The Critical Period of American History Part 8

It was, indeed, because of this consciously felt diplomatic character that it was called a Congress, and not a Parliament. In its lack of coercive power it resembled the international congresses of Europe rather than the supreme legislature of any country. To subst.i.tute abruptly for such a body a truly national legislature, based not upon states but upon population, was quietly to inaugurate a revolution of no less magnitude than that which had lately severed us from Great Britain.

So bold a step, while all-essential in order to complete that revolution, and make its victorious issue fortunate instead of disastrous to the American people, was sufficiently revolutionary to awaken the fears of many members of the Federal Convention. To the familiar state governments which had so long possessed their love and allegiance, it was super-adding a new and untried government, which it was feared would swallow up the states and everywhere extinguish local independence. Nor can it be said that such fears were unreasonable. Our federal government has indeed shown a strong tendency to encroach upon the province of the state governments, especially since our late Civil War. Too much centralization is our danger to-day, as the weakness of the federal tie was our danger a century ago. The rule of the Federalist party was needed in 1789 as the rule of the Republican party was needed in 1861, to put a curb upon the centrifugal tendencies. But after Federalism had fairly done its great work, at the beginning of the nineteenth century, it was well that the administration of our national affairs should pa.s.s into the hands of the party to which Thomas Jefferson and Samuel Adams belonged, and which Madison, in his calm statesmanlike wisdom, had come to join. And now that, in our own day, the disruptive forces have been even more thoroughly and effectually overcome, it is time for the principles of that party to be rea.s.serted with fresh emphasis. If the day should ever arrive (which G.o.d forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the states shall have been so far lost as that of the departments of France, or even so far as that of the counties of England,--on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever.

I do not think that the historian writing at the present day need fear any such direful calamity, for the past century has shown most instructively how, in such a society as ours, the sense of political dangers slowly makes its way through the whole ma.s.s of the people, until movements at length are made to avert them, and the pendulum swings in the opposite direction. The history of political parties in the United States is especially rich in lessons of this sort. Compared with the statesmen of the Federal Convention, we are at a great advantage in studying this question of national consolidation; and we have no excuse for failing to comprehend the att.i.tude of the men who dreaded the creation of a national legislature as the entering wedge which would by and by rend asunder the structure of our liberties. The great mind of Madison was one of the first to entertain distinctly the n.o.ble conception of two kinds of government operating at one and the same time upon the same individuals, harmonious with each other, but each supreme in its own sphere. Such is the fundamental conception of our partly federal, partly national, government, which appears throughout the Virginia plan as well as in the Const.i.tution which grew out of it. It was a political conception of a higher order than had ever before been entertained; it took a great deal of discussion to make it clear to the minds of the delegates generally; and the struggle over this initial measure of a national legislature was so bitter as to come near breaking up the convention.

In its original shape the Virginia plan went much further toward national consolidation than the Const.i.tution as adopted. The reaction against the evils of the loose-jointed confederation, which Randolph so ably summed up, was extreme. According to the Virginia plan, the national legislature was to be composed of two houses, like the legislatures of the several states. The members of the lower house should be chosen directly by the people; members of the upper house, or Senate, should be elected by the lower house out of persons nominated by the state legislatures. In both the lower and the upper branches of this national legislature the votes were to be the votes of individuals, and no longer the votes of states, as in the Continental Congress. Under the articles of confederation each state had an equal vote, and two thirds were required for every important measure. Under the proposed Const.i.tution each state was to have a number of representatives proportionate either to its wealth or to the number of its free inhabitants, and a bare majority of votes was to suffice to pa.s.s all measures in the ordinary course of business; and these rules were to apply both to the lower house and to the Senate. To adopt such a plan would overthrow the equality of the states altogether. It would give Virginia, the greatest state, sixteen representatives, where Georgia, the smallest state, had but one; and besides, as the votes were no longer to be taken by states, individual members could combine in any way they pleased, quite irrespective of state lines. It was not strange that to many delegates in the convention such a beginning should have seemed revolutionary. This impression was deepened when it was further proposed not only to clothe this national legislature with original powers of legislation in all cases to which the several states are incompetent, but also to allow it to set aside at discretion such state laws as it might deem unconst.i.tutional. It is interesting to find Madison, whose Federalism afterward came to be so moderate, now appearing as the earnest defender of this extreme provision, so incompatible with state rights. But in Madison's mind at this moment, in the actual presence of the anarchy of the confederation, the only alternative which seemed to present itself was that of armed coercion.

"A negative on state laws," he said, "is the mildest expedient that can be devised for enforcing a national decree. Should no such precaution be engrafted, the only remedy would be coercion. The negative would render the use of force unnecessary. This prerogative of the general government is the great pervading principle that must control the centrifugal tendency of the states, which, without it, will continually fly out of their proper orbits, and destroy the order and harmony of the political system." But these views were not destined to find favour with the convention, which finally left the matter to be much more satisfactorily adjusted through the medium of the federal judiciary.

