Congress assembled." Executive there was
none, beyond the committees which the congress
might establish to work under its own direction,
and the only federal courts were such as congress

[3]



THE FRAMING OF THE CONSTITUTION

might appoint for the trial of piracy and felony
on the high seas and for determining appeals in
cases of prize capture.

Under such conditions the decisions of con-
gress were little more than recommendations.
This was amply shown in the all-important
matter of obtaining funds. The articles pro-
vided that the national treasury should "be
supplied by the several States, in proportion to
the value of all land within each State, granted
to or surveyed for any person." Congress was
to determine the amount of money needed and to
apportion to each state its share. Congress did
so, but the states honored the requisitions exactly
to the extent that each saw fit, and congress had
no power and no right to enforce payment. What
was the result? If one may judge by the com-
plaints that were entered, it was more profitable
to disobey than to obey. In the dire straits for
funds to which it found itself reduced, congress
took advantage of the lack of information on
land values to juggle with the estimates, so as to
demand more of those states that had previously
shown a willingness to pay.

The financial situation was so serious that
early in 1781, before the articles had been finally
ratified, congress had already proposed to the
states an amendment authorizing the levy of a
five per cent duty upon imports and upon goods

[4]



CALLING OF THE FEDERAL CONVENTION

condemned in prize cases. The amendment was
agreed to by twelve states. But another weak-
ness of the confederation was here revealed, in
that the articles could only be amended with the
consent of all of the thirteen states. The refusal
of Rhode Island was sufficient to block a measure
that was approved of by the twelve others. In
1783 congress made another attempt to obtain a
revenue by requesting authority for twenty-five
years to levy certain duties, and by recommend-
ing for the same term of twenty-five years
that the states should contribute in proportion
$1,500,000 annually, the basis of apportionment
being changed from land values to numbers of
population, in which three-fifths of the slaves
should be counted. In three years only nine of
the states had given their consent and some of
those had consented in such a way as would have
hampered the effectiveness of the plan. It was,
however, the only relief in sight and in 1786
congress made a special appeal to the remaining
states to act. Before the end of the year, all of
the states had responded with the exception of
New York. Again the inaction of a single state
effectually blocked the will of all the others.

Matters of commerce were inseparably asso-
ciated with those of finance and were at this time
of equal moment. In 1784 congress made an
appeal to the states in which it was said: "The

[5]



\



THE FRAMING OF THE CONSTITUTION

situation of Commerce at this time claims the
attention of the several states, and few objects of
greater importance can present themselves to
their Notice. The fortune of every Citizen is
interested in the success thereof; for it is the
constant source of wealth and incentive to indus-
try; and the value of our produce and our land
must ever rise or fall in proportion to the pros-
perity or adverse state of trade." The people of
the United States seemed to be surprised and
even resentful that their political independence
had resulted in placing them outside of the
British colonial system. As British colonists
they had protested against the restrictions of the
navigation acts, but they found those acts still
more obnoxious when enforced against them-
selves as foreigners. Trade was adjusting itself
to the new conditions and seeking new outlets,
but until this had developed to a sufficient extent
to make itself felt, the only possible policy,
according to the prevailing conceptions of the
time, was that of retaliation. The purpose of
retaliation was to force other countries, and
Great Britain in particular, to make concessions
in favor of the United States. It was for this
purpose that congress appealed to the states in
1784. It was virtually a navigation act for
which power was requested and only for the term
of fifteen years. All of the states responded, but

[6]



CALLING OF THE FEDERAL CONVENTION

with so many conflicting qualifications and
conditions that the attempt was again a failure.

Pending a grant of power to congress over
matters of commerce, the states acted individu-
ally. A uniform policy was necessary, and while
a pretense was made of acting in unison to
achieve a much desired end, it is evident that
selfish motives frequently dictated what was
done. Any state which enjoyed superior condi-
tions to a neighboring state was only too apt to
take advantage of that fact. Some of the
states, as James Madison described it, "having
no convenient ports for foreign commerce, were
subject to be taxed by their neighbors, through
whose ports their commerce was carried on.
New Jersey, placed between Philadelphia and
New York, was likened to a cask tapped at both
ends ; and North Carolina, between Virginia and
South Carolina, to a patient bleeding at both
arms." The Americans were an agricultural and
a trading people. Interference with the arteries
of commerce was cutting off the very life-blood
of the nation, and something had to be done.
The articles of confederation provided no
remedy, and it was evident that amendments to
that document, if presented in the ordinary way,
were not likely to succeed. Some other method
of procedure was necessary, and a promising
way had already opened.

