Now follows a notable and yet little known scene in the drama of history. It reveals a people who, without shedding a drop of blood, calmly and deliberately abolished one government, substituted another, and erected it upon foundations which have hitherto proved enduring. Even the superstructure slowly erected upon these foundations has suffered little change in the most changing period of the world's history, and until recently its additions, few in number, have varied little from the plans of the original architects. The Constitution is to-day, not a ruined Parthenon, but rather as one of those Gothic masterpieces, against which the storms of passionate strife have beaten in vain. The foundations were laid at a time when disorder was rampant and anarchy widely prevalent. As I have already shown in my first lecture, credit was gone, business paralysed, lawlessness triumphant, and not only between class and class, but between State and State, there were acute controversies and an alarming disunity of spirit. To weld thirteen jealous and discordant States, demoralized by an exhausting war, into a unified and efficient nation against their wills, was a seemingly impossible task. Frederick the so-called Great had said that a federal union of widely scattered communities was impossible. Its final accomplishment has blinded the world to the essential difficulty of the problem.
The time was May 25, 1787; the place, the State House in Philadelphia, a little town of not more than 20,000 people, and, at that time, as remote, measured by the facilities of communication, to the centres of civilization as is now Vladivostok.
The dramatis personae in this drama, though few in numbers, were, however, worthy of the task.
Seventy-two had originally been offered or given credentials, for each State was permitted to send as many delegates as it pleased, inasmuch as the States were to vote in the convention as units. Of these, the greatest actual attendance was fifty-five, and at the end of the convention a saving remnant of only thirty-nine remained to finish a work which was to immortalize its participants.
While this notable group of men contained a few merchants, financiers, farmers, doctors, educators, and soldiers, of the remainder, at least thirty-one were lawyers, and of these many had been justices of the local courts and executive officers of the commonwealths. Four had studied in the Inner Temple, at least five in the Middle Temple, one at Oxford under the tuition of Blackstone and two in Scottish Universities. Few of them were inexperienced in public affairs, for of the original fifty-five members, thirty-nine had been members of the first or second Continental Congresses, and eight had already helped to frame the constitutions of their respective States. At least twenty-two were college graduates, of whom nine were graduates of Princeton, three of Yale, two of Harvard, four of William and Mary, and one each from the Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already enjoyed world-wide fame, notably Doctor Franklin, possibly the most versatile genius of the eighteenth century and universally known and honoured as a scientist, philosopher, and diplomat, and George Washington, whose fame, even at that day, had filled the world with the noble purity of his character.
It was a convention of comparatively young men, the average age being little above forty. Franklin was the oldest member, being then eighty-one; Dayton, the youngest, being twenty-seven. With the exception of Franklin and Washington, most of the potential personalities in the convention were under forty. Thus, James Madison, who contributed so largely to the plan that he is sometimes called "The Father of the Constitution," was thirty-six. Charles Pinckney, who, unaided, submitted the first concrete draft of the Constitution, was only twenty-nine, and Alexander Hamilton, who was destined to take a leading part in securing its ratification by his powerful oratory and his very able commentaries in the Federalist papers, was only thirty.
Above all they were a group of gentlemen of substance and honour, who could debate for four months during the depressing weather of a hot summer without losing their tempers, except momentarily—and this despite vital differences—and who showed that genius for toleration and reconciliation of conflicting views inspired by a common fidelity to a great objective that is the highest mark of statesmanship. They represented the spirit of representative government at its best in avoiding the cowardice of time-servers and the low cunning of demagogues. All apparently were inspired by a fine spirit of self-effacement. Selfish ambition was conspicuously absent. They differed, at times heatedly, but always as gentlemen of candour and honour. The very secrecy of their deliberations, of which I shall presently speak, is ample proof how indifferent they were to popular applause and the civium ardor prava jubentium.
The convention had been slow in assembling. Ample notice had been given that it would convene on May 13, 1787, but when that day arrived a mere handful of the delegates, less than a quorum, had assembled.