Such were the fundamental provisions of the Virginia plan with regard to the national legislature. To carry out the laws, it was proposed that there should be a national executive, to be chosen by the national legislature for a short term, and ineligible a second time. Whether the executive power should be invested in a single person or in several was not specified. As will be seen hereafter, this was regarded as an extremely delicate point, with which it was thought best not to embarra.s.s the Virginia plan at the outset. Pa.s.sing lightly over this, it was urged that, in order to complete the action of the government upon individuals, there must be a national judiciary to determine cases arising under the Const.i.tution, cases in admiralty, and cases in which different states or their citizens appear as parties. The judges were to be chosen by the national legislature, to hold office during good behaviour.

[Sidenote: First reception of the Virginia plan.]

Such, in its main outlines, was the plan which Randolph laid before the convention, in the name of the Virginia delegation. An audacious scheme!

exclaimed some of the delegates; it was enough to take your breath away.

If they were going to begin like this, they might as well go home, for all discussion would be time wasted. They were not sent there to set on foot a revolution, but to amend and strengthen the articles of confederation. But this audacious plan simply abolished the Confederation in order to subst.i.tute for it a consolidated national government. Foremost in urging this objection were Yates and Lansing of New York, with Luther Martin of Maryland. d.i.c.kinson said it was pushing things altogether too far, and his colleague, George Read, hinted that the delegation from Delaware might feel obliged to withdraw from the convention if the election of representatives according to population should be adopted. By the tact of Madison and Gouverneur Morris this question was postponed for a few days. After some animated discussion, the issues became so narrowed and defined that they could be taken up one by one. It was first decided that the national legislature should consist of two branches. Then came a warm discussion as to whether the members of the lower house should be elected directly by the people.

Curiously enough, in a country where the principle of popular election had long since taken such deep root, where the a.s.semblies of the several states had been chosen by the people from the very beginning, there was some doubt as to whether the same principle could safely be applied to the national House of Representatives. Gerry, with his head full of the Shays rebellion and the "Know Ye" measures of the neighbouring state, thought the people could not be trusted. "The people do not want virtue," said he, "but are the dupes of pretended patriots." Roger Sherman took a similar view, and was supported by Martin, Rutledge, and both the Pinckneys; but the sounder opinion prevailed. On this point Hamilton was at one with Mason, Wilson, and d.i.c.kinson. The proposed a.s.sembly, said Mason, was to be, so to speak, our House of Commons, and ought to know and sympathize with every part of the community. It ought to have at heart the rights and interests of every cla.s.s of the people, and in no other way could this end be so completely attained as by popular election. "Yes," added Wilson, "without the confidence of the people no government, least of all a republican government, can long subsist.... The election of the first branch by the people is not the corner-stone only, but the foundation of the fabric." "It is essential to the democratic rights of the community," said Hamilton, "that the first branch be directly elected by the people." Madison argued powerfully on the same side, and the question was finally decided in favour of popular election.

[Sidenote: Antagonism between large states and small states.]

[Sidenote: The New Jersey plan; a feeble palliative.]

It was now the 4th of June, when the great question came up which nearly wrecked the convention before it was settled, after a whole month of stormy debate. This was the question as to how the states should be represented in the new Congress. On the Virginia plan, the smaller states would be virtually swamped. Unless they could have equal votes, without regard to wealth or population, they would be at the mercy of the great states. In the division which ensued, the four most populous states--Virginia, Ma.s.sachusetts, Pennsylvania, and North Carolina--favoured the Virginia plan; and they succeeded in carrying South Carolina with them. Georgia, too, which, though weak at that moment, possessed considerable room for expansion, voted upon the same side. On the other hand, the states of Connecticut, New Jersey, Delaware, and Maryland--which were not only small in area, but were cut off from further expansion by their geographical situation--were not inclined to give up their equal vote in either branch of the national legislature. At this stage of the proceedings the delegation from New Hampshire had not yet arrived upon the scene. On several occasions the majority of the Maryland delegation went with the larger states, but Luther Martin, always opposed to the Virginia plan, usually succeeded in dividing the vote of the delegation. Of the New York members, Yates and Lansing, here as always, thwarted Hamilton by voting with the smaller states. Their policy throughout was one of obstruction. The members from Connecticut were disposed to be conciliatory; but New Jersey was obstinate and implacable. She knew what it was to be tyrannized over by powerful neighbours. The wrongs she had suffered from New York and Pennsylvania rankled in the minds of her delegates. Accordingly, in the name of the smaller states, William Paterson laid before the convention the so-called "New Jersey plan" for the amendment of the articles of confederation. This scheme admitted a federal legislature, consisting of a single house, an executive in the form of a council to be chosen by Congress, and likewise a federal judiciary, with powers less extensive than those contemplated by the Virginia plan. It gave to Congress the power to regulate foreign and domestic commerce, to levy duties on imports, and even to raise internal revenue by means of a Stamp Act. But with all this apparent liberality on the surface, the New Jersey plan was vicious at bottom. It did not really give Congress the power to act immediately upon individuals. The federal legislature which it proposed was to represent states, and not individuals, and the states were to vote equally, without regard to wealth or population. If things were to be left in this shape, there was no security that the powers granted to Congress could ever be really exercised. Nay, it was almost certain that they could not be put into operation. It was easy enough on paper to give Congress the permission to levy duties and regulate commerce, but such a permission would amount to nothing unless Congress were armed with the power of enforcing its decrees upon individuals. And it could in no wise acquire such power unless as the creature of the people, and not of the states. The New Jersey plan, therefore, furnished no real remedy for the evils which afflicted the country. It was vigorously opposed by Hamilton, Madison, Wilson, and King. Hamilton, indeed, took this occasion to offer a plan of his own, which, in addition to Madison's scheme of a purely national legislature, contained the features of a tenure for life or good behaviour, for the executive and the members of the upper house. But to most of the delegates this scheme seemed too little removed from a monarchy, and Hamilton's brilliant speech in its favour, while applauded by many, was supported by none.