[7]



THE FRAMING OF THE CONSTITUTION

Virginia and Maryland had come to a working
agreement regarding the navigation of Chesa-
peake Bay and some of its tributary waters, and
those two states had requested the co-operation
of Pennsylvania and Delaware. This whole pro-
ceeding was distinctly unconstitutional, for the
articles of confederation specified that all such
agreements must receive the consent of congress
and that had not been obtained. But whether
illegal or not it seemed to be an effective way of
working, and in 1786 it was tried on a larger
scale. Early in that year Virginia appointed
commissioners "to meet such commissioners as
may be appointed in the other states of the
Union, at a time and place to be agreed on, to
take into consideration the trade of the United
States." This proposal for a general trade con-
vention seemed to meet with approval, and the
Virginia commissioners, two of whom were
James Madison and Edmund Randolph, then
named Annapolis and the first Monday in
September, 1786, as the place and the time.

In spite of the apparently favorable attitude
towards it, when the time for the convention
arrived only five states were represented. At
least four other states had appointed com-
missioners, but the individuals had not hastened
their attendance. With so small a number pres-
ent it was impossible for the convention to accom-

[8]



CALLING OF THE FEDERAL CONVENTION

plish the purpose of its meeting; but with the
advance in public opinion, the commissioners did
not hesitate to recommend another convention of
wider scope. The French representative in this
country wrote home to his government, what was
evidently whispered among the elect, that there
was no expectation and no intention that any-
thing should be done by the convention beyond
preparing the way for another meeting, and that
the report was hurried through before sufficient
states were represented to be embarrassing.

Alexander Hamilton was greatly interested in
this whole movement for the betterment of con-
ditions ; he took a leading part in the Annapolis
trade convention, and is supposed to have drafted
its report. Whether or not there is any truth in
the assertion above, that Hamilton thought it
advisable to conceal his purposes, there is no
doubt that the Annapolis convention was an all-
important step in the progress of reform. Its
recommendation was the direct occasion of the
gathering of the convention that framed the
constitution of the United States.

The recommendation, which the Annapolis
delegates made, took the form of a report to the
legislatures of their respective states, in which
they referred to but did not enumerate "impor-
tant defects in the System of the Fcederal Gov-
ernment," which were "of a nature so serious as,

[9]



THE FRAMING OF THE CONSTITUTION

... to render the situation of the United States^
delicate and critical, calling for an exertion of
the united Virtues and Wisdom of all the Mem-
bers of the Confederacy." They were accord-
ingly "of Opinion, that a Convention of Depu-
ties from the different States, for the special and
sole purpose of entering into this investigation
[of determining what the defects were] and
digesting a Plan for supplying such defects"
was the best method of procedure. To give their
proposal a more concrete form they finally sug-
gested that their respective states should "use
their endeavours to procure the concurrence of
the other States, in the Appointment of Com-
missioners to meet at Philadelphia on the second
Monday in May next, to take into Consideration
the situation of the United States to devise such
further Provisions as shall appear to them neces-
sary to render the Constitution of the Foederal
Government adequate to the exigencies of the
Union; and to report such an Act for that pur-
pose to the United States in Congress Assem-
bled, as when 'agreed to by them and afterwards
confirmed by the Legislatures of every State' will
effectually provide for the same."

The Virginia legislature acted promptly upon
this recommendation and, as no method was
specified, very naturally followed its practice in
providing for the representation of the state

[10]



CALLING OF THE FEDERAL CONVENTION

in congress by appointing a similar delegation
to go to Philadelphia. This precedent of
appointing a delegation similar to its delegation
in congress was followed by the other states.
New Jersey took action almost at the same time
as Virginia, and actually named her deputies in
advance of that state. Within a few weeks,
Pennsylvania, North Carolina, Delaware, and
Georgia had also made appointments. As yet
congress had not given its approval of the plan,
and many people in the United States doubted
that such a meeting could accomplish anything
without having the sanction of the only body
authorized by the articles of confederation to
propose amendments. This last obstacle was
removed, however, on February 21, 1787, when
congress adopted a resolution in favor of a con-
vention, and embodied the suggestions of the
Annapolis report as to time and place.

