Part 4

The members of the convention kept its secrets inviolate for many years. With few exceptions, the great secrets of the convention died with them. Only one, James Madison, left a comprehensive statement of the more formal proceedings. With this notable exception, only a few anecdotes, handed down by tradition, escaped oblivion. The first of the number to break the pledge of secrecy was Robert Yates, Chief Justice of New York, who, in 1821, published his recollections; but, as he had left the convention a few months after it began, his notes ceased with the 5th of July.

The world would thus have been for ever ignorant of the details of one of the most remarkable conventions in the annals of mankind had it not been that one of the ablest of their number, James Madison, regularly attended the sessions and kept notes from day to day of the debates. While he was not a stenographer, he had a gift for condensing a speech and fairly representing its substance. He jealously guarded his Journal of the Convention until his death. Its very existence was known to few. He died in 1836, and four years later the government purchased the manuscript from his widow. Then, for the first time, the curtain was measurably raised upon the proceedings of a convention which had created, as we now know, one of the greatest nations in history. Fifty-three years after the close of the convention, and when nearly every one of its participants were dead, Madison's Journal was first published.

When was a great secret better kept? Grateful as posterity must be for this inestimable gift of great human enterprise, yet even Madison's careful journal fills one with the deepest regret that this wonderful debate, which lasted for nearly four months between men of no ordinary ability, could not have been preserved to the world.

Two or three of the speeches which Madison gives in his Journal are complete, for when Doctor Franklin spoke he reduced his remarks to writing and gave a copy to Madison, but of the other speeches only a fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton, addressed the convention in a speech that lasted five hours, in which he stated his philosophy of government, but of that only a short condensation, and possibly not even an accurate fragment, remains.

Without this extraordinary provision for secrecy, which is so opposed to modern democratic conventions, and which so little resembles the famous point as to "open covenants openly arrived at," the convention could not have accomplished its great work, for these wise men realized that a statesman cannot act wisely under the observation of a gallery, and especially when the gallery compels him by the pressure of public opinion to work as it directs. I recognize that public opinion--often temporarily uninformed but in the end generally right--does often save the democracies of the world from the selfish ends of self-seeking and misguided leadership; but, given noble and wise representatives, they work best when least influenced by the fleeting passions of the day.

It is evident that if the framers of the Constitution had met, as similar conventions have within recent years met at Versailles and Genoa, with the world as their gallery and with the representatives of the Press as an integral part of the conference, they would have accomplished nothing. The probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. It may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, I fear, prove a witches' cauldron of class legislation and demagoguery. Is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? Again the words of Washington suggest themselves: "If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair."

Working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man.

The rules of order and the nature of the proceedings thus determined, the convention opened by an address by Mr. Randolph of Virginia, in which he submitted, in the form of fifteen points--nearly the number of the fatal fourteen--the outlines for a new government. He himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of States) but "a strong consolidated union." Upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. The plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the States. This legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several States contravening in the opinion of the national legislature the Articles of the Union."

A national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." This marked an immense advance over the Articles of Confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the States, and could only impose duties upon the States themselves by the concurrence of nine of the thirteen.

Hardly had Mr. Randolph submitted the so-called Virginia plan when Charles Pinckney, of South Carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the House a draft of the future federal government. Curiously enough, it did not differ in principle from the Virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. Indeed, Pinckney's plan was the future Constitution of the United States in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the Federal Government. As the only copy of Pinckney's plan was furnished years afterwards to Madison for his journal, it is possible that some of its wisdom was of the _post factum_ variety.

Having received the two plans, the convention then went, on May 30, into a committee of the whole to consider the fifteen propositions in the Virginia plan _seriatim_. They wisely concluded to determine abstract ideas first and concrete forms later. Apparently for the time being little attention was paid to Pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth.

Then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. On June 13 the committee rose. Even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. There were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of States or an association of nations between the great and the little States.

The five larger States had a population that was nearly twice as great as the remaining eight States. Thus Virginia's population was nearly ten-fold as great as Georgia. Moreover, the States differed greatly in their material wealth and power. Nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each State, large or small, voted as a unit), should and must be preserved in the future government. To this the larger States were quite unwilling to yield, and when the committee rose they reported, in substance, the Virginia plan, with the proviso that representation in the proposed double-chambered Congress should be "according to some equitable ratio of representation."