The weighty arguments of Wilson, King, and Madison prevailed, and the New Jersey plan lost its original shape when it was decided that Congress should consist of two houses. The principle of equal state representation, however, remained as a stumbling-block. Paterson, supported by his able colleague Brearley, as well as by Martin and the two irreconcilables from New York, stoutly maintained that to depart from this principle would be to exceed the powers of the convention, which a.s.suredly was not intended to remodel the government from beginning to end. But Randolph answered, "When the salvation of the republic is at stake, it would be treason to our trust not to propose what we find necessary;" and Hamilton pithily reminded the delegates that as they were there only for the purpose of recommending a scheme which would have to be submitted to the states for acceptance, they need not be deterred by any false scruples from using their wits to the best possible advantage. The debate on the merits of the question was an angry one. According to the Virginia plan, said Brearly, the three states of Virginia, Ma.s.sachusetts, and Pennsylvania will carry everything before them. "It was known to him, from facts within New Jersey, that where large and small counties were united into a district for electing representatives for the district, the large counties always carried their point, and consequently the large states would do so....

Was it fair, on the other hand, that Georgia should have an equal vote with Virginia? He would not say it was. What remedy, then? One only: that a map of the United States be spread out, that all the existing boundaries be erased, and that a new part.i.tion of the whole be made into thirteen equal parts." "Yes," said Paterson, "a confederacy supposes sovereignty in the members composing it, and sovereignty supposes equality. If we are to be considered as a nation, all state distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made then there may be fairly an equality of representation." This argument was repeated with a triumphant air, as seeming to reduce the Virginia plan to absurdity. Paterson went on to say that "there was no more reason that a great individual state, contributing much, should have more votes than a small one, contributing little, than that a rich individual citizen should have more votes than an indigent one. If the ratable property of A was to that of B as forty to one, ought A, for that reason, to have forty times as many votes as B?... Give the large states an influence in proportion to their magnitude, and what will be the consequence? Their ambition will be proportionally increased, and the small states will have everything to fear. It was once proposed by Galloway [in the first Continental Congress] that America should be represented in the British Parliament, and then be bound by its laws. America could not have been ent.i.tled to more than one third of the representatives which would fall to the share of Great Britain: would American rights and interests have been safe under an authority thus const.i.tuted?" Then, warming with the subject, he exclaimed, If the great states wish to unite on such a plan, "let them unite if they please, but let them remember that they have no authority to compel the others to unite.... Shall I submit the welfare of New Jersey with five votes in a council where Virginia has sixteen?... I will never consent to the proposed plan. I will not only oppose it here, but on my return home will do everything in my power to defeat it there.

Neither my state nor myself will ever submit to tyranny."

Paterson was ably answered by James Wilson, of Pennsylvania, who pointed out the absurdity of giving 180,000 men in one part of the country as much weight in the national legislature as 750,000 in another part. It is unjust, he said. "The gentleman from New Jersey is candid. He declares his opinions boldly. I commend him for it. I will be equally candid.... I never will confederate on his principles." The convention grew nervous and excited over this seemingly irreconcilable antagonism.

The discussion was kept up with much learning and acuteness by Madison, Ellsworth, and Martin, and history was ransacked for testimony from the Amphiktyonic Council to Old Sarum, and back again to the Lykian League.

Madison, rightly reading the future, declared that if once the proposed union should be formed, the real danger would come not from the rivalry between large and small states, but from the antagonistic interests of the slave-holding and non-slaveholding states. Hamilton pointed out that in the state of New York five counties had a majority of the representatives, and yet the citizens of the other counties were in no danger of tyranny, as the laws have an equal operation upon all. Rufus King called attention to the fact that the rights of Scotland were secure from encroachments, although her representation in Parliament was necessarily smaller than that of England. But New Jersey and Delaware, mindful of recent grievances, were not to be argued down or soothed.

