Volume I Part 7 (1/2)
The delegates from Maryland were appointed by the General a.s.sembly of that State, and instructed ”to meet such deputies as may be appointed and authorized by any other of the United States, to a.s.semble in convention at Philadelphia, for the purpose of revising the Federal system, and to join with them in considering such alterations and further provisions,” etc.-the remainder of their instructions being in the same words as those given to the Georgia delegates.
The instructions given to the deputies of Delaware were [pg 93] substantially in accord with the others-being almost literally identical with those of Pennsylvania-but the following proviso was added: ”So, always, and provided, that such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the Confederation of the said States, finally ratified on the first day of March, in the year 1781, which declares that, 'in determining questions in the United States in Congress a.s.sembled, each State shall have one vote.'”
Rhode Island, as has already been mentioned, sent no delegates.
From an examination and comparison of the enactments and instructions above quoted, we may derive certain conclusions, so obvious that they need only to be stated:
1. In the first place, it is clear that the delegates to the Convention of 1787 represented, not the people of the United States in ma.s.s, as has been most absurdly contended by some political writers, but the people of the several States, as States-just as in the Congress of that period-Delaware, with her sixty thousand inhabitants, having entire equality with Pennsylvania, which had more than four hundred thousand, or Virginia, with her seven hundred and fifty thousand.
2. The object for which they were appointed was not to organize a new Government, but ”solely and expressly” to amend the ”Federal Const.i.tution” already existing; in other words, ”to revise the Articles of Confederation,” and to suggest such ”alterations” or additional ”provisions” as should be deemed necessary to render them ”adequate to the exigencies of the Union.”
3. It is evident that the term ”Federal Const.i.tution,” or its equivalent, ”Const.i.tution of the Federal Government,” was as freely and familiarly applied to the system of government established by the Articles of Confederation-undeniably a league or compact between States expressly retaining their sovereignty and independence-as to that amended system which was subst.i.tuted for it by the Const.i.tution that superseded those articles.
4. The functions of the delegates to the Convention were, of course, only to devise, deliberate, and discuss. No validity could attach to any action taken, unless and until it should be [pg 94] afterward ratified by the several States. It is evident, also, that what was contemplated was the process provided in the Articles of Confederation for their own amendment-first, a recommendation by the Congress; and, afterward, ratification ”by the Legislatures of every State,” before the amendment should be obligatory upon any. The departure from this condition, which actually occurred, will presently be noticed.
Footnote 29: (return) Dr. Worcester.
Footnote 30: (return) This definition is very good as far as it goes, but ”the form of government” is a phrase which falls short of expressing all that should be comprehended. Perhaps it would be more accurate to say, ”which const.i.tute the form, define the powers, and prescribe the functions of government,” etc. The words in italics would make the definition more complete.
CHAPTER II.
The Convention of 1787.-Diversity of Opinion.-Luther Martin's Account of the Three Parties.-The Question of Representation.-Compromise effected.-Mr. Randolph's Resolutions.-The Word ”National” condemned.-Plan of Government framed.-Difficulty with Regard to Ratification, and its Solution.-Provision for Secession from the Union.-Views of Mr. Gerry and Mr. Madison.-False Interpretations.-Close of the Convention.
When the Convention met in Philadelphia, in May, 1787, it soon became evident that the work before it would take a wider range and involve more radical changes in the ”Federal Const.i.tution” than had at first been contemplated. Under the Articles of Confederation the General Government was obliged to rely upon the governments of the several States for the execution of its enactments. Except its own officers and employees, and in time of war the Federal army and navy, it could exercise no control upon individual citizens. With regard to the States, no compulsory or coercive measures could be employed to enforce its authority, in case of opposition or indifference to its exercise. This last was a feature of the Confederation which it was not desirable nor possible to change, and no objection was made to it; but it was generally admitted that some machinery should be devised to enable the General Government to exercise its legitimate functions by means of a mandatory authority operating directly upon the individual citizens within the limits of its const.i.tutional powers. The necessity for such provision was undisputed.
Beyond the common ground of a recognition of this necessity [pg 95] there was a wide diversity of opinion among the members of the Convention. Luther Martin, a delegate from Maryland, in an account of its proceedings, afterward given to the Legislature of that State, cla.s.sifies these differences as const.i.tuting three parties in the Convention, which he describes as follows:
”One party, whose object and wish it was to abolish and annihilate all State governments, and to bring forward one General Government over this extensive continent of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment were, it is true, but few; yet it is equally true that there was a considerable number, who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment....
”The second party was not for the abolition of the State governments nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence in the government over the other States.
