Max Farrand.

The framing of the Constitution of the United States online

. (page 3 of 17)
Online LibraryMax FarrandThe framing of the Constitution of the United States → online text (page 3 of 17)
Font size
QR-code for this ebook


acquaintances, he was loved as well as respected.
Whenever he spoke, he was accorded the most
careful attention.

Roger Sherman, the mayor of New Haven,
was at sixty-six one of the older men in the con-
vention. Tall, awkward, and almost uncouth, he
was apt to be misjudged at first sight, for he was
a man of ability and of great practical wisdom.
Shoemaker, almanack-maker, lawyer, and judge
had been the successive stages of his progress.
"An able politician, and extremely artful in
accomplishing any particular object; it is re-
marked that he seldom fails." Another of his
contemporaries wrote: "he is as cunning as the
Devil, and if you attack him, you ought to know
him well ; he is not easily managed, but if he sus-
pects you are trying to take him in, you may as
well catch an Eel by the tail." He had been a
member of congress and a signer of the Declara-
tion of Independence and of the articles of
confederation.

Oliver Ellsworth, forty-two years old, was a
judge of the state supreme court who was greatly

[34]



THE CONVENTION AND ITS MEMBERS

"respected for his integrity, and venerated for
his abilities." An eloquent speaker and an able
debater, he made an excellent third in this rather
remarkable trio. A few months later the French
charge d'affaires in a report to his government
spoke of Ellsworth and Sherman as typical of
Connecticut, and went on to say: "The people of
this state generally have a national character not
commonly found in other parts of the country.
They come nearer to republican simplicity : with-
out being rich they are all in easy circumstances."

MARYLAND, in phrases very similar to those of
the original Virginia act, commissioned five
deputies, but owing to the exigencies of local
politics the final appointments were not made
until two weeks after the date set for the opening
of the convention. It was said that the first men
chosen by the legislature refused the appoint-
ment, because it would involve absence from the
state when their presence and influence were
needed to restrain a widespread movement for an
issue of paper money. At any rate, Charles
Carroll of Carrollton, Gabriel Duvall, Robert
Hanson Harrison, Thomas Sim Lee, and
Thomas Stone were elected but declined to
serve, and the delegation finally appointed was
regarded as inferior.

Dr. James McHenry, born in Ireland, had
been a surgeon during the Revolution and had

[35]



THE FRAMING OF THE CONSTITUTION

become secretary to the commander-in-chief and
Washington's friend and adviser. He had since
been a member of the state senate and a delegate
to congress. A man of only moderate ability,
he had at thirty-five achieved a prominence
somewhat beyond his merit.

Daniel of St. Thomas Jenifer, sixty-four years
old, was a man of means and of some prominence
in his state. He had been a delegate to congress,
and one of the commissioners from Maryland to
meet with Virginia in the Chesapeake-Potomac
controversy. u He is always in good humour,
and never fails to make his company pleased with
him. He sits silent in the Senate, and seems to
be conscious that he is no politician. From his
long continuance in single life, no doubt but he
has made the vow of celibacy."

Daniel Carroll and John Francis Mercer were
two younger men, the one just over and the other
under thirty, of large means, who were rising
into political prominence in the state. Both had
been delegates to congress.

Luther Martin was an able lawyer, forty-three
years old, who had been a delegate to congress
and had been appointed attorney-general of
Maryland. His career in politics was ascribed to
the influence of undesirable interests, and it was
said that he was sent to the federal convention for
the purpose of opposing the establishment of a

[36]



THE CONVENTION AND ITS MEMBERS

strong national government. He was a tiresome
speaker, perhaps a trait that he carried over from
his school-teaching days, and that fact together
with the suspicion attaching to his motives did
not insure him a cordial reception.