Before the time fixed for the meeting of the
Philadelphia convention, or shortly after that
date, all of the other states had appointed depu-
ties with the exception of New Hampshire and
Rhode Island. New Hampshire was favorably
disposed towards the meeting, but owing to local
conditions failed to act before the convention
was well under way. Its deputies, however,
arrived in time to share in some of the most
important proceedings. Rhode Island alone



THE FRAMING OF THE CONSTITUTION

refused to take part, though a letter signed by a
committee of merchants, tradesmen, and others,
was sent to the convention expressing their
regret at Rhode Island's failure to be represented
and pledging their influence to have the result
of the deliberations approved and adopted by
the state.

The federal convention was thus summoned
to meet in Philadelphia on the second Monday
of May, 1787. It was authorized by congress,
and it was shared in by twelve of the thirteen
states comprising the confederation. Whatever
complex of causes there may have been, the
sequence of events resulting in this convention
was, as outlined, the apparent impossibility of
obtaining from the states the necessary amend-
ments to vest in congress adequate powers in
taxation and commerce, the calling of a trade
convention, and then the calling of * general
convention.



CALLING OF THE FEDERAL CONVENTION



NOTE

THE THIRTEEN UNITED STATES WITH DATES OF
THEIR FIRST CONSTITUTIONS

New Hampshire . . . 1776

South Carolina .... 1776

Rhode Island 1 .... 1776

Virginia ..... 1776

New Jersey .... 1776

Delaware ..... 1776

Pennsylvania .... 1776

Connecticut 2 .... 1776

Maryland .... 1776

North Carolina .... 1776

Georgia ..... 1777

New York .... 1777

Massachusetts .... 1780

1 Continued under charter of 1663.

2 Continued under charter of 1662.



[18]



CHAPTER II

THE CONVENTION AND ITS

MEMBERS

VIRGINIA had been the first state to act upon
the suggestion of the Annapolis report and it
followed its practice in providing for the state's
representation in congress. The appointment
of seven deputies was ordered by joint ballot of
both houses of the legislature, any three of whom
were authorized to join with the deputies from
other states "in devising and discussing all such
Alterations and farther Provisions as may be
necessary to render the Foederal Constitution
adequate to the Exigencies of the Union and in
reporting such an Act for that purpose to the
United States in Congress as when agreed to by
them and duly confirmed by the several States
will effectually provide for the same." It will be
noticed that the wording of this appointment is
very similar to that in the Annapolis report.
The modifications are slight and if they have any
significance, they indicate a willingness on the
part of Virginia to render the work of the
convention effective.

At the head of its deputation Virginia placed
the leading citizen of the state, and the leading

[14]



THE CONVENTION AND ITS MEMBERS

citizen of the United States as well, George
Washington. He was then fifty-five years of
age and at the height of his popularity. The suc-
cessful outcome of the Revolution had effectually
silenced all criticism of his conduct of the
war and his retirement to Mount Vernon had
appealed to the popular imagination. The grati-
tude of a people, as yet unmixed with envy and
undiminished by the rancor of party bitterness,
placed him upon the very pinnacle of public
favor. The feeling towards him was one of devo-
tion, almost of awe and reverence. His presence
in the convention was felt to be essential to the
success of its work and, much against his will,
Washington was finally persuaded to accept the
appointment.

Patrick Henry was the second on the list, but
declined to serve. The next year he came out in
bitter opposition to the constitution. Dr.
Grigsby, the historian of the Virginia state con-
vention of 1788, reports that when asked why he
had not taken his seat in the federal convention
and helped to make "a good Constitution instead
of staying at home and abusing the work of his
patriotic compeers? Henry, with that magical
power of acting in which he excelled all his
contemporaries, and which before a popular
assembly was irresistible, replied: *I smelt a
Rat.' To the vacancy caused by Henry's

[15]



THE FRAMING OF THE CONSTITUTION

refusal the governor appointed Dr. James


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Online LibraryMax FarrandThe framing of the Constitution of the United States → online text (page 1 of 17)