”A third party was what I considered truly federal and republican. This party was nearly equal in number with the other two, and was composed of the delegates from Connecticut, New York, New Jersey, Delaware, and in part from Maryland; also of some individuals from other representations. This party were for proceeding upon terms of federal equality: they were for taking our present federal system as the basis of their proceedings, and, as far as experience had shown that other powers were necessary to the Federal Government, to give those powers. They considered this the object for which they were sent by their States, and what their States expected from them.”
In his account of the second party above described, Mr. Martin refers to those representatives of the larger States who wished to establish a numerical basis of representation in the Congress, instead of the equal representation of the States (whether large or small) which existed under the Articles of Confederation. There was naturally much dissatisfaction on the part of the greater States-Virginia, Pennsylvania, North Carolina, and Ma.s.sachusetts-whose population at that period exceeded that [pg 96] of all the others combined, but which, in the Congress, const.i.tuted less than one third of the voting strength. On the other hand, the smaller States were tenacious of their equality in the Union. Of the very smallest, one, as we have seen, had sent no representatives to the Convention, and the other had instructed her delegates, unconditionally, to insist upon the maintenance of absolute equality in the Congress. This difference gave more trouble than any other question that came before the Convention, and for some time threatened to prove irreconcilable and to hinder any final agreement. It was ultimately settled by a compromise. Provision was made for the representation of the people of the States in one branch of the Federal Legislature (the House of Representatives) in proportion to their numbers; in the other branch (the Senate), for the equal representation of the States as such. The perpetuity of this equality was furthermore guaranteed by a stipulation that no State should ever be deprived of its equal suffrage in the Senate without its own consent.31 This compromise required no sacrifice of principle on either side, and no provision of the Const.i.tution has in practice proved more entirely satisfactory.
It is not necessary, and would be beyond the scope of this work, to undertake to give a history of the proceedings of the Convention of 1787. That may be obtained from other sources. All that is requisite for the present purpose is to notice a few particulars of special significance or relevancy to the subject of inquiry.
Early in the session of the Convention a series of resolutions was introduced by Mr. Edmund Randolph, of Virginia, embodying a proposed plan of government, which were considered in committee of the whole House, and formed the basis of a protracted discussion. The first of these resolutions, as amended before a vote was taken, was in these words:
”Resolved, That it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary.”
This was followed by other resolutions-twenty-three in all, [pg 97] as adopted and reported by the committee-in which the word ”national” occurred twenty-six times.
The day after the report of the committee was made, Mr. Ellsworth, of Connecticut, moved to strike out the words ”national Government” in the resolution above quoted, and to insert the words ”Government of the United States,” which he said was the proper t.i.tle. ”He wished also the plan to go forth as an amendment of the Articles of Confederation.”32 That is to say, he wished to avoid even the appearance of undertaking to form a new government, instead of reforming the old one, which was the proper object of the Convention. This motion was agreed to without opposition, and, as a consequence, the word ”national” was stricken out wherever it occurred, and nowhere makes its appearance in the Const.i.tution finally adopted. The prompt rejection, after introduction, of this word ”national,” is obviously much more expressive of the intent and purpose of the authors of the Const.i.tution than its mere absence from the Const.i.tution would have been. It is a clear indication that they did not mean to give any countenance to the idea which, ”scotched, not killed,” has again reared its mischievous crest in these latter days-that the government which they organized was a consolidated nationality, instead of a confederacy of sovereign members.
Continuing their great work of revision and reorganization, the Convention proceeded to construct the framework of a government for the Confederacy, strictly confined to certain specified and limited powers, but complete in all its parts, legislative, executive, and judicial, and provided with the means for discharging all its functions without interfering with the ”sovereignty, freedom, and independence” of the const.i.tuent States.
All this might have been done without going beyond the [pg 98] limits of their commission ”to revise the Articles of Confederation,” and to consider and report such ”alterations and provisions” as might seem necessary to ”render the Federal Const.i.tution adequate to the exigencies of government and the preservation of the Union.” A serious difficulty, however, was foreseen. The thirteenth and last of the aforesaid articles had this provision, which has already been referred to: ”The Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State.”
It is obvious, from an examination of the records, as has already been shown, that the original idea in calling a Convention was, that their recommendations should take the course prescribed by this article-first, a report to the Congress, and then, if approved by that body, a submission to the various Legislatures for final action. There was no reason to apprehend the non-concurrence of Congress, in which a mere majority would determine the question; but the consent of the Legislatures of ”every State” was requisite in order to final ratification, and there was serious reason to fear that this consent could not be obtained. Rhode Island, as we have seen, had declined to send any representatives to the Convention; of the three delegates from New York, two had withdrawn; and other indications of dissatisfaction had appeared. In case of the failure of a single Legislature to ratify, the labors of the Convention would go for naught, under a strict adherence to the letter of the article above cited. The danger of a total frustration of their efforts was imminent.