BIBLIOGRAPHIES. - P. L. Ford, Bibliography and Reference List of the Constitution; Justin Winsor, Narrative and Critical History, VII. 256-266; W. E. Foster, References to the Constitution, 15, 21; Channing and Hart, Guide, secs. 154-156; A. B. Hart, Federal Government, secs. 38, 469.

HISTORICAL MAPS. - As in sec. 48 above, sec. 69 below.

GENERAL ACCOUNTS. - J. B. McMaster, People of the United States, I. 416-524; R. Hildreth, United States, III. 482-546; T. Pitkin, United States, II. 218-316; H. C. Lodge, Washington, II. ch. I.; J. Story, Commentaries, secs. 272-372; J. Schouler, United States, I. 31-70; Geo. Tucker, United States, I. 347-383; Justin Winsor, Narrative and Critical History, VII. ch. iv.; H. Von Hoist,Constitutional History, I. 47-63; J. S. Landon, Constitutional History, 59-96; F. A. Walker, Making of the Nation, chs. ii., iii.

SPECIAL HISTORIES. - G. T. Curtis, Constitutional History, I. chs. xv.- xxxvi. (History of the Constitution, III. 232-604); Geo. Bancroft, United States, last revision, VI. 195-462 (History of the Constitution, I. 267-278, II. 1-47, 144, 350); William C. Rives, James Madison, II. 313-633; H. L. Carson, One Hundredth Anniversary of the Constitution; J. B. McMaster, Pennsylvania and the Federal Constitution; John Fiske, Critical Period, 183-350; S. H. Gay, Madison, 88-127; J. C. Hamilton, Republic, III. 236-569; J. H. Robinson, Sources of the Constitution; S. B. Harding,Federal Constitution in Massachusetts; C. E. Stevens, Sources of the Constitution; C. Borgeaud, Adoption and Amendment of Constitutions; the various State histories.

CONTEMPORARY ACCOUNTS. - Journal of the Convention, Madison's notes, Yates's notes, Luther Martin's letter, proceedings of State conventions, - all in Elliot's Debates (5 vols.); H. D. Gilpin,Papers of James Madison, vols. II., III.; brief references in the works of Washington, Madison, Hamilton, and Jefferson; letters in the biographies of Madison, Hamilton, Rufus King, Gerry; The Federalist. - Reprints in P. L. Ford, Pamphlets on the Constitution of the United States, and Essays on the Constitution; American History told by Contemporaries, III.; Library of American Literature, VI.


[A convention suggested.] [Annapolis Convention.] [Action of Congress.]

That Congress did not possess the confidence of the country was evident from the failure of all its amendments. It had, therefore, been suggested first by Hamilton in 1780, later by Tom Paine in his widespread pamphlet "Public Good," that a convention be specially summoned to revise the Articles of Confederation. The initiative in the movement was finally taken by the States. In 1786 the intolerable condition of internal commerce caused Virginia to suggest to the sister States that a conference be held at Annapolis. The few delegates who appeared separated, after recommending that there be held "a convention of delegates from the different States ... to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate." Congress was no longer able to resist the movement: on Feb. 1, 1787, it resolved that a convention be held "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to by Congress and confirmed by the States, render the federal government adequate to the exigencies of government and the preservation of the union."

[Convention assembled.]

By May, 1787, delegates to the proposed convention had been chosen in all the States except New Hampshire and Rhode Island. Many of the ablest and most experienced public men were included. Among them were Francis Dana and Elbridge Gerry of Massachusetts, Alexander Hamilton of New York, Benjamin Franklin of Pennsylvania, and James Madison and George Washington of Virginia. The convention was the most distinguished body which had ever assembled in America; if its work could not command public confidence, there was no hope for the Union.


[Task of the convention.]