NEW HAMPSHIRE, according to common re-
port, failed to act because of lack of funds to
meet the expenses of its delegates, and the situa-
tion was not relieved until John Langdon offered
to pay all expenses out of his private purse.
When action finally was taken late in June, it
seemed necessary to defend or explain the state's
position. Accordingly in the act appointing
commissioners, a somewhat elaborate preamble
was adopted, recognizing the necessity of enlarg-
ing the powers of congress, and declaring the
unselfishness of the state and its willingness to
make every concession to the safety and happi-
ness of the whole. Four deputies were accord-
ingly named, any two of whom were author-
ized to represent the state, "to discuss and decide
upon the most effectual means to remedy the
defects of our federal Union."

Langdon, who was naturally the first man
named, was not yet fifty years old and had made
a large fortune in commerce. He was sometimes
referred to as the Robert Morris of his state.
He was eminently a practical man, of strong

[37]



THE FRAMING OF THE CONSTITUTION

common sense, simple and unaffected, who had
taken an active interest in the Revolution, and
was "thoroughly republican in all his tendencies."
He had been a member repeatedly and speaker
of the state house of representatives, president of
his state, and twice a delegate to congress.

Nicholas Gilman appeared to be younger than
the thirty-odd years warranted. He had served
during the Revolution, but the reputation he
achieved seems to have been that of a self-seeker,
and of one desiring to be appointed to public
offices. A year before he had been elected to
congress, and there on account of his youth and
presumptuous airs his colleagues promptly
dubbed him "Congress." Pierce said that though
there was "nothing brilliant or striking" there
was "something respectable and worthy in the
man." But the French charge d'affaires, Otto,
reported to his government that his representing
New Hampshire in the convention proved that
there was not much from which to make a choice
in that state.

John Pickering and Benjamin West were
appointed but did not attend the convention, so
that New Hampshire was represented by Lang-
don and Gilman only and they did not reach
Philadelphia until the end of July.

Nearly seventy-five names have been men-
tioned but characterizations have been attempted

[38]



THE CONVENTION AND ITS MEMBERS

of only the fifty-five who actually attended the
convention. In some respects they were a re-
markable body of men. At an average age of
forty-two or forty-three, although one-sixth
were of foreign birth, most of them had played
important parts in the drama of the Revolution,
a large majority, approximately three-fourths,
had served in congress, and practically all of
them were persons of note in their respective
states and had held important public positions.
In a time before manhood suffrage had been
accepted, when social distinctions were taken for
granted, and when privilege was the order of the
day, it was but natural that men of the ruling
class should be sent to this important convention.
Thomas Jefferson was in Paris and when he
heard of the appointments he wrote to John
Adams in London, "it really is an assembly of
demi-gods." The opinion thus expressed has
been commonly accepted since that time. The
objection to it lies in the fact that the Virginia
delegates whom Jefferson best knew were an
unusual set of men, while many of the other dele-
gates Jefferson knew only by reputation as men
of prominence in their states. As a matter of
fact, Virginia had set the fashion, which the coun-
try approved, and to be a delegate to Phila-
delphia became a desired honor. Appointments
were accordingly sought and obtained in several

[39]



THE FRAMING OF THE CONSTITUTION

instances by men of political influence. In other
cases appointments were due to less worthy
motives, approaching what might be termed cor-
ruption. In a few cases appointments were
made for convenience' sake to fill up the state
delegation. A contemporary, who was frankly
in the opposition, wrote: "I do not wish to de-
tract from their merits, but I will venture to
affirm, that twenty assemblies of equal number
might be collected, equally respectable both in
point of ability, integrity, and patriotism. Some
of the characters which compose it I revere;
others I consider as of small consequence, and a
number are suspected of being great public de-
faulters, and to have been guilty of notorious
peculation and fraud, with regard to public
property in the hour of our distress."

Doubtless the truth lies between the two opin-
ions. Great men there were, it is true, but the
convention as a whole was composed of men such
as would be appointed to a similar gathering at
the present time : professional men, business men,
and gentlemen of leisure ; patriotic statesmen and
clever, scheming politicians; some trained by
experience and study for the task before them,
and others utterly unfit. It was essentially a
representative body, taking possibly a somewhat

i Ford, P. L., Pamphlets on the Constitution of the United
States, p. 115.

[40]



THE CONVENTION AND ITS MEMBERS

higher tone from the social conditions of the time,
the seriousness of the crisis, and the character of
the leaders.