Gunning Bedford of Delaware was especially violent. "Pretences to support ambition," said he, "are never wanting. The cry is, Where is the danger? and it is insisted that although the powers of the general government will be increased, yet it will be for the good of the whole; and although the three great states form nearly a majority of the people of America, they never will injure the lesser states. _Gentlemen, I do not trust you._ If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?... Sooner than be ruined, _there are foreign powers who will take us by the hand_. I say this not to threaten or intimidate, but that we should reflect seriously before we act." This language called forth a rebuke from Rufus King. "I am concerned," said he, "for what fell from the gentleman from Delaware,--_take a foreign power by the hand!_ I am sorry he mentioned it, and I hope he is able to excuse it to himself on the score of pa.s.sion."

[Sidenote: The Connecticut compromise.]

The situation had become dangerous. "The convention," said Martin, "was on the verge of dissolution, scarce held together by the strength of a hair." When things were looking darkest, Oliver Ellsworth and Roger Sherman suggested a compromise. "Yes," said Franklin, "when a joiner wishes to fit two boards, he sometimes pares off a bit from both." The famous Connecticut compromise led the way to the arrangement which was ultimately adopted, according to which the national principle was to prevail in the House of Representatives, and the federal principle in the Senate. But at first the compromise met with little favour. Neither party was willing to give way. "No compromise for us," said Luther Martin. "You must give each state an equal suffrage, or our business is at an end." "Then we are come to a full stop," said Roger Sherman. "I suppose it was never meant that we should break up without doing something." When the question as to allowing equality of suffrage to the states in the Federal Senate was put to vote, the result was a tie.

Connecticut, New York, New Jersey, Delaware, and Maryland--five states--voted in the affirmative; Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina--five states--voted in the negative; the vote of Georgia was divided and lost. It was Abraham Baldwin, a native of Connecticut and lately a tutor in Yale College, a recent emigrant to Georgia, who thus divided the vote of that state, and prevented a decision which would in all probability have broken up the convention. His state was the last to vote, and the house was hushed in anxious expectation, when this brave and wise young man yielded his private conviction to what he saw to be the paramount necessity of keeping the convention together. All honour to his memory!

The moral effect of the tie vote was in favour of the Connecticut compromise; for no one could doubt that the little states, New Hampshire and Rhode Island, had they been represented in the division, would have voted upon that side. The matter was referred to a committee as impartially const.i.tuted as possible, with Elbridge Gerry as chairman; and On the 5th of July, after a recess of three days, the committee reported in favour of the compromise. Fresh objections on the part of the large states were now offered by Wilson and Gouverneur Morris, and gloom again overhung the convention. Gerry said that, while he did not fully approve of the compromise, he had nevertheless supported it, because he felt sure that if nothing were done war and confusion must ensue, the old confederation being already virtually at an end. George Mason observed that "it could not be more inconvenient for any gentleman to remain absent from his private affairs than it was for him; but he would bury his bones in that city rather than expose his country to the consequences of a dissolution of the convention." Mason's subsequent behaviour was hardly in keeping with the promise of this brave speech, and in Gerry we shall observe like inconsistency. At present a timely speech from Madison soothed the troubled waters; but it was only after eleven days of somewhat more tranquil debate that the compromise was adopted on the 16th of July. Even then it was but narrowly secured. The ayes were Connecticut, New Jersey, Delaware, Maryland, and North Carolina,--five states; the noes were Pennsylvania, Virginia, South Carolina, and Georgia,--four states; Gerry and Strong against King and Gorham divided the vote of Ma.s.sachusetts, which was thus lost. New York, for reasons presently to be stated, was absent. It is accordingly to Elbridge Gerry and Caleb Strong that posterity are indebted for here preventing a tie, and thus bringing the vexed question to a happy issue.

According to the compromise secured with so much difficulty, it was arranged that in the lower house population was to be represented, and in the upper house the states, each of which, without regard to size, was forever to be ent.i.tled to two senators. In the lower house there was to be one representative for every 40,000 inhabitants, but at Washington's suggestion the number was changed to 30,000, so as to increase the house, which then seemed likely to be too small in numbers.

Some one suggested that with the growth of population that rate would make an unwieldy house within a hundred and fifty years from that time, whereat Gorham of Ma.s.sachusetts laughed to scorn the idea that any system of government they could devise in that room could possibly last a hundred and fifty years. The difficulty has been surmounted by enlarging from time to time the basis of representation. It now seemed inadvisable that the senators should be chosen by the lower house out of persons nominated by the state legislatures; and it was accordingly decided that they should be not merely nominated, but elected, by the state legislatures. Thus the Senate was made quite independent of the lower house. At the same time, the senators were to vote as individuals, and thus the old practice of voting by states, except in certain peculiar emergencies, was finally done away with.

[Sidenote: It was a decisive victory for Madison's scheme.]

[Sidenote: Irreconcilables go home.]