When on May 25, 1787, the convention assembled at Philadelphia, its task, under the call of Congress, was limited to the preparation of amendments to the old Confederation. The first formal resolution to which it came after organization reads as follows: "That a national government ought to be established, consisting of a supreme legislature, executive, and judiciary." The convention from the beginning was evidently resolved to recommend a new, elaborate, and powerful form of government. The key to this action is found in the history of the twelve years from 1775 to 1787. The country had tried a revolutionary, irresponsible, form of government, and it had not worked well. It had tried a union of sovereign States; neither the Union nor the States had prospered. The time had come to change the government in form, in powers, and in the means of carrying out its powers. The States must be held to their duties; Congress must be restrained; local quarrels must cease; revenue must be secured, commerce protected, and treaties guaranteed; the West must be saved, and insurrections put down. The first duty of the convention was to repair the errors of the Confederation.

[Want of authority.]

Americans have become accustomed to look upon the Constitution as a kind of political revelation; the members of the convention themselves felt no sense of strength or inspiration. They had no authority of their own. Their work must be submitted for the ratification of States which had been unable to agree upon a single modification of the articles. They must encounter the jealousy of Congress and the prejudices of the people. While the convention sat, a rumor went abroad that they would report in favor of a monarchy.

In order to bring the discussion to a focus, the Virginia delegates had agreed upon a plan drawn by Madison, who had been in communication with Washington; it was presented by Edmund Randolph. This plan in the end formed the basis of the constitution as adopted.


No sooner had debate actually begun than the convention proved to be divided into many factions. Some members, like Patterson, were on principle opposed to a strong government; others, like Hamilton, desired to break down the State boundaries, and to create a centralized republic. Still more distinct was the opposition between the large States and the small: the former inclined to a representation based on population; the latter insisted that the States should be equal units. Again, the trading States - New England, New York, and Maryland - were inclined to grant large powers over commerce; the agricultural States, particularly Virginia, wished to see commerce regulated still by the States in part. Another line of division was between the slaveholding and the non-slaveholding States; here the champions were Massachusetts on one side, and South Carolina on the other. Throughout the convention these various elements combined and recombined as their interests seemed affected. Although there were no permanent parties, the members of which regularly voted together, there was disagreement and disappointment from the beginning to the end.


[American experience.]

Another popular delusion with regard to the Constitution is that it was created out of nothing; or, as Mr. Gladstone puts it, that "It is the greatest work ever struck off at any one time by the mind and purpose of man." The radical view on the other side is expressed by Sir Henry Maine, who informs us that the "Constitution of the United States is a modified version of the British Constitution ... which was in existence between 1760 and 1787." The real source of the Constitution is the experience of Americans. They had established and developed admirable little commonwealths in the colonies; since the beginning of the Revolution they had had experience of State governments organized on a different basis from the colonial; and, finally, they had carried on two successive national governments, with which they had been profoundly discontented. The general outline of the new Constitution seems to be English; it was really colonial. The President's powers of military command, of appointment, and of veto were similar to those of the colonial governor. National courts were created on the model of colonial courts. A legislature of two houses was accepted because such legislatures had been common in colonial times. In the English Parliamentary system as it existed before 1760 the Americans had had no share; the later English system of Parliamentary responsibility was not yet developed, and had never been established in colonial governments; and they expressly excluded it from their new Constitution.

[State experience.]

They were little more affected by the experience of other European nations. Just before they assembled, Madison drew up an elaborate abstract of ancient, mediaeval, and existing federal governments, of which he sent a copy to Washington. It is impossible to trace a single clause of the Constitution to any suggestion in this paper. The chief source of the details of the Constitution was the State constitutions and laws then in force. Thus the clause conferring a suspensive veto on the President is an almost literal transcript from the Massachusetts constitution. In fact, the principal experiment in the Constitution was the establishment of an electoral college; and of all parts of the system this has worked least as the framers expected. The Constitution represents, therefore, the accumulated experience of the time; its success is due to the wisdom of the members in selecting out of the mass of colonial and State institutions those which were enduring,


The real boldness of the Constitution is the novelty of the federal system which it set up. For the first time in history an elaborate written constitution was applied to a federation; and the details were so skilfully arranged that the instrument framed for thirteen little agricultural communities works well for forty-four large and populous States. A second novelty was a system of federal courts skilfully brought into harmony with the State judiciary. Even here we see an effect of the twelve years experience of imperfect federation. The convention knew how to select institutions that would stand together; it also knew how to reject what would have weakened the structure.


