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While these fundamental problems were being settled, others scarcely less important were also discussed. Of course, determining the extent of the new government's power, or, rather, the number of its powers, occupied much time and proved a matter of difficulty. The task was "to draw a line of demarkation which would give to the General Government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them." To draw this line with accuracy was as desirable as it was difficult; on the preciseness with which the distribution was made depended, in no small degree, the permanence and effectiveness of the new order. 

The resolutions on this subject, as first adopted, were general in their terms, providing that the national legislature ought to have the powers of the old Congress and the right to legislate in all cases beyond the competence of the individual states. But these general words were in time abandoned for definite statements; a number of distinct powers were specifically granted to the national government; it was empowered to coin money, to establish post-offices, to borrow money, to establish a uniform rule of naturalization, to define and punish piracy on the high seas, to declare war, to raise and support armies, to provide and maintain a navy, to perform certain other duties of a general character, and "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." In thus assigning powers to the national government, the convention carried out the principle of distributing authority between two different kinds of government, of which each was to have its own sphere of political activity.

Whenever the question of representation arose, difficulties disclosed themselves, partly because of the varied character of the states, and partly because the delegates naturally looked after the political interests of their constituents. Though it was decided that there should be proportional representation in the lower house, to agree on the general basis of representation was not easy. If the number of representatives was made to depend on the population alone, the result, some of the delegates believed, would be disastrous; for they greatly feared the increasing influence of the western states that might soon be formed beyond the mountains. Jealousies between the north and south, moreover, came to light and caused anxiety. The northern men could see no propriety in counting slaves on the basis of representation; on the other hand, the southern delegates, especially those from South Carolina and Georgia, were determined that their slaves should be counted. The southern states believed, too, that they were gradually outstripping the north in wealth and population, and that that fact should be taken into account in the assignment of representation and in the plans for a gradual increase. "The people and strength of America," said Butler, of South Carolina, "are evidently bearing Southwardly and Southwestwardly." After the New York delegates had left, and before the appearance of the New Hampshire men, there were only four states north of Mason and Dixon's line on the floor of the convention, while there were six southern states. It was possible, therefore, for the southern states, if they chose, to decide all questions of representation to suit themselves.

Had all the members believed that men, as such, were entitled to representation, the problem would still have been perplexing, but democratic doctrine had not yet advanced so far. The delegates believed that society existed for the preservation of property and that the wealth of the respective states should therefore be taken into account in preparing any scheme of representation.

At the very time when the despised Congress at New York was framing the Ordinance of 1787, the delegates at Philadelphia were soberly discussing the propriety of discriminating against the growing population of the Mississippi Valley. That states should grow up in the west could not be prevented, but perhaps the Constitution might be so framed as to insure their permanent political inferiority. Strange that men who had fought through the war should have entertained toward the new land something of that exalted notion of superiority which lay at the bottom of English incapacity in her dealings with her colonies! Men like Gerry and the hard-fighting Morris had no patience with the frontier, forgetting, that, but a few years before, Pennsylvania was a wilderness, and that to the imagination of Europeans of their own day, Americans were little above the savage. Morris declared that "the Busy haunts of men not the remote wilderness, was the proper school of political Talents. If the Western people get the power into their hands they will ruin the Atlantic interests. The Back members are always most averse to the best measures." Gerry was supported by King in a motion that "to secure the liberties of the States already confederated," the number of representatives sent to the first branch of the national legislature by the new states should never exceed the number sent by the old.

Fortunately, such narrowness did not prevail, though Massachusetts, Connecticut, Delaware, and Maryland voted for the motion; for there were some men who could read America aright and knew that her growth and prosperity waited only on justice. "Ought we to sacrifice," asked Mason, "what we know to be right in itself, lest it should prove favorable to States which are not yet in existence?" "The majority of people," said Wilson, in a spirit more becoming the democratic nineteenth century than his own day, "wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority, it will not only have the right but will avail itself of it whether we will or no. This jealousy misled the policy of Great Britain with regard to America."

The northern men did not say much against the general system of slavery, but they doubted the propriety of counting the slaves on the basis of representation. The whole matter was complicated: to agree that slaves as human beings were entitled to the suffrage and to choose delegates to Congress was of course beyond reason, and no such argument was indulged in; but if members in any community were an indication of its wealth, and if the government was supported by wealth and existed to protect property, there might be some ground for demanding that the whole population, black and white alike, should determine the number of representatives from any state. The delegates from South Carolina insisted that all the slaves should be counted, and were supported when a vote was taken, by Delaware and Georgia. Williamson, of North Carolina, advocated the counting of three-fifths of the slaves, but at first, this motion was defeated. Doubtless, this proposition was brought forward by Williamson because, four years before. Congress had proposed that in determining the amount to be paid by the respective states three-fifths of the slaves should be counted.