On June 15 the small States presented their draft, which was afterwards known as the New Jersey plan, because it was introduced by Mr. Patterson of that State. It only contemplated an amendment to the existing Constitution and an amplification of the powers of the impotent Confederation. Its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of States, in which the central government could generally act only by the vote of nine States, and in which their power was exhausted when they requested the States to enforce the decrees. Its chief advance over the Articles of Confederation, in addition to the creation of an executive, was an assertion that the acts of Congress "shall be the supreme law of the respective States ... and that the judiciary of the several States shall be bound thereby in their decisions," and that "if any State or any body of men in any State shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated States ... to enforce and compel obedience to such acts or an observance of such treaties."

While this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent States, for if they failed to respond to the call above stated the national government had no direct power over their citizens.

The New Jersey plan precipitated a crisis, and thereafter, and for many days, the argument proceeded, only to increase in bitterness.

On June 18 Alexander Hamilton, who agreed with no one else, addressed the convention for the first time. He spoke for five hours and reviewed exhaustively the Virginia and New Jersey plans, and possibly the Pinckney draft. Even the fragment of the speech, as taken in long-hand by Madison, shows that it was a masterly argument. He stated his belief "that the British Government was the best in the world and that he doubted much whether anything short of it would do in America." He praised the British Constitution, quoting Monsieur Necker as saying that "it was the only government in the world which unites government strength with individual security." He analysed and explained your Constitution as it then was and advocated an elective monarchy in form though not in name. It is true that he called the executive a "governor" and not a king, but the governor, so-called, was to serve for life and was given not only "a negative on all laws about to be passed," but even the execution of all duly enacted laws was in his discretion. The governor, with the consent of the Senate, was to make war, conclude all treaties, make all appointments, pardon all offences, with the full power through his negative of saying what laws should be passed and which enforced. Hamilton's governor would have been not dissimilar to Louis XIV, and could have said with him, "_L'état, c'est moi_!" The Senate also served for life, and the only concession which Hamilton made to democracy was an elective house of representatives. Thinly veiled, his plan contemplated an elective king with greater powers than those of George III, an imitation House of Lords and a popular House of Commons with a limited tenure.

Hamilton's plan was never taken seriously and, so far as the records show, was never afterwards considered. His admirers have given great praise to his work in the federal convention. His real contribution lay in the fact that when the Constitution was finally drafted and offered to the people, while he regarded it as a "wretched makeshift," to use his own expression, yet he was broad and patriotic enough to surrender his own views and advocate the adoption of the Constitution. In so doing, he fought a valorous fight, secured the acquiescence of the State of New York, and without its ratification the Constitution would never have been adopted. Hamilton later thought better of the Constitution, and its successful beginning is due in large measure to his genius for constructive administration.

As the debate proceeded, the crisis precipitated by the seemingly insoluble differences between the great and little States became more acute. The smaller States contended that the convention was transgressing its powers, and they demanded that the credentials of the various members be read. In this there was technical accuracy, for the delegates had been appointed to revise the Articles of Confederation and not to adopt a new Constitution. A majority of the convention, however, insisted upon the convention proceeding with the consideration of a new Constitution, and their views prevailed. It speaks well for the honour of the delegates that although their differences became so acute as to lead at times to bitter expressions, neither side divulged them to the outside public. The smaller States could easily have ended the convention by an appeal to public opinion, which was not then prepared for a "consolidated union," but they were loyal enough to fight out their quarrels within the walls of the convention hall.

At times the debate became bitter in the extreme. James Wilson, a delegate of Pennsylvania and a Scotchman by birth and education, turning to the representatives of the little States, passionately said:

"Will you abandon a country to which you are bound by so many strong and enduring ties? Should the event happen, it will neither stagger my sentiments nor duty. If the minority of the people refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds."

He referred to the demand of the larger States that representation should be proportioned to the population. To this Bedford, of Delaware, as heatedly replied;

"We have been told with a dictatorial air that this is the last moment for a fair trial in favour of good government. It will be the last, indeed, if the propositions reported by the committee go forth to the people. The large States dare not dissolve the convention. If they do, the small ones will find some foreign ally of more honour and good faith, who will take them by the hand and do them justice."

Finally, the smaller States gave their ultimatum to the larger States that unless representation in both branches of the proposed legislature should be on the basis of equality--each State, whether large or small, having one vote--they would forthwith leave the convention. An eye-witness says that, at that moment, Washington, who was in the chair, gave old Doctor Franklin a significant look. Franklin arose and moved an adjournment for forty-eight hours, with the understanding that the delegates should confer with those with whom they disagreed rather than with those with whom they agreed.