[State sovereignty.]

It was a long time before a compromise between the discordant elements could be reached. To declare the country a centralized nation was to destroy the traditions of a century and a half: to leave it an assemblage of States, each claiming independence and sovereignty, was to throw away the results of the Revolution. The convention finally agreed that while the Union should be endowed with adequate powers, the States should retain all powers not specifically granted, and particularly the right to regulate their own internal affairs.

[Representation of States.]

The next great question all but led to the breaking up of the convention. The New Hampshire delegate had not yet appeared, and Rhode Island was never represented in the convention; the large states had therefore a majority of one. On June 13 it was voted that the ratio of representation in both branches of the legislature should be in proportion to the population. Two days later, Patterson of New Jersey brought forward a plan satisfactory to the small States, by which the old plan of vote by States was to be retained, and the Confederation practically continued. For many days the two parties were unable to agree; the crisis was so serious that on June 28 Franklin, who was not renowned for piety, moved that thenceforward the sessions be opened with prayer. The deadlock was finally broken by the so-called Connecticut Compromise, adopted July 7: equal representation was to be preserved in the upper house, and proportional representation was to be granted in the lower.

[Representation of slaves.]

When it was proposed to levy taxes on the same basis, the Southern members objected that their negroes were not equal to freemen as producers of wealth. On July 12, the matter was adjusted by a compromise: the Southerners agreed to count slaves only at three fifths of their number, in apportioning both representatives and direct taxes. Since direct taxes have been but three times assessed in the history of the United States, the practical advantage was on the side of the North.

[Slave trade.]

It was otherwise in the third difficult question. Near the end of the convention the commercial and the agricultural States came into a disagreement. New England was anxious that Congress should have power to pass Acts protecting American shipping; on the other hand, the South desired to continue the slave-trade. Pinckney declared that "South Carolina can never receive the plan if it prohibits the slave-trade;" and Sherman of Connecticut cynically remarked, "The slave-trade is iniquitous; but inasmuch as the point of representation was settled, he should not object." On August 24 a third compromise left to Congress the power of passing Navigation Acts, but forbade it to prohibit the slave-trade during twenty years.


[Difficult questions.]

These difficult points out of the way, the convention arranged the details of the new government. One of the principal minor questions was the method of presidential election. Many members inclined towards an executive council; instead, it was agreed that there should be a President elected by Congress; but almost at the last moment, on September 7, the better plan of indirect election by the people was adopted. At one time the convention had agreed that Congress should have the right of veto upon State laws; it was abandoned, and instead was introduced a clause that the Constitution should be the supreme law of the land, and powerful courts were created to construe the law.

[Simplicity of the Constitution.]

In making up the list of the powers of Congress, the convention used brief but comprehensive terms. Thus all the difficulties arising out of the unfriendly commercial legislation of States, and their institution, with foreign treaties, were removed by the simple clause: "The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The great question of taxation was settled by fourteen words: "The Congress shall have Power ... To lay and collect Taxes, Duties, Imposts, and Excises."


In a few respects the Constitution was deficient. It did not profess to be all-comprehensive, for the details of the government were to be worked out in later statutes. There was, however, no provision for future annexations of territory. No safeguards were provided for the proper appointment and removal of public officers. The growth of corporations was not foreseen, and no distinct power was conferred upon Congress either to create or to regulate them. Above all, the convention was obliged to leave untouched the questions connected with slavery which later disrupted the Union.

[The work finished.]

On Sept. 17, 1787, the convention finished its work. To the eloquent and terse phraseology of Gouverneur Morris we owe the nervous English of the great instrument. As the members were affixing their signatures, Franklin remarked, pointing to the picture of a sun painted behind the President's chair: "I have often and often,... in the vicissitudes of my hopes and fears, looked ... without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising and not a setting sun."


[Action of Congress.] [Action of legislatures.]