After this subject of the proper basis of representation had been for some time discussed by the convention, with little apparent prospect of reaching a conclusion, Gouvemeur Morris moved to add to the clause empowering the legislature to vary the representation according to the principle of wealth and numbers a "proviso that taxation shall be in proportion to Representation." This motion was made when the propriety of limiting the political influence of the west and the question as to whether slaves should be counted were both undetermined. It was, in fact, a two-edged sword, but it was necessary to grasp it by the blade. If the boisterous west were to be given representation in accordance with numbers, the new states, though relatively poor, must pay taxes according to population; if the southern men demanded that their slaves be counted for representation on the ground that they created wealth, they must agree to pay taxes accordingly. South Carolina readily agreed to this as just, but asked, nevertheless, that all her slaves be enumerated. From the logic of the situation, in fact, there could not be many objections to Morris's proposition; but a practical difficulty was brought out by Mason, who pointed out that the new government might be embarrassed by the application of that principle; for Congress might be driven to the plan of requisitions, inasmuch as customs dues and like levies could not be thus proportioned. The resolution was therefore altered and made to apply to direct taxation only. In this form the principle was adopted; direct taxes and representation alike were to be proportioned to the population.

This decision, however, did not entirely end the trouble. Davie, of North Carolina, said it was high time "to speak out"; North Carolina, he said, would never enter the Union on any terms that did not provide for counting at least three-fifths of the slaves. "If the Eastern States meant therefore to exclude them altogether the business was at an end." It was not the extreme southern states alone that demanded some recognition of the black population; even Randolph, lamenting "that such a species of property existed," urged strongly "that express security ought to be provided for including slaves in the ratio of Representation." The three-fifths proposition, supported by the fact that the old Congress had already hit upon the fraction as indicative of a comparative productive power, seemed a reasonable compromise and was at length adopted.

Of course, the plan was not acceptable to all, but some conclusion had to be reached, and men had to accept unwelcome results. Wilson, for example, though apparently voting for this compromise, saw too clearly and too simply to avoid its difficulties; his clear head was perplexed with the same questions that were to bother men in the coming generations. "Are they admitted as Citizens?" he asked in the course of the debate; "then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation?" He admitted that such difficulties "must be overruled by the necessity of compromise."

The diversity of interest between the northern and the southern states was not shown very plainly in the early debates, especially during the time when the states south of the Potomac were cooperating with Massachusetts and Pennsylvania to establish a national Constitution based on popular representation. At a later time, however, there arose sharp differences of opinion, and the sectional opposition stood out with dangerous distinctness. Butler went so far as to declare that he considered the interests of the southern and eastern states "to be as different as the interests of Russia and Turkey." This diversity showed itself chiefly in connection with two questions: should Congress regulate commerce freely and pass a navigation act if it chose? should the states be allowed to import slaves?

The history of a generation had plainly taught that some general regulation of commerce was a necessity. In the days before the war Americans and Englishmen had much dispute as to the right of Parliament to regulate trade, but the old Congress itself had declared its willingness, "from the necessity of the case," if not from law, to accept such regulatory acts if passed in good faith by the mother-country. The disorder and confusion of the years after the announcement of independence ought to have brought home to all the folly of relying, for a proper management of commercial relations, on the caprice of the individual states. Every man that had learned anything from experience had learned this lesson pretty thoroughly, and the convention did not long hesitate to bestow on Congress the general right to regulate commerce. But the old jealousies were not all cleared away; some of them, indeed, was very much alive, and the southern delegates were fearful that the unrestricted right to pass navigation laws would be used to their detriment and to the advantage of the commercial states of the east. "The Southern States," said Mason, "are the minority in both Houses. Is it to be expected that they will deliver themselves bound hand and foot to the Eastern States, and enable them to exclaim, in the words of Cromwell on a certain occasion — the lord hath delivered them into our hands'?" As for the eastern states, on the other hand, Gorham asserted that they had no motive for union but a commercial one.