It is seldom, if ever, that a political compromise leaves things evenly balanced. Almost every such arrangement, when once set working, weighs down the scales decidedly to the one side or the other. The Connecticut compromise was really a decisive victory for Madison and his party, although it modified the Virginia plan so considerably. They could well afford to defer to the fears and prejudices of the smaller states in the structure of the Senate, for by securing a lower house, which represented the American people, and not the American states, they won the whole battle in so far as the question of radically reforming the government was concerned. As soon as the foundation was thus laid for a government which should act directly upon individuals, it obviously became necessary to abandon the articles of confederation, and work out a new const.i.tution in all its details. The plan, as now reported, omitted the obnoxious adjective "national," and spoke of the _federal_ legislature and _federal_ courts. But to the men who were still blindly wedded to the old confederation this soothing change of phraseology did not conceal their defeat. On the very day that the compromise was favourably reported by the committee, Yates and Lansing quit the convention in disgust, and went home to New York. After the departure of these uncongenial colleagues, Hamilton might have acted with power, had he not known too well that the sentiment of his state did not support him. As a mere individual he could do but little, and accordingly he went home for a while to attend to pressing business, returning just in time to take part in the closing scenes. His share in the work of framing the Federal Const.i.tution was very small. About the time that Hamilton returned, Luther Martin, whose wrath had waxed hotter every day, as he saw power after power extended to the federal government, at length gave way and went back to Maryland, vowing that he would have nothing more to do with such high-handed proceedings.

While the Connecticut compromise thus scattered a few scintillations of discontent, and relieved the convention of some of its most discordant elements, its general effect was wonderfully harmonizing. The men who had opposed the Virginia plan only through their dread of the larger states were now more than conciliated. The concession of equal representation in the Senate turned out to have been a master stroke of diplomacy. As soon as the little states were a.s.sured of an equal share in the control of one of the two central legislative bodies, they suddenly forgot their scruples about thoroughly overhauling the government, and none were readier than they to intrust extensive powers to the new Congress. Paterson of New Jersey, the fiercest opponent of the Virginia plan, became from that time forth to the end of his life the most devoted of Federalists.

[Sidenote: Other antagonisms; vague dread of the future west.]

[Sidenote: Antagonism between slave states and free states.]

That first step which proverbially gives the most trouble had now been fairly taken. But other compromises were needed before the work of construction could properly be carried out. As the antagonism between great and small states disappeared from the scene, other antagonisms appeared. It is worth noting that just for a moment there was revealed a glimmering of jealousy and dread on the part of the eastern states toward those of which the foundations were laid in the northwestern territory. Many people in New England feared that their children would be drawn westward in such numbers as to create immense states beyond the Ohio; and thus it was foreseen that the relative political weight of New England in the future would be diminished. To a certain extent this prediction has been justified by events, but Roger Sherman rightly maintained that it afforded no just grounds for dread. King and Gerry introduced a most illiberal and mischievous motion, that the total number of representatives from new states must never be allowed to exceed the total number from the original thirteen. Such an arrangement, which would surely have been enough to create that antagonism between east and west which it sought to forestall and avoid, was supported by Ma.s.sachusetts and Connecticut, with Delaware and Maryland; but it was defeated by the combination of New Jersey with the four states south of Maryland. The ground was thus cleared for a very different kind of sectional antagonism,--that which, as Madison truly said, would prove the most deep-seated and enduring of all,--the antagonism between north and south. The first great struggle between the pro-slavery and anti-slavery parties began in the Federal Convention, and it resulted in the first two of the long series of compromises by which the irrepressible conflict was postponed until the north had waxed strong enough to confront the dreaded spectre of secession, and, summoning all its energies in one stupendous effort, exorcise it forever. From this moment down to 1865 we shall continually be made to realize how the American people had entered into the shadow of the coming Civil War before they had fairly emerged from that of the Revolution; and as we pa.s.s from scene to scene of the solemn story, we shall learn how to be forever grateful for the sudden and final clearing of the air wrought by that frightful storm which men not yet old can still so well remember.

The first compromise related to the distribution of representatives between north and south. Was representation in the lower house of Congress to be proportioned to wealth, or to population; and if the latter, were all the inhabitants, or only all the free inhabitants, to be counted? It was soon agreed that wealth was difficult to reckon and population easy to count; and to an extent sufficient for all ordinary purposes, population might serve as an index of wealth. A state with 500,000 inhabitants would be in most cases richer than one with 400,000.

In those days, when cities were few and small, this was approximately true. In our day it is not at all true. A state with large commercial and manufacturing cities is sure to be much richer than a state in which the population is chiefly rural. The population of Ma.s.sachusetts is somewhat smaller than that of Indiana; but her aggregate wealth is more than double that of Indiana. Disparities like this, which do not trouble us to-day, would have troubled the Federal Convention. We no longer think it desirable to give political representation to wealth, or to anything but persons. We have become thoroughly democratic, but our great-grandfathers had not. To them it seemed quite essential that wealth should be represented as well as persons; but they got over the main difficulty easily, because under the economic conditions of that time population could serve roughly as an index to wealth, and it was much easier to count noses than to a.s.sess the value of farms and stock.

[Sidenote: Were slaves to be reckoned as persons or as chattels?]