The text of the Constitution was printed and rapidly distributed throughout the Union. It was still but a lifeless draft, and before it could become an instrument of government the approving action of Congress, of the legislatures, and of State conventions was necessary. Congress, on Sept. 28, 1787, unanimously resolved that the Constitution be transmitted to State legislatures. The federal convention had determined that the consideration of its work should not depend, like the Articles of Confederation, upon the slow and unwilling humor of the legislatures, but that in each State a convention should be summoned solely to express the will of the State upon the acceptance of the Constitution. It had further avoided the rock upon which had been wrecked the amendments proposed by Congress; when nine State conventions should have ratified the Constitution, it was to take effect for those nine. On the same day that Congress in New York was passing its resolution, the Pennsylvania legislature in Philadelphia was fixing the day for the election of delegates; all the State legislatures followed, except in Rhode Island.

[The Constitution attacked.]

The next six months was a period of great anxiety and of national danger. The Constitution was violently attacked in every part of the Union: the President, it was urged, would be a despot, the House of Representatives a corporate tyrant, the Senate an oligarchy. The large States protested that Delaware and Rhode Island would still neutralize the votes of Virginia and Massachusetts in the Senate. The federal courts were said to be an innovation. It was known that there had been great divisions in the convention, and that several influential members had left, or at the last moment had refused to sign. "The people of this commonwealth," said Patrick Henry, "are exceedingly uneasy in being brought from that state of full security which they enjoyed, to the present delusive appearance of things." A special objection was made to the lack of a bill of rights, such as existed in State constitutions. The reply was that the framers of the Constitution had deliberately omitted it because Congress was in no case to have powers not conferred upon it by the Constitution. The argument was not conclusive: Rev. Mr. Caldwell, in the North Carolina convention, declared that "unalienable rights ought not to be given up if not necessary;" and another member of the same convention objected that "if there be no religious test required, Pagans, Deists, and Mahometans might obtain offices, And ... the senators and representatives might all be pagans." It was even suggested as a serious danger that the Pope of Rome might eventually be elected president.

[Federalists and Antifederalists.]

The friends of the measure, in order to deprecate the charge that they aimed at centralization, took upon themselves the name of Federalists. Their opponents called themselves antifederalists, corresponded with each other, and formed a short-lived national party. A shower of pamphlets on both sides fell upon the country. Of these the most famous and most efficacious was the "Federalist," successive numbers of which were contributed by Hamilton, Madison, and John Jay. With a calmness of spirit, a lucidity of style, and a power of logic which make it to this day one of the most important commentaries on the Constitution, the "Federalist" strove to show that the Constitution was safe for the people and advantageous for the States.

66. STATE CONVENTIONS (1787, 1788).

[First nine states.]

As the State conventions assembled, the excitement grew more intense. Four States alone contained within a few thousands of half the population of the Union: they were Massachusetts, Virginia, New York, and North Carolina. In the convention of each of these States there was opposition strong and stubborn; one of them - North Carolina - adjourned without action; in the other three, ratification was obtained with extreme difficulty and by narrow majorities.

The first State to come under the "New Roof," as the Constitution was popularly called, was Delaware. In rapid succession followed Pennsylvania, New Jersey, Georgia, and Connecticut. In Massachusetts, the sixth State, there was a hard fight; the spirit of the Shays Rebellion was still alive; the opposition of Samuel Adams was only overcome by showing him that he was in the minority; John Hancock was put out of the power to interfere by making him the silent president of the convention. It was suggested that Massachusetts ratify on condition that a long list of amendments be adopted by the new government: the friends of the Constitution pointed out that the plan was simply to ratify a part of the Constitution and to reject the rest; each succeeding State would insist on a list of amendments, and the whole work must be done over. Feb. 6, 1788, the enthusiastic people of Boston knew that the convention, by a vote of 187 to 167, had ratified the Constitution; the amendments being added, not as a condition, but as a suggestion. Maryland, South Carolina, and New Hampshire brought the number up to nine.

[Virginia and New York.]

Before the ninth ratification was known, the fight had been won also in Virginia. Among the champions of the Constitution were Madison, Edmund Randolph, and John Marshall. James Monroe argued against the system of election which was destined twice to make him President. In spite of the determined opposition of Patrick Henry, and in spite of a proposition to ratify with amendments, the convention accepted. New York still held off. Her acquiescence was geographically necessary; and Alexander Hamilton, by the power of his eloquence and his reason, changed the vote of a hostile convention and added the eleventh State.