Concerning the slave trade, too, there were many differences of opinion. The New England men were divided, the leading men from the middle states, including Virginia, Maryland, and Delaware, were outspoken in their opposition to the traffic and unsparing in their condemnation of slavery. The southern states insisted on their right to import slaves. Charles Pinckney declared that if the southern states were left alone they would probably of themselves stop importation, but the attempt to take away the right would produce serious objections to the Constitution. With the same breath, however, he declared that if slavery were wrong it was justified by the example of all the world: "In all ages, one-half of mankind have been slaves." C.C. Pinckney asserted that South Carolina and Georgia could not do without slaves, and if Congress were given the power to prohibit the slave trade, such action would be an exclusion of South Carolina from the Union. Williamson, of North Carolina, expressed himself in the same way; and Rutledge asserted that the three southern states would "never be such fools as to give up so important an interest."

With deep feeling, with the force of sincere conviction, the men from Maryland and Virginia answered the temporizing argument from the states of the farther south. Luther Martin, with a breadth of national feeling one might not have expected, said that "slaves weakened one part of the Union which the other parts were bound to protect," and that to have a clause in the Constitution permitting the importation of slaves was inconsistent with the principles of the Revolution and dishonorable to the American character. Madison thought it wrong to admit into the Constitution "the idea that there could be property in men."

The strongest denunciation of the system came from George Mason, of Virginia. He called on the convention to give the general government the right to prevent the increase of slavery. He reminded his hearers that the west was already calling for slaves to develop the new lands of the interior, and would fill that country with black men if they could be brought through South Carolina and Georgia. "Slavery discourages arts and manufactures," he declared, with great earnestness. "The poor despise labor when performed by slaves. . . . They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes and effects, providence punishes national sins, by national calamities." He was sorry that the merchants of the northeast "had from a lust of gain embarked in this nefarious traffic." Strong as these words were, spoken with sincerity by a man who was himself a slave-holder, a proprietor of one of the stately domains south of the Potomac, where white masters with large retinues of blacks lived in a sort of rude magnificence, his warning was prophetic but not convincing. The men of the far south would not listen, and, it may be added, some of the New Englanders were not deeply interested in the proposal to prohibit what Mason had called the "nefarious traffic."

The difficulty of the problem was great: if Congress were given the power to exclude slaves, at least two states would refuse to accept the Constitution; on the other hand, as Randolph pointed out if Congress were forbidden to prohibit the importation, the clause "would revolt the Quakers, the Methodists, and many others" in the northern states. With a hope of finding some means of escape, a committee was appointed, and to it was referred both the problem as to whether the slave trade should be prohibited and as to what limitation, if any, should be placed on the power of Congress to pass navigation acts. The result was a compromise that was embodied in the Constitution. Congress was to be allowed to pass a navigation act under its general power to regulate commerce, but the importation of such "persons" as the several states then existing should think fit to admit was not to be prohibited before the year 1808. Congress might, however, levy a tax or duty not exceeding $10 "for each person."

Thus, for the time being, the question was settled; but Mason's eloquent words were to prove prophetic; the young west, south of the Ohio, was to be burdened by slaves. And, though the rivalry between the agricultural south and the commercial east might for a moment be obscured by compromise, it was not easy to reconcile interests that were in apparent, if not in real, economic conflict. This rivalry had already shown itself in the problems of the Confederation; it was to serve as one chief reason for party antagonism in the next two decades, to be the source of serious opposition to the general government forty years after the convention had finished its work, to furnish the fuel for flames of sectional hatred long after every member of the convention was in his grave, and to underlie the political strife and recrimination that ended in civil war. This rivalry or this misunderstanding should be borne in mind in interpreting the history of the first hundred years under the new government.

Of all the problems of the convention not one caused greater perplexity than determining the powers of the president and the method of his election. This fact should not surprise us if we stop to consider how difficult the task of providing for an executive head of a nation, who should have dignity and authority and yet be not overpowerful; who should work harmoniously with the other branches of government, and yet not be the creature of the legislature or of either chamber; who should be so hemmed about by republican restrictions as not to affright the populace when the veil was lifted from the work of their delegates.

The convention was bent on carrying into effect the principle that the three departments of government should be separate and independent. With more or less accuracy that principle had already found its formulation in state constitutions, but to apply it to the national government was, nevertheless, not easy, chiefly, perhaps, because there was difficulty in discovering a suitable method of choosing the president. In fact, the convention had on its hands a delicate task; it must hit on a method of adjusting the departments so nicely and yet with such strength that each could maintain itself for years to come, while the government performed its functions smoothly, safely, and efficiently. The result was, as we know, the establishment of what publicists now call the presidential form of government, one of the two great and successful forms of popular national government now in use in the civilized world. We need not wonder, then, that the problem was perplexing almost beyond compare, and that the delegates debated long and passed many resolutions, only to rescind them again.

