CHAPTER XVIII

THE CONSTITUTION

1787

On the 25th of May, enough members appeared in Philadelphia to organize the convention. It assembled in the room in which the Declaration of Independence had been debated and signed. Seven of the members of the convention had signed that great paper, and four had signed the Articles of Confederation. All were greatly distinguished for their public services in Congress, on the bench, in the army, and in the assemblies. Among the members were Washington and Franklin, Robert Morris, Roger Sherman, James Madison, Alexander Hamilton, John Rutledge, Elbridge Gerry, and Charles C. Pinckney. Washington was unanimously chosen presiding officer. All summer long the convention met in secret session. On the 17th of September, thirty-nine of the fifty-four delegates who had attended affixed their names to the Constitution of the United States. It was the result of several compromises.

The delegates knew that no form of national government had any chance of succeeding which did not embody the best features of the state governments and the Articles of Confederation. In other words, the new plan must conform to the civil experience of the country. While this condition seems an easy one with which to comply, many details of it proved difficult. No one thought of departing from the familiar division of civil functions, legislative, executive, and judiciary, and the division was made more perfect in the national Constitution than it had been in any state constitution. The titles for the several departments were supplied by long use in the states and colonies. Since 1689 the term "congress" had become familiar to the people, and particularly since 1765. The upper house was

called the senate in eight states,* and the lower house, the house of representatives in four.†

The title "president" had been in use since 1609 in Virginia, the chief officer of the old London and Plymouth companies having borne the name; but in more recent years, since the organization of the states in 1776, it had been given by the people of four of them to their chief executive, and had been the name of the principal official of the Continental Congress and of the Congress of the confederation.

In each state there were a supreme court and inferior courts, and the general titles were preserved in the national Constitution. In all the states the judges were appointed by the executive, usually with the consent of the upper house, a method now continued in the Constitution by the federal convention.

There were important details in the state governments with which the people were familiar, and which could not be wisely omitted from the new Constitution. The retirement of a portion of the senate at regular periods prevailed in four states. The exclusive power of the lower house to originate money bills was peculiar to New England, though from time immemorial the practice of the British Parliament. The ordinary powers of Congress were like those common to the state legislatures.

But as soon as the convention passed beyond these common provisions it entered upon many difficulties, some of which seemed for a time to be beyond power of settlement. Chief of these difficulties were representation, the presidency, and the powers of Congress. All these were embodied in the fundamental question, Shall the new government, "the more perfect union," be national or federal in character? If it was to be strictly national, then representation in both branches of Congress would be in proportion to population; if it was to be strictly federal, representation in both branches would be equal. In a strictly

* Virginia, Maryland, North Carolina, New York, New Hampshire, Massachusetts, Connecticut, and Rhode Island.

New England.

New York, Pennsylvania, Virginia, and Delaware.

1787]

THE CONVENTION AT WORK

285

national government the people would be represented; in a strictly federal one, the states. The difficulty was intensified by the existence of slavery. Should slaves and freemen be represented equally? Opinions were conflicting and radical, and after anxious debate, both parties agreed to concessions. The new government was made partly national and partly federal; the states were to be represented each by two Senators; the House of Representatives should represent the people, each state having its proportion of members, to be determined by a census every ten years. Three-fifths of the slave population should be counted as freemen in the basis of representation

The organization, term, and powers of the executive were the last things settled by the convention. There was a prevailing distrust of a vigorous executive with a long term. Finally, the term of four years with re-eligibility was accepted. The term of the President's office being short, the convention relied on the people to select proper men from time to time. This detail having been settled, it was easier to agree on the President's powers; and in assigning them, the convention clearly followed the state constitutions. Every state except Rhode Island made the executive commander-in-chief of its army and navy; all except Rhode Island and Connecticut intrusted him with the pardoning power; all required him to take an oath of office. The governor of New York nominated. for office, to the Senate; the governor of North Carolina filled vacancies in state offices till a new election or a regular appointment. Other presidential powers were suggested by the necessities of the plan which the convention was framing.

Even the office of Vice-President, which at first was hailed as superfluous, and which was suggested during the last days of the convention, had its original among the states, five of which had their deputy governor, or lieutenant-governor.* The lieutenant-governor of New York presided over the senate, and voted, but only in case of a tie, an arrangement copied in our national Constitution.

*Delaware, Pennsylvania, New Hampshire, South Carolina, and New York.

North Carolina provided for a successor in case of the death of the governor-a provision duly cared for in the Constitution. The best method of choosing the President long engaged the attention of the convention. James Wilson, a delegate from Pennsylvania, urged a direct vote by the people, but this method was viewed by his colleagues as dangerously democratic. The method finally chosen, an election by special electors, now for many years popularly called the "Electoral College, was an experiment, and believed by the delegates to be a very excellent one. The senate of Maryland was chosen by special electors, and this precedent was cited. It appears, however, that the method finally agreed on was taken, not so much because of intrinsic excellence as because every other method proposed met with strong factional opposition. So the "Electoral College" was a compromise, and has proved not altogether a satisfactory one. It has led to one amendment of the Constitution.*

It is well to bear in mind, respecting our national plan of government, the Constitution of the United States, that it is the embodiment of civil and political experience in the Old World and in the New. Its makers adhered closely to American experience as set forth in the state constitutions. They differed widely in their political opinions, some wishing a national government, others a federal government. The result was a compromise. The government of the United States is partly federal and partly national in character.

The convention began its work with a discussion of a plan submitted by the Virginia delegates, which declared that "a union of the states merely federal" would "not accomplish the objects proposed by the Articles of Confederation-namely, common defense, security of liberty, and general welfare'-and therefore proposed "that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." The New Jersey delegates submitted a plan for a revision of the articles. Hamilton also submitted suggestions. By the Virginia plan, the nation would be supreme; by the New *The twelfth.

1787]

SOURCES OF THE CONSTITUTION

287

Jersey plan, the states would continue supreme. After much debate, the Virginia plan was made the basis of the new Constitution. But some provisions of the New Jersey plan, and others suggested by Hamilton, were adopted. The most difficult matters to settle were representation and taxation. These were compromised.

The two compromises on representation were equal representation in the Senate and proportional representation in the House. The large (populous) states objected to the first; the small states to the second. The compromise on taxation was in part a compromise on representation also. It provided that the importation of slaves should cease in twenty-one years-that is, in 1808; that three-fifths of the slaves should count in representation, and that Congress might tax imports—that is, might pass a tariff law.

The slave states wanted every slave to count as a free white in representation, and also favored the continuation of the slave trade. The free (commercial) states wanted the slaves omitted from the basis of representation, and also wanted to empower Congress to levy duties, excises, and customs on imports and exports. Each section gave up something and gained something. The result was the Constitution.

From the state constitutions came the division into legislative power, executive power, and judicial power; the titles House of Representatives, Senate, President, and Supreme Court; the special power of the House to originate money bills; the two years' term of Congressmen; the method of representation in the House and in the Senate; the retiring clause for the Senate; the appointment of judges by the President, with consent of the Senate; the powers of the President-to veto a bill, to pardon, to command the army and navy, to nominate to office, to fill vacancies, and to send annual and special messages.

The state constitutions also suggested the office of Vice-President, and his succession to the presidency; the provision of a census; the rules of procedure in Congress, and the method of choosing the President by "electors."

From the Articles of Confederation came the title "congress," long in use, however, by the states, and the