CHAPTER III

THE DEFECTS OF THE CONFED-
ERATION

The convention had been called to meet in
Philadelphia and the delegates had been ap-
pointed. For what purpose? The report of
the Annapolis convention had recommended a
thorough investigation into the defects of the
confederation and the development of a plan for
remedying those defects, and the resolution of
congress had specified "for the sole and express
purpose of revising the Articles of Confedera-
tion." After the experience of over a hundred
years under a better system, it is easy for us to
criticise the articles of confederation, for accord-
ing to present-day standards they may be con-
demned as utterly unfit, unworkable, and even as
"vicious" in principle. It is accordingly assumed
that the federal convention regarded them in
that light and, considering them hopeless of
amendment, had started afresh to construct a new
instrument of government. This is quite mis-
leading. To the men of that time the articles of
confederation appeared in no such light. His
contemporaries might not have been willing to
concur in Jefferson's extravagant statement that



THE DEFECTS OF THE CONFEDERATION

a comparison of our government with the govern-
ments of Europe "is like a comparison of heaven
and hell. England, like the earth, may be
allowed to take the intermediate station." Yet
John Jay seemed to regard it as somewhat of a
concession to admit that "our federal government
has imperfections, which time and more experi-
ence will, I hope, effectually remedy." Even
Washington, who of all men had suffered the
most from the intolerable inefficiency of congress,
had a good word to say for the government. Nor
is it sufficient to accept the apology of John
Marshall that, if the articles of confederation
really preserved the idea of union until the nation
adopted a more efficient system, "this service
alone entitles that instrument to the respectful
recollection of the American people." The form
of government that had been established was an
experiment, an attempt to solve the problem of
a confederated republic, and while no one would
have claimed that it was perfect most men would
have agreed with Jefferson that "with all the
imperfections of our present government, it is
without comparison the best existing or that ever
did exist."

If such was the contemporary point of view, it
is evident that the wording employed in the cre-
dentials of the delegates and in the resolution of
congress was no mere formal phraseology; the

[43]



THE FRAMING OF THE CONSTITUTION

federal convention was really called for the
"express purpose of revising the Articles of Con-
federation" and rendering them "adequate to the
exigencies of government, and the preservation
of the Union." To appreciate the work of the
federal convention, it is essential to understand
the task before it, as the delegates themselves
comprehended it. Accordingly it is necessary to
divest ourselves of preconceived ideas and preju-
dices due to modern misinterpretation, and to
try to determine what the men of the time had in
mind when they spoke of the defects "which
experience hath evinced that there are ... in
the present confederation." Fortunately the
problem is not a very difficult one to solve.
Interest was keen, the seriousness of the coun-
try's situation was appreciated and the topic was
frequently broached in correspondence between
men in all sections. Some of the letters of the
better known characters have been preserved to
us, and from these we can ascertain fairly
accurately the state of public opinion at that time.
Early criticisms of the confederation were
vague; they might almost be termed desultory.
But as time passed and interest increased, more
careful thought was given to the subject, with a
resultant increase in number and definiteness of
the defects noted. But the members of the fed-
eral convention would only deal with those

[44]



THE DEFECTS OF THE CONFEDERATION

defects in the confederation of which they knew.
The present study has therefore been limited
.strictly to the writings of the delegates them-
selves prior to the time of meeting in Phila-
delphia, and to the records of proceedings of
which some of the members could not fail to have
had knowledge, such as the journals of congress.
It has already been shown that the wretched
condition of the government finances, and the
unsatisfactory state of foreign and domestic
trade, were responsible for the calling of the
Philadelphia convention. The two subjects were
closely connected. In the matter of trade a uni-
form policy was necessary, and that uniformity
could only be obtained by granting to the central
government full power over trade and commerce,
both foreign and domestic. This meant of course
that duties would be laid and something in
the way of revenue would result. It was not
expected that this would be sufficient, and if the
credit of the United States was to be maintained,
further and adequate powers of obtaining
revenue by direct and indirect taxation must be
provided. Whatever was done, some more equit-
able method of distributing the burden of taxa-
tion must be found than the unsatisfactory
system of requisitions based upon undetermin-
able land values. Many thoughtful observers
also saw that restrictions upon the issuing of

[46]



THE FRAMING OF THE CONSTITUTION

paper money were necessary, and that something
more uniform than the variable state currencies
was desirable. In view of subsequent events, it
is interesting to notice that Madison and Jeffer-
son were in favor of empowering the central
government to establish a national bank.

