The adoption of a formal instrument of union was delayed because of the refusal of some of the colonies to surrender their claims to the western territory. Finally that difficulty was surmounted. The Articles of Confederation, which were drawn by the Continental Congress, were ratified by Maryland, the last State necessary for their adoption, on March 1st, 1781. In drafting these, the Committee unwisely rejected the suggestion of organizing an annual parliament of two houses; 20 and "misled partly by the rooted distrust for which the motive had ceased, and partly by erudition which studied Hellenic councils and leagues as well as later confederacies, took for its pattern the constitution of the United Provinces, with one house and no central power of final decision," 21 as had been done in organizing the Continental Congress. No power was given to the Confederation to levy taxes, contributions being derived from requisitions upon the States, which could not be compelled to pay them; or to regulate commerce, interstate or international; or to create courts, except "for the trial of piracies and felonies committed on the high seas, and for deciding appeals in all cases of captures." 22 The most important powers could not be exercised without the assent of nine States. The articles could not be amended without the assent of all. During the war, the patriotism of the people, and the despotic powers granted to Washington as commander-in-chief, prevented these defects from causing the ruin of the country, although they greatly prolonged the struggle in which Great Britain would have been defeated earlier had adequate powers been vested in the United States. When peace was restored and provision was necessary to pay creditors at home and abroad, the Confederation became openly contemptible. Coincident with the break-down of the Confederation, the several States had been organized under the advice of the Continental Congress, not in imitation of the federal body, but in governments similar to those which had prevailed in them while they were colonies, and analogous to that of Great Britain, with the legislatures generally divided into two houses, and the three 20 This had been suggested by Joseph Hawley of Massachusetts in November, 1775. Bancroft's Formation of the Constitution, p. 11. 21 Bancroft's Formation of the Constitution, p. 11. 22 Articles of Confederation, IX. departments, the executive, the legislative, and the judiciary, independent and co-ordinate. The call of the Federal Convention was the result of a meeting of commissioners from Virginia and Maryland for the purpose of agreeing upon regulations for the navigation of Chesapeake Bay and the rivers Potomac and Pocomoke, who visited the house of Washington in March, 1785.23 § 5. Preliminaries to the Federal Convention. The formal initiative of the Federal Convention was the appointment of commissioners by Virginia and Maryland to draw a compact for the regulation of trade upon the Chesapeake Bay and the Potomac and Pocomoke rivers. These commissioners met at Alexandria in March, 1785, and in the same month visited Mt. Vernon, where they agreed, after consulting with Washington, to recommend a meeting of commissioners from all the States to make arrangements, with the consent of Congress, for the regulation of commerce. Virginia called such a conference, and five States were represented at Annapolis in September, 1786. New Jersey alone had authorized its delegates to consider other important matters" besides commercial regulations, which might be necessary to the common interest and permanent harmony. A report was made, which seems to have been drawn by Hamilton. In it the Commissioners submitted their opinion: "That the idea of extending the powers of their deputies to other objects than those of commerce, which has been adopted by the state of New Jersey, was an improvement on the original plan, and will deserve to be incorporated into that of a future convention. They are the more naturally led to this conclusion, as, in the course of their reflections on the subject, they have been induced to think that the power of regulating trade is of such comprehensive extent, and will enter so far into the general system of the federal government, that, to give it efficacy, and to obviate questions and doubts concerning its 23 The original meeting was held at Alexandria, but the commissioners visited Mt. Vernon where the plan of the meeting of commissioners from all the States was suggested. Marshall's Life of Washington, vol. v, p. 90; § 5. 1 Curtis' Constitutional History of the United States, vol. i, p. 234. precise nature and limits, may require a correspondent adjustment of other parts of the federal system. That there are important defects in the system of the federal government, is acknowledged by the acts of all those states which have concurred in the present meeting; that the defects, upon a closer examination, may be found greater and more numerous than even these acts imply, is at least so far probable, from the embarrassments which characterize the present state of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode which will unite the sentiments and councils of all the states. In the choice of the mode, your commissioners are of opinion that a convention of deputies from the different states, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference, from considerations which will occur without being particularized. Your commissioners decline an enumeration of those national circumstances on which their opinion respecting the propriety of a future convention, with more enlarged powers, is founded; as it would be a useless intrusion of facts and observations, most of which have been frequently the subject of public discussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are, however, of a nature so serious, as, in the view of your commissioners, to render the situation of the United States delicate and critical, calling for the exertion of the united virtue and wisdom of all the members of the confederacy. Under this impression, your commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the Union, if the states, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other states, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every state, will effectually provide for the same." 2 February 21st, 1787, Congress adopted the following resolution: 2 Elliot's Debates, 2d ed., vol. i, pp. 117, 118. "Whereas there is provision in the Articles of Confederation and Perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a means to remedy which, several of the states, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government,-Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal Constitution adequate to the exigencies of government and the preservation of the Union." 8 It was not until the 25th of May, 1787, that a majority of States were represented at Philadelphia. The Federal Convention then organized and elected president George Washington. Rhode Island took no part in the proceedings; but delegates, appointed by the legislatures of the other twelve States, finally appeared. On September 17th the Constitution was completed and was signed by less than three-fourths of the delegates who attended, many of these doubting its wisdom and fearing its failure, but accepting the scheme as the only chance of escape from anarchy and dissolution. The delegates with most influence in the Convention were James Madison of Virginia, the two Pinckneys of South Carolina, Rufus King of Massachusetts, Roger Sherman of Connecticut, James Wilson of Pennsylvania, and Gouverneur Morris of the last named State, to whose pen the style of the instrument owes its symmetry and clarity.5 Hamilton and Franklin would have preferred different forms of government, the former one more aristocratic, the latter more of a democracy; but Franklin rendered great service in promoting harmony in the convention, and Hamilton in securing the subsequent ratification. Congress, eleven days after the close of the Convention, without any recommendation, transmitted the document to the State legislatures for submission to State conventions.6 On June 21, 1788, it was ratified by the ninth State, New Hampshire, and was then binding upon all who had previously acceded; but it did not go into effect until the assemblage of the first Congress at Philadelphia on March 3, 1789.7 § 6. Originality of the Work of the Federal Convention. It was well said by Gladstone that "the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." Sciolists and bookworms have sneered at the phrase as overlooking the indebtedness of the Federal Convention to the teachings of history. But the great statesman of our own time well appreciated the value and the character of the work of the statesmen of the eighteenth century. Their product was new, if anything can be new, unless we destroy the word and adopt the hyperbole of Solomon. The result was as much of an invention as were the first cotton-gin and telephone. Dominated though they were, like all men in every human action, by forces of which they were ignorant, they labored consciously. Avoiding dangers which history and experience had taught them to foresee, they deliberately selected the expedients which they found had proved effective to prevent them. They departed radically from the system of the Confederation. They did not follow blindly the constitution of a single State. They founded the first federal republic which could enact and enforce its laws directly upon its individual citizens. To crown all, they gave powers to courts never before given public recognition, which have been the preservation of the nation as well as of the form of government, and which will eventually be exercised by the tribunals of every civilized people. They were men of few books, but they had read these well. Sept. 28, 1787, Journals XII, pp. 149– 166; cited by Curtis, Constitutional His tory of the United States, vol. i, p. 630. 7 Owings v. Speed, 5 Wheaton, 420. |