The Virginia delegation, six in number, and forming probably the ablest delegation from any State, arriving in time, and failing to find a quorum then assembled, employed the period of waiting in submitting to the Pennsylvania delegation the outlines of a plan for the new Constitution. The plan was largely the work of James Madison, and how long it had been in preparation cannot be definitely stated. It is clear that four years before a Philadelphia merchant, one Peletiah Webster, had published a brochure proposing a scheme of dual sovereignty, under which the citizens would owe a double allegiance—one to the constituent States within the sphere of their reserved powers, and one to a federated government within the sphere of its delegated powers. Leagues of States had often existed, but a league which, within a prescribed sphere, would have direct authority over the citizens of the constituent States, without, however, abolishing the authority of such States as to their reserved sphere of power, was a novel theory. How far the Virginia project had been influenced by Webster's suggestion is not clear, but it is certain that before the convention met Pennsylvania and Virginia, two of the most powerful States, were committed to it.
The suggestion was a radical one, for the States, with few exceptions, were chiefly insistent upon the preservation of their sovereignty, and while they were willing to amend the Articles of Confederation by giving fuller authority to the central government, such as it was, the suggestion of subordinating the States to a new sovereign power, whose authority within circumscribed limits was to be supreme, was opposed to all their conventions and traditions. Washington, however, had warmly welcomed the creation of a strong central government, and his correspondence with the leading men of the colonies for some years previously had been burdened with arguments to convince them that a mere league of States would not suffice to create a stable nation. To George Washington, soldier and statesman, is due above all men the ideal of a federated union, for without his influence—that of a noble and unselfish leader—the great result would probably never have been secured. While still waiting for the convention, to meet, and while discussing what was expedient and practicable when they did meet, Washington one day said to a group of delegates, who were considering the acute nature of the crisis:
"It is too probable that no plan that we propose will be adopted. Perhaps another dreadful conflict is to be sustained. 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. The event is in the hand of God."
Noble words, fit to be written in letters of gold over the portal of every legislature of the world, and it was in this spirit that the convention finally convened on May 25th, 1787.
When the delegates from nine States had assembled, Washington was unanimously elected the presiding officer of the convention. It began by adopting rules of order, and the most significant of these was the provision for secrecy. No copy should be taken of any entry on the Journal, or even permission given to inspect it, without leave of the convention, and "nothing spoken in the house be printed or otherwise published or communicated without leave." The yeas and nays should not be recorded. The rule of secrecy was enlarged by an unwritten understanding that, even when the convention had adjourned, no disclosure should be made of its proceedings during the life of its members. When after nearly four months, the convention adjourned, the secret had been kept, and no one knew even the concrete result of its deliberations until the Constitution itself, and nothing else, was offered to the approval of the people. The high-way, upon which the State House fronted, was covered with earth, to deaden the noise of traffic, and sentries were posted at every means of ingress and egress, to prevent any intrusion upon the privacy of the convention. The members were not photographed daily for the pictorial Press, nor did any cinema register their entrance into the simple colonial hall where they were to meet. Notwithstanding this limitation—for no present-day conference or assembly can proceed with its labours until its members are photographed for the curiosity of the public—these simple-minded gentlemen—less intent upon their appearance than their task—were to accomplish a work of enduring importance.
The extreme care which was taken to preserve this secrecy inviolate, and its purpose, were indicated in an incident handed down by tradition.
One of the members dropped a copy of a proposition then before the convention for consideration, and it was found by another of the delegates and handed to General Washington. At the conclusion of the session, Washington arose and sternly reprimanded the member for his carelessness by saying:
"I must entreat gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. I know not whose paper it is, but there it is [throwing it down on the table]. Let him who owns it, take it."
He then bowed, picked up his hat and left the room with such evidences of annoyance that, like school-children, no delegate was willing to admit the ownership of the paper.
The thought suggests itself: How different the result at Versailles and Genoa might have been had there been the same reasonable provisions for discussion and action uninfluenced by too premature public comment of the day! In these days, when representative government has degenerated into government by a fleeting public opinion, the price we pay for such government by, for and of the Press, is too often the inability of representatives to do what they deem wise and just.
At the close of the convention its records were committed into the keeping of Washington, with instructions to "retain the journal and other papers, subject to order of Congress, if ever formed under the Constitution."
Even the journal consisted of little more than daily memoranda, from which the minutes ought to have been, but never were, made; and these fragmentary records of the proceedings of a convention which had been in continuous session for nearly four months were never published until the year 1819, or thirty-two years after the close of the convention. Thus, the American people knew nothing of their greatest convention until a generation later, and then only a few bones of the mastodon were exhibited to their curious gaze.
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 pr............