But now there was in all the southern states, and in most of the northern, a peculiar species of collective existence, which might be described either as wealth or as population. As human beings the slaves might be described as population, but in the eye of the law they were chattels. In the northern states slavery was rapidly disappearing, and the property in negroes was so small as to be hardly worth considering; while south of Mason and Dixon's line this peculiar kind of property was the chief wealth of the states. But clearly, in apportioning representation, in sharing political power in the federal a.s.sembly, the same rule should have been applied impartially to all the states. At this point, Pierce Butler and Cotesworth Pinckney of South Carolina insisted that slaves were part of the population, and as such must be counted in ascertaining the basis of representation. A fierce and complicated dispute ensued. The South Carolina proposal suggested a uniform rule, but it was one that would scarcely alter the political weight of the north, while it would vastly increase the weight of the south; and it would increase it most in just the quarter where slavery was most deeply rooted. The power of South Carolina, as a member of the Union, would be doubled by such a measure. Hence the northern delegates maintained that slaves, as chattels, ought no more to be reckoned as part of the population than houses or ships. "Has a man in Virginia,"

exclaimed Paterson, "a number of votes in proportion to the number of his slaves? And if negroes are not represented in the states to which they belong, why should they be represented in the general government?... If a meeting of the people were to take place in a slave state, would the slaves vote? They would not. Why then should they be represented in a federal government?" "I can never agree," said Gouverneur Morris, "to give such encouragement to the slave-trade as would be given by allowing the southern states a representation for their negroes.... I would sooner submit myself to a tax for paying for all the negroes in the United States than saddle posterity with such a const.i.tution."

[Sidenote: The three fifths compromise; a genuine English solution, if ever there was one.]

The att.i.tude taken by Virginia was that of peace-maker. On the one hand, such men as Washington, Madison, and Mason, who were earnestly hoping to see their own state soon freed from the curse of slavery, could not fail to perceive that if Virginia were to gain an increase of political weight from the existence of that inst.i.tution, the difficulty of getting the state legislature to abolish it would be enhanced. But on the other hand, they saw that South Carolina was inexorable, and that her refusal to adopt the Const.i.tution for this reason would certainly carry Georgia with her, and probably North Carolina, also. Even had South Carolina alone been involved, it was not simply a question of forming a Union which should either include her or leave her out in the cold. The case was much more complicated than that. It was really doubtful if, without the cordial a.s.sistance of South Carolina, a Union could be formed at all. A Federal Const.i.tution had not only to be framed, but it had to be presented to the thirteen states for adoption. It was by no means clear that enough states would ratify it to enable the experiment of the new government to go into operation. New York and Rhode Island were known to be bitterly opposed to it; Ma.s.sachusetts could not be counted on as sure; to add South Carolina to this list would be to endanger everything. The event justified this caution. We shall hereafter see that it was absolutely necessary to satisfy South Carolina, and that but for her ratification, coming just at the moment when it did, the work of the Federal Convention would probably have been done in vain. It was a clear perception of the wonderful complication of interests involved in the final appeal to the people that induced the Virginia statesmen to take the lead in a compromise. Four years before, in 1783, when Congress was endeavouring to apportion the quotas of revenue to be required of the several states, a similar dispute had arisen. If taxation were to be distributed according to population, it made a great difference whether slaves were to be counted as population or not. If slaves were to be counted, the southern states would have to pay more than their equitable share into the federal treasury; if slaves were not to be counted, it was argued at the north that they would be paying less than their equitable share. Consequently, at that time the north had been inclined to maintain that the slaves were population, while the south had preferred to regard them as chattels. Thus we see that in politics, as well as in algebra, it makes all the difference in the world whether you start with _plus_ or with _minus_. On that occasion Madison had offered a successful compromise, in which a slave figured as three fifths of a freeman; and Rutledge of South Carolina, who was now present in the convention, had supported the measure. Madison now proposed the same method of getting over the difficulty about representation, and his compromise was adopted. It was agreed that in counting population, whether for direct taxation or for representation in the lower house of Congress, five slaves should be reckoned as three individuals.

[Sidenote: In other words, it was the best solution attainable under the circ.u.mstances.]

All this was thoroughly illogical, of course; it left the question whether slaves are population or chattels for theorizers to wrangle over, and for future events to decide. It was easy for James Wilson to show that there was neither rhyme nor reason in it: but he subscribed to it, nevertheless, just as the northern abolitionists, Rufus King and Gouverneur Morris, joined with Washington and Madison, and with the pro-slavery Pinckneys, in subscribing to it, because they all believed that without such a compromise the Const.i.tution would not be adopted; and in this there can be little doubt that they were right. The evil consequences were unquestionably very serious indeed. Henceforth, so long as slavery lasted, the vote of a southerner counted for more than the vote of a northerner; and just where negroes were most numerous the power of their masters became greatest. In South Carolina there soon came to be more blacks than whites, and the application of the rule therefore went far toward doubling the vote of South Carolina in the House of Representatives and in the electoral college. Every five slaveholders down there were equal in political weight to not less than eight farmers or merchants in the north; and thus this troublesome state acquired a power of working mischief out of all proportion to her real size. At a later date the operation of the rule in Mississippi was similar; and in general it was just the most backward and barbarous parts of the Union that were thus favoured at the expense of the most civilized parts. Admitting all this, however, it remains undeniable that the Const.i.tution saved us from anarchy; and there can be little doubt that slavery and every other remnant of barbarism in American society would have thriven far more l.u.s.tily under a state of chronic anarchy than was possible under the Const.i.tution. Four years of concentrated warfare, animated by an intense and lofty moral purpose, could not hurt the character or mar the fortunes of the people, like a century of aimless and miscellaneous squabbling over a host of petty local interests. The War of Secession was a terrible ordeal to pa.s.s through; but when one tries to picture what might have happened in this fair land without the work of the Federal Convention, the imagination stands aghast.