[The old Congress.]

During the session of the convention in Philadelphia Congress had continued to sit in New York, and the Northwest Ordinance was passed at this time (sec. 52). On Sept. 13, 1788 Congress voted that the Constitution had been ratified, and that elections should proceed for the officers of the new government, which was to go into operation the first Wednesday in March, 1789.

[Seat of government.] [Congress expires.]

Since Congress and the President must meet somewhere, it became the duty of the old Congress to fix, at least temporarily, the seat of government, Trenton, Lancaster, Princeton, and New York were suggested. Baltimore was voted; then, with its usual inconsistency, two days later Congress voted for New York. An attempt was made to settle the accounts of Congress; but all that could be ascertained was that they were in great confusion, and that vouchers had not yet been turned in for the expenditure of large sums. On October 23 is the last official record: "Two States attended." During the next five months the only evidences of national life were the perfunctory service of a few executive officers, the feeble movements of the army, now reduced to about six hundred men, and the steady accumulation of unpaid interest.

[Rhode Island and North Carolina.]

What, meantime, was the situation of the two States, Rhode Island and North Carolina, which had not ratified the Constitution, and which were, therefore, not entitled to take part in the elections? They had in 1781 entered into a constitution which was to be amended only by unanimous consent; their consent was refused; legally they had a right to insist on the continuance of the old Congress. The new Constitution was, strictly speaking, unconstitutional; it had been ratified by a process unknown to law. The situation was felt to be delicate, and the States were for the time being left to themselves. North Carolina came into the Union by a ratification of Nov. 21, 1789. It was suggested that the trade of States which did not recognize Congress should be cut off, and Rhode Island yielded. May 19, 1790, her ratification completed the Union.


[The Constitution irregular.]

The third attempt to form an organic union was now successfully carried out. The irregular authority of the Continental Congress had been replaced by the legal but inefficient Confederation; to this was now to succeed an organized government, complete in all its departments, and well endowed with powers. How had this Constitution been adopted? What was the authority which had taken upon itself to diminish the powers of the States, and to disregard the clauses which required unanimous consent to amendments? Was the new Constitution an agreement between eleven States, or was it an instrument of government for the whole people? Upon this question depends the whole discussion about the nature of the Union and the right of secession.

[Compact theory.]

The first theory is that the Constitution was a compact made between sovereign States. Thus Hayne in 1830 declared that "Before the Constitution each state was an independent sovereignty, possessing all the rights and powers appertaining to independent nations.... After the Constitution was formed, they remained equally sovereign and independent as to all powers not expressly delegated to the federal government.... The true nature of the Federal Constitution, therefore, is ... a compact to which the States are parties." The importance of the word "compact" is that it means an agreement which loses its force when any one of the parties ceases to observe it; a compact is little more than a treaty. Those who framed the Constitution appeared to consider it no compact; for on May 30, 1787, Mr. Randolph moved that "-no treaty or treaties among the whole or part of the States, as individual sovereignties, would be sufficient." In fact, the reason for the violent opposition to the ratification of the Constitution was that when once ratified, the States could not withdraw from it.

[Constitution theory.]

Another view is presented by Webster in his reply to Hayne: "It is, sir, the people's Constitution, the people's government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law." It is plain that the Constitution does not rest simply upon the consent of the majority of the nation. No popular vote was taken or thought of; each act of ratification set forth that it proceeded from a convention of the people of a State.

[Basis of the Constitution.]

The real nature of the new Constitution appears in the light of the previous history of the country. The Articles of Confederation had been a compact. One of the principal reasons why the Confederation was weak was that there was no way of compelling the States to perform their duties. The new Constitution was meant to be stronger and more permanent. The Constitution was, then, not a compact, but an instrument of government similar in its origin to the constitutions of the States. The difference was that, by general agreement, it was not to take effect until it was shown that in at least nine States the people were willing to live under it. Whatever the defects of the Confederation, however humiliating its weakness to our national pride, it had performed an indispensable service; it had educated the American people to the point where they were willing to accept a permanent federal union. As the "Federalist" put it, "A nation without a national government is an awful spectacle."