If it was exasperating to find themselves over-
reached in matters of international trade, it was
humiliating to find themselves too weak to force
the British to live up to the terms of the Treaty
of Paris of 1783, and it was positively disgraceful
to be unable to compel the individual states to
observe the provisions of that or any other
treaty that might be made. 1 Without authority
to require the states to regard the principles of

i "There is a story, at one time commonly repeated, which illus-
trates the tenderness of the Virginia conscience on the subject of
the repudiation of English debts during the period 1783-1789.
A Scotchman, John Warden, a prominent lawyer and good classi-
cal scholar, but suspected rightly of Tory leanings during the
Revolution, learning of the large minority against the repeal of
laws in conflict with the treaty of 1783 (i.e., especially the laws
as to the collection of debts by foreigners), caustically remarked
that some of the members of the House had voted against paying
for the coats on their backs. The story goes that he was sum-
moned before the House in full session, and was compelled to beg
their pardon on his knees, but as he rose, pretending to brush the
dust from his knees, he pointed to the House and said audibly,
with evident double meaning, 'Upon my word, a dommed dirty
house it is indeed.' The Journal of the House, however, shows
that the honor of the delegates was satisfied by a written assur-
ance from Mr. Warden that he meant in no way to affront the
dignity of the House or to insult any of its members." Grigsby,
Virginia Convention of 1788, II, 86.

[46]



THE DEFECTS OF THE CONFEDERATION

international law and incompetent even to punish
piracy or felony on the high seas, it was truly a
pitiable spectacle that the United States pre-
sented. When a contemporary who had traded
with various countries could say that he found
"this country held in the same light by foreign
nations as a well-behaved negro is in a gentle-
man's family," 2 there need be little wonder that
this newly independent and sensitive people
should demand reforms that would tend to dispel
some of the contempt inspired abroad. The least
that could be done was to establish a strong cen-
tral government which should have control of all
foreign relations.

These things were self-evident and there seems
to have been a general unanimity of sentiment in
favor of the reforms proposed. If those reforms
were carried out, the situation would have been
somewhat relieved, but the heart of the trouble
would not have been reached. A fundamental
difficulty of the union was to be found in the inde-
pendence and excessive power of the individual
states. Concrete instances of this are to be
noticed in the matters thus far considered, which
involved not merely trespassing by the states
upon one another's rights, but even directly dis-
regarding the articles of confederation. Agree-

2 Elliot, Jonathan, Debates in the Several State Conventions on
the adoption of the Federal Constitution, II, 34.

[47]



THE FRAMING OF THE CONSTITUTION

ments between the states were in direct contra-
vention of that instrument. So also were the
dealings with the Indians which several of ,the
states indulged in to the detriment of any uni-
form policy, so important in treating with uncivi-
lized peoples. But the blame for this encroach-
ment upon federal authority was not to be laid
at the door of the states alone. The confedera-
tion did not draw the line sharply between state
and federal powers, and even in the field open
to congressional action the government was fre-
quently too weak to move. Self-preservation,
rather than mere selfishness, actuated the states
in some instances. But whatever justification
there might be, it was greatly to be desired that a
negative or some check upon state legislation
should be vested in the central government.