[Sidenote: Compromise between New England and South Carolina as to the foreign slave-trade.]

The second great compromise between northern and southern interests related to the abolition of the foreign slave-trade and the power of the federal government over commerce. All the states except South Carolina and Georgia wished to stop the importation of slaves; but the physical conditions of rice and indigo culture exhausted the negroes so fast that these two states felt that their industries would be dried up at the very source if the importation of fresh negroes were to be stopped.

Cotesworth Pinckney accordingly declared that South Carolina would consider a vote to abolish the slave-trade as simply a polite way of telling her that she was not wanted in the Union. On the other hand, the three New England states present in the convention had made up their minds that it would not do to allow the several states any longer to regulate commerce each according to its own whim. It was of vital importance that this power should be taken from the states and lodged in Congress; otherwise, the Union would soon be rent in pieces by commercial disputes. The policy of New York had thoroughly impressed this lesson upon all the neighbouring states. But none of the southern states were in favour of granting this power unreservedly to Congress.

If a navigation act could be pa.s.sed by a simple majority in Congress, it was feared that the New Englanders would get all the carrying trade into their own hands, and then charge ruinous freights for carrying rice, indigo, and tobacco to the north and to Europe. On this point, accordingly, the southern delegates acted as a unit in insisting that Congress should not be empowered to pa.s.s navigation acts, except by a two thirds vote of both houses. This would have tied the hands of the federal government most unfortunately; and the New Englanders, enlightened by their own interests, saw it to be so. Here were the materials ready for a compromise, or, as the stout abolitionist, Gouverneur Morris, truly called it, a "bargain" between New England and the far south. New Hampshire, Ma.s.sachusetts, and Connecticut consented to the prolonging of the foreign slave-trade for twenty years, or until 1808; and in return South Carolina and Georgia consented to the clause empowering Congress to pa.s.s navigation acts and otherwise regulate commerce by a simple majority of votes. At the same time, as a concession to rice and indigo, the New Englanders agreed that Congress should be forever prohibited from taxing exports; and thus one remnant of mediaeval political economy was neatly swept away.

[Sidenote: This last compromise seems to make the adhesion of Virginia doubtful.]

This compromise was carried against the st.u.r.dy opposition of Virginia.

The language of George Mason of Virginia is worth quoting, for it was such as Theodore Parker might have used. He called the slave-trade "this infernal traffic." "Slavery," said he, "discourages arts and manufactures. The poor despise labour when performed by slaves. They prevent the immigration of whites, who really strengthen and enrich a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities." But these prophetic words were powerless against the combination of New England with the far south. One thing was now made certain,--that the vast influence of Rutledge and the Pinckneys would be thrown unreservedly in behalf of the new Const.i.tution. "I will confess," said Cotesworth Pinckney, "that I had prejudices against the eastern states before I came here, but I have found them as liberal and candid as any men whatever." But this compromise, which finally secured South Carolina and Georgia, made Virginia for the moment doubtful; for Mason and Randolph were so disgusted at the absolute power over commerce conceded to Congress that, when the Const.i.tution was finished and engrossed on paper, they refused to sign it.

It is difficult to read this or any other episode in our history whereby negro slavery was extended and fostered without burning indignation. But this is not the proper mood for the historian, whose aim is to interpret men's actions by the circ.u.mstances of their time, in order to judge their motives correctly. In 1787 slavery was the cloud like unto a man's hand which portended a deluge, but those who could truly read the signs were few. From north to south, slavery had been slowly dying out for nearly fifty years. It had become extinct in Ma.s.sachusetts, it was nearly so in all the other northern states, and it had just been forever prohibited in the national domain. In Maryland and Virginia there was a strong and growing party in favour of abolition. The movement had even gathered strength in North Carolina. Only the rice-swamps of the far south remained wedded to their idols. It was quite generally believed that slavery was destined speedily to expire, to give place to a better system of labour, without any great danger or disturbance; and this opinion was distinctly set forth by many delegates in the convention.[7]

Even Charles Pinckney went so far as to express a hope that South Carolina, if not too much meddled with, would by and by voluntarily rank herself among the emanc.i.p.ating states; but his older cousin declared himself bound in candour to acknowledge that there was very little likelihood indeed of so desirable an event. Not even these South Carolinians ventured to defend slavery on principle. This belief in the moribund condition of slavery prevented the convention from realizing the actual effect of the concessions which were made. Scarcely any cotton was grown at that time, and none was sent to England. The industrial revolution about to be wrought by the inventions of Arkwright and Hargreaves, Cartwright and Watt and Whitney, could not be foreseen.

