Story of Our Constitution - E. M. Tappan

The Constitution is Completed

This "purely federal" plan had been prepared by the delegates from Connecticut, New York, New Jersey, and Delaware. All four opposed a strong national government, but not for the same reason. Connecticut and New York did not wish to have their State decrees interfered with by any "supreme government," and New Jersey and Delaware, two small States, had no idea of agreeing to any government that would give the large States more representatives than the small. They wanted a Congress of one house, and that house made up of the same numbers from each State, no matter what its size. They were willing to give Congress a few more powers, but no real power. The old question was brought up, whether they had any right to form a new constitution, when they had been sent there by Congress to revise the old one. This had been gone over again and again, and it is little wonder that one member declared, maybe just a little scornfully, "Give New Jersey an equal vote, and she will dismiss her scruples." The New Jersey plan seemed at first reading to give Congress all necessary power. It did not cut loose from the Articles, but proposed merely to modify them to suit the changed circumstances. Congress should have the right to impose and collect taxes and make laws for commerce. It could oblige the States to be obedient to its orders. The weak point was that Congress was to consist of one house, representing not persons, but States; and all States, whether rich or poor, with many citizens or few, were to have the same number of representatives. Power can come only from the people, not from the States. The New Jersey plan would throw the country into the same old troubles. Congress would have powers, but no power.

Constituional convention


Madison now took the floor, and showed how one State after another had broken the Articles of Confederation. Georgia had made treaties with the Creek Indians; Massachusetts had even then a body of troops—a standing army—in her pay. Several States had issued paper money with no coin behind it. New Jersey herself had not been too obedient to refuse to obey a requisition of Congress. It would be easy to crush a small State, he said, and force her into obedience, but what about the large States? Would it be easy for such a Congress to oblige them to obey? Again, if no plan could be agreed upon, either each State would be independent of the others, or they would unite in several confederacies. Who would then protect the small States from their stronger neighbors? New States which would later come in from the West, would have at first few inhabitants; but supposing all States had the same number of representatives, a minority might easily become the rulers of the whole land.

The convention was near coming to an abrupt end. The speakers became more and more angry. They began to declare that they "would never consent," that there were foreign powers ready to take them by the hand