There were some matters requiring greater
uniformity of treatment and procedure than
could be obtained from independent state action.
Such were naturalization, bankruptcy, education,
inventions, and copyright. Upon these subjects,
accordingly, congress ought to be authorized to
legislate. For somewhat different reasons other
matters were just as clearly beyond the scope of
state action and in these also the central govern-
ment should be given power : To define and pun-
ish treason, to establish and exercise jurisdiction
over a permanent seat of government, to hold and

[48]



THE DEFECTS OF THE CONFEDERATION

govern the western territory that had been ceded
by the states, to provide for the establishment of
new states and their admission into the union, to
maintain an efficient postal service and, some
said, to make internal improvements. If such
fields of action were granted to the central gov-
ernment, the states would still be free to exercise
sufficient authority in local matters. But experi-
ence had also shown that occasion might arise
when a state would welcome a strong hand to
assist it in preserving order within its boundaries.
Shays's rebellion had taught a much needed les-
son. It was not sufficient to place the state militia
under some central control. The central govern-
ment must be empowered to maintain an efficient
army and navy to protect the states against inter-
nal disorders, as well as against external dangers.
In other words, the authority of the federal gov-
ernment was to be effective in time of peace as
well as in time of war. As a further safeguard
for the states in maintaining their republican in-
stitutions, a guarantee of their constitutions and
laws was believed to be essential.

Some of the more superficial observers were
inclined to ascribe the difficulties of the confed-
eration to the defective organization of the gov-
ernment. Montesquieu, whose writings were
taken as political gospel, had shown the absolute
necessity of separating the legislative, executive,

[49]



THE FRAMING OF THE CONSTITUTION

and judicial powers. There ought, therefore, to
be a separate executive which should be able to
take the initiative when occasion demanded,
which should be capable of action in foreign rela-
tions and which, either with or without a council,
might have the power of appointment and the
right of veto. There ought to be an organized
federal judiciary which should have, in addition
to that developed under the articles of confedera-
tion, jurisdiction in matters relating to foreigners
or people of other states. And the composition
of congress should be entirely changed: there
ought to be two houses and a council of revision ;
the method of voting by states and of requiring
nine votes ought not to be continued ; the number
of members should be greater and the people
ought to be directly represented; the sessions
should be definite and not so frequently shifted
from one place to another; attendance should be
compulsory; the members should be prohibited
from holding other offices ; and the terms of office
and the compensation of members ought to be
such as would attract the best men in the country.
While recognizing the justice of these com-
plaints and the wisdom of the reforms proposed,
more thoughtful observers realized that another
and perhaps the fundamental weakness of the
confederation was the inability of congress to
enforce its demands. Under existing conditions

[50]



THE DEFECTS OF THE CONFEDERATION

it might be sufficient to render the federal con-
stitution superior to state constitutions and to
give the central government a negative or some
check upon state legislation, together with the
right and power of coercion. But there were a
few who had studied the situation who saw that
the changes desired were so far-reaching that, if
they were carried out, the confederation would
be transformed. They accordingly favored a
central government acting directly upon the
people with power to compel obedience.

The attempt to obtain amendments to the arti-
cles of confederation had taught by bitter experi-
ence that the objection of a single state was
sufficient to block the will of all the others. It
was evidently necessary, then, that provision
should be made for amendments to the new con-
stitution with the consent of less than the whole
number of states. It was also felt that this same
principle ought to be applied in the modifications
proposed in the existing instrument, and those
who were in favor of a government acting
directly upon the people advocated as a first step
in this process that the changes to be made in the
constitution should be ratified by the people
rather than by the state legislatures.

The points that have been noted represent
roughly what the members of the convention
seem to have had in mind at the time of their

151]



THE FRAMING CF THE CONSTITUTION

meeting in Philadelphia when they spoke of the
defects of the confederation. It would seem
probable that when such men as Madison and
Hamilton attempted to point out the defects of
the confederation, they would natural!} 7 include
everj^thing requisite to good government that
was lacking in the articles of confederation. But
the defects that have been mentioned are much
more comprehensive than those which were noted
by any one person. Even Madison's summary
prepared shortly before the convention met,
with a long experience in the congress of the
confederation and after a careful study of all
the confederations known to history is only
approximately complete.

The specific task which the convention thus


1 3 5 6 7 8 9 10 11 12 13 14 15 16 17

Online LibraryMax FarrandThe framing of the Constitution of the United States → online text (page 3 of 17)