Nor could it be foreseen that presently, when there should thus arise a great demand for slaves from Virginia as a breeding-ground, the abolitionist party in that state would disappear, leaving her to join in the odious struggle for introducing slavery into the national domain.

Though these things were so soon to happen, the wisest man in 1787 could not foresee them. The convention hoped that twenty years would see not only the end of the foreign slave-trade, but the restriction and diminution of slavery itself. It was in such a mood that they completed the compromise by recommending a tariff of ten dollars a head upon all negroes imported, while at the same time a clause was added for insuring the recovery of fugitive slaves, quite similar to the clause in the ordinance for the government of the northwestern territory.

[Sidenote: The foundations of the Const.i.tution were thus laid in compromise.]

It was the three great compromises here described that laid the foundations of our Federal Const.i.tution. The first compromise, by conceding equal representation to the states in the Senate, enlisted the small states in favour of the new scheme, and by establishing a national system of representation in the lower house, prepared the way for a government that could endure. This was Madison's great victory, secured by the aid of Sherman and Ellsworth, without which nothing could have been effected. The second compromise, at the cost of giving disproportionate weight to the slave states, gained their support for the more perfect union that was about to be formed. The third compromise, at the cost of postponing for twenty years the abolition of the foreign slave-trade, secured absolute free-trade between the states, with the surrender of all control over commerce into the hands of the federal government. After these steps had been taken, the most difficult and dangerous part of the road had been travelled; the remainder, though extremely important, was accomplished far more easily. It was mainly the task of building on the foundations already laid.

[Sidenote: Powers granted to the federal government.]

In the grants to the federal government of powers. .h.i.therto reserved to the several states, the diversity of opinion among the members of the convention was but slight compared to the profound antagonism which had been allayed by the three initial compromises. It was admitted, as a matter of course, that the federal government alone could coin money, fix the standard of weights and measures, establish post-offices and post-roads, and grant patents and copyrights. To it alone was naturally intrusted the whole business of war and of international relations. It could define and punish felonies committed on the high seas; it could maintain a navy and issue letters of marque and reprisal; it could support an army and provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions.

But in relation to this question of the army and the militia there was some characteristic discussion. It was at first proposed that Congress should have the power "to subdue a rebellion in any state on the application of its legislature." The Shays rebellion was then fresh in the memory of all the delegates, and their arguments simply reflected the impression which that unpleasant affair had left upon them. Charles Pinckney, Gouverneur Morris, and John Langdon wished to have the power given to Congress unconditionally, without waiting for an application from the legislature. But Gerry, who had been on the ground, spoke st.u.r.dily against such a needless infraction of state rights. He was utterly opposed, he said, to "letting loose the myrmidons of the United States on a state without its own consent. The states will be the best judges in such cases. More blood would have been spilt in Ma.s.sachusetts in the late insurrection if the general authority had intermeddled."

Ellsworth suggested that Congress should use its discretion only in cases where the legislature of the state could not meet; but Randolph forcibly replied that if Congress is to judge whether a state legislature can or cannot meet, the difficulty is in no wise surmounted.

Gerry's view at last prevailed, and in accordance therewith it was decided that the federal power should guarantee to every state a republican form of government, and should protect each of them against invasion; and on application of the legislature, or of the executive (if the legislature could not be convened), it should protect them against domestic violence. This arrangement did not fully provide against such an emergency as that of rival and hostile executives in the same state, as under the so-called "carpet-bag" governments which followed after the War of Secession, but it was doubtless as sound a provision as any general const.i.tution could make.

The federal government was further empowered to borrow money on the credit of the United States; and it was declared that all debts contracted and engagements entered into before the adoption of this const.i.tution should be as valid against the United States under this const.i.tution as under the confederation. There was to be no repudiation or readjustment of debts on the ground of inability to pay. Congress was further empowered to establish a uniform rule of naturalization and a uniform law of bankruptcy. But it was prohibited from pa.s.sing bills of attainder or _ex post facto_ laws, or suspending the writ of _habeas corpus_, except under the stress of rebellion or invasion. It was provided that all duties, imposts, or excises should be uniform throughout the United States. The federal government could not give preference to one state over another in its commercial regulations. It could not tax exports. It could not draw money from the treasury save by due process of appropriation, and all bills relating to the raising of revenue must originate in the lower house, which directly represented the people. Congress was empowered to admit new states into the Union, but it was not allowed to interfere with the territorial areas of states already existing without the express consent of the local legislatures.

To insure the independence of the federal government, it was provided that senators and representatives should be paid out of the federal treasury, and not by their respective states, as had been the case under the confederation. Except for such offences as treason, felony, or breach of the peace, they should be "privileged from arrest during their attendance, at the session of their respective houses, and in going to or returning from the same; and for any speech or debate in either house" they were not to be "questioned in any other place." It was further provided that a territory not exceeding ten miles square should be ceded to the United States, and set apart as the site of a federal city, in which the general government should ever after hold its meetings, erect its buildings, and exercise exclusive jurisdiction.