A recess was taken, and when the convention re-convened on July 2, a vote was taken as to equality of representation in the Senate and resulted in a tie vote. It was then decided to appoint a committee of eleven, one from each State, to consider the question, and this committee reported three days later, on July 5, in favour of proportionate representation in the House and equal representation in the Senate. This suggestion, which finally saved the situation, was due to that wise old utilitarian philosopher, Franklin. Again, a vehement and passionate debate followed. Vague references were made to the sword as the only method of solving the difference.

On July 9 the committee again reported, maintaining the principle of their recommendation, while modifying its details, and the debate then turned upon the question to what extent the negro slaves should count in estimating population for the purposes of proportionate representation in the lower House. Various suggestions were made to base representation upon wealth or taxation and not upon population. For several days the debate lasted during very heated weather, but on the night of July 12 the temperature dropped and with it the emotional temperature of the delegates.

Some days previous, namely, June 28, when the debates were becoming so bitter that it seemed unlikely that the convention could continue, Doctor Franklin, erroneously supposed by many to be an atheist, made the following solemn and beautiful appeal to their better natures. He said:

"The small progress we have made after four or five weeks' close attendance and continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ayes, is, methinks, a melancholy proof of the imperfection of the human understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of government, and examined the different forms of those Republics which, having been formed with the seeds of their own dissolution, now no longer exist. And we have viewed modern States all around Europe, but find none of their constitutions suitable to our circumstances.

"In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of Lights to illuminate our understandings?... And have we now forgotten that powerful Friend or do we imagine that we no longer need His assistance? I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth: That _God governs in the affairs of men_. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been assured, sir, in the sacred writings, that 'except the Lord build the House they labour in vain that build it.' I firmly believe this; and I also believe that without His concurring aid we shall succeed in this political building no better than the builders of Babel. We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing governments by human wisdom and leave it to chance, war, and conquest.

"I therefore beg leave to move that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service."

It may surprise my audience to know the sequel. The resolution was voted down, partly on the ground that if it became known to the public that the convention had finally resorted to prayers it might cause undue alarm, but also because the convention was by that time so low in funds that, as one of the members said, it did not have enough money to pay a clergyman his fees for the service. I suspect that their controlling reason was their indisposition to break their self-imposed rule of secrecy by contact with the outer world until their work was completed. Perhaps they thought that "God helps those who help themselves."

On July 16 the compromise was finally adopted of recognizing the claims of the larger States to proportionate representation in the House of Representatives, and recognizing the claims of the smaller States by according to them equal representation in the Senate. This great result was not effected without the first break in the convention, for the delegates from New York left in disgust and never returned, with the exception of Hamilton, who occasionally attended subsequent sessions. Such was the great concession that was made to secure the Constitution; and the only respect in which the Constitution to-day cannot be amended is that by express provision the equality of representation in the Senate shall never be disturbed. Thus it is that to-day some States, which have less population than some of the wards in the city of New York, have as many votes in the Senate as the great State of New York. It is unquestionably a palpable negation of majority rule, for as no measure can become a law without the concurrence of the Senate--now numbering ninety-six Senators--a combination of the little States, whoso aggregate population is not a fifth of the American people, can defeat the will of the remaining four-fifths. Pennsylvania and New York, with nearly one-sixth of the entire population of the United States, have only four votes in ninety-six votes in the Senate.

Fortunately, political alignments have rarely been between the greater and the smaller States exclusively. Their equality in the Senate was a big price to pay for the Union, but, as the event has shown, not too great.

The convention next turned its attention to the Executive and the manner of its selection, and upon this point there was the widest contrariety of view, but, fortunately, without the acute feeling that the relative power of the States had occasioned.

Then the judiciary article was taken up, and there was much earnest discussion as to whether the new Constitution should embody the French idea of giving to the judiciary, in conjunction with the Executive, a revisory power over legislation. Three times the convention voted upon this dangerous proposition, and on one occasion it was only defeated by a single vote. Fortunately, the good sense of the convention rejected a proposition, that had caused in France constant conflicts between the Executive and the Judiciary, by substituting the right of the President to veto congressional legislation, with the right of Congress, by a two-thirds vote of each House, to override the veto, and secondly by an implied power in the Judiciary to annul Congressional or State legislation, not on the grounds of policy, but on the sole ground of inconsistency with the paramount law of the Constitution. In this adjustment, the influence of Montesquieu was evident.

These and many practical details had resulted in an expansion of the fifteen proposals of the Virginia plan to twenty-three.