On twenty-one different days the general subject of executive office was under discussion; and on the method of election alone over thirty distinct votes were taken. If the executive were to be chosen by Congress, or by either branch, there was a likelihood that he would be yielding and dependent in his relations with those to whom he owed his position. To trust the main body of the people seemed impossible. How could the common man judge who was fit to be president of the United States? To give the right to the legislatures of the states had its most obvious dangers. Moreover, any plan which took into consideration the size of the respective states gave the large states an advantage over their smaller neighbors. Here, in other words, came up the old antagonism; here in the effort to decide the most difficult and delicate of questions, and to adjust a complex piece of political mechanism, the delegates were harassed by an imaginary antithesis between big and little states and by temporary or trivial considerations.

After long consultation, a committee was appointed, which reported (September 4) in favor of having the president chosen by electors, a plan that had been several times discussed. Each state was to appoint, in such manner as its legislature might direct, a number of electors equal to the whole number of its senators and representatives in Congress. Each elector was to vote for two persons, the one receiving the highest number, if a majority, to be president, and the one receiving the next highest to be vice president. This method gave an evident advantage to the large states, but the report of the committee also provided that, in case the electors should not by their votes give a majority to any one person, the choice of president from the five highest on the list should devolve upon the Senate; likewise the Senate should choose one of two receiving a majority and an equal number of votes. By this plan it was supposed the election, in the first instance, would devolve on persons qualified to have opinions and express them, and yet would not magnify the authority of any official body in the states or of either house of Congress. In this way also the power of the large states was in a measure recognized, for the larger the state the greater the number of electors. The plan, moreover, was not without its advantages for the small states, since the alternative choice might devolve on the Senate, where the states were equally represented; and the delegates seemed actually to have believed that the electors in many if not in the majority of cases, would not be in sufficient agreement to give any person a majority.

This power of ultimate choice would, however, greatly increase the influence of the Senate, which had enough without it, and this was a real objection. Wilson, not generally fearful of authority, pointed to the Senate's power over appointments and the making of treaties and its right to try impeachments. "According to the plan as it now stands," he said, "the President will not be the man of the people as he ought to be, but the minion of the Senate. He cannot even appoint a tide waiter without the Senate." Apparently influenced by such considerations as these, the right to select the president, in case the electors failed to choose, was transferred from the Senate to the House of Representatives, with the proviso that in the House each state should have one vote. Of the ignorance of the fathers concerning political parties, this naive compromise with all its complexities stands as a golden example. It did not occur to them that in a few years, men from New Hampshire to Georgia would be deciding on candidates for party purposes, that the party reins would reach into the remotest comer of the land, and that before long these electors would be but men of straw, mere pieces of machinery, to register the will of the people or their political masters.

As the convention neared the end of its labors its perplexities did not diminish. The summer had gone and the early days of September passed, and yet, after four months of toil and of remarkable patience, the delegates found themselves dissatisfied. No one seemed wholly content, and those who labored most earnestly could only say that the instrument before them was the result of their best efforts and ought to be adopted by the people. They might all have said, with Touchstone, "An ill-favored thing, Sir, but mine own." Franklin urged unanimity of action, even if the Constitution did not suit everybody in all its parts. "The older I grow," he said, "the more apt I am to doubt my own judgment," and he pleasantly told of "a certain french lady" — perhaps one of the many who had listened to his own wisdom in his conquering days in France — who in a dispute with her sister said, "I don't know how it happens, Sister but I meet with nobody but myself, that is always in the right — // n'y a que moi qui a ioujovirs raison,"

Franklin's pleasantry was of possible service, but it did not win all the discontented. The new Constitution must go forth to be criticized by some who had helped to make it. Most of the delegates, it is true, were ready to sign the finished instrument and advocate adoption, although not entirely satisfied. Even Hamilton, who had not taken an important part and who openly expressed his dislike of the system, was ready to acquiesce, declaring that it was impossible "to deliberate between anarchy and Convulsion on one side and the chance of good" on the other.

But some of the delegates were not so reasonable. Martin, who had stayed till near the end, went home to attack the Constitution with his customary vehemence. Mason remained to the end, but, vigorously protesting against the powers of Congress by a mere majority to pass navigation acts, a power which "would enable a few rich merchants" of the northern cities to monopolize the staples of the southern states, refused to accept the Constitution or to advocate its adoption. Randolph and Gerry also protested and declined to sign. Altogether seventy-three delegates had been appointed to the convention. Of these, fifty-five were at one time or another in attendance; but only thirty-nine signed the finished instrument. Of the twelve regular members, not counting Martin, who were not in attendance at the end and did not sign, seven are known to have approved of the Constitution and three are known to have disapproved.

For the purpose of sending out the Constitution supported by apparent unanimity, and also if possible to win the hesitant, Franklin proposed as a form of ratification by the convention, "Done in Convention by the unanimous consent of the States present." This equivocal expression was adopted and the work of the convention finished on September 17. Incomplete and inadequate as the men believed it to be, there was hope in its lines, and the best among them could honestly ask the people to establish the work of their hands.

The document to which the framers attached their names with mingled hopes and misgivings that September day in the old state-house in Philadelphia has come to be looked on as one of the great documents of the world's history; it is now the fundamental law of the oldest republic on earth; the government which it established has outlived dynasties and seen ancient governments totter; it has stood without destruction while England was abandoning her old-time aristocratic government, while France was making and remaking a series of constitutions, while Italy was unified and the German people were founding a national organization, while the pope himself was deprived of his ancient temporal authority, while Spain, who at one time claimed nearly the whole of the New World, was losing her dominions and shrinking back into the old limits of the Iberian peninsula.

The Constitution has sometimes been spoken of as if it were in all respects the creature of the men at Philadelphia, or as if it were, as Mr. Gladstone once said, "the most wonderful work ever struck off at a given time by the brain and purpose of man." That in one sense the Constitution was made in four months' time is true; in four months a series of articles and sections were pieced together. In another sense it is not true; time made the American Constitution as it has made others of any moment. An artificial constitution, not the product of a people's life, can never have vitality, strength, or usefulness. The delegates at Philadelphia did not sit brooding over the chaos of the Confederation to bring forth by their fiat a new government. The idea that they created institutions out of nothingness loses sight of the manner and the conditions of their work. Neither is it true that they copied European institutions, borrowing scraps here and there to patch up a system suited to their tastes. Some of them were students of law, familiar with Vattel, Locke, Montesquieu, and Blackstone. Some of them had read history for a purpose and could cite the failures of past confederacies or draw illustrations from the experiences of European states. But there is no evidence of borrowing or of slavish copying; for, while they were students and readers of history and knew that their own little experience was not the sum of knowledge, they were practical political workers, had for years studied the problems of forming governments, and had been acquainted with the great process of making state constitutions. The men of the generation that declared independence and formed new states were steeped in political theory as their great-grandfathers had been in theology, and for years they were engaged in the difficult process of adapting old institutions to new ideas, framing governments and laws that suited the economic, social, and moral conditions which the New World had produced.

We might, therefore, expect to find from these experienced craftsmen, not a document hurriedly patched together, nor one taken in part from distant ages or strange climes, but an American document in its entirety new, but made up of parts that had found their places in the state organizations. If we look, then, for the origin of the Constitution, we find much of it in the failures of the Confederation, in the tribulations of eleven confused years when the nation was without a proper government and when distress and disorder and incompetence were showing the way to success; and much of it, too, in the state constitutions which had been drawn up by men familiar with colonial governments and administration. This old-fashioned colonial practice was not thrown aside when independence was declared, any more than a man throws aside his body or his brains when he emerges from boyhood to manhood. The work of constitution-making for the states was a work of adaptation, of enlargement, of emphasis, not of creation; it registered growth.

And thus it may be said that colonial history made the Constitution. Even in the division of authority between the states and the national government, we see a readjustment of the old practical relationship between colonies and mother country, a readjustment which was based in part on the imperfections of the old system but carried out the teachings of the Revolution. Even the essentially American notion, the notion that government is the agent of the people and must not transcend the law set by the people, was an outgrowth of the free society of a new world, had found its expression in the theory of the Revolution, and had arisen in a country in which from time immemorial there had been no government possessed of all political power. And this only means, of course, that the Constitution of the United States took its root in the history of England; it was not borrowed by conscious imitation from England, it was a product of the forces of English history; but it was shaped by American necessities, was framed by men who could learn lessons and use the material the tide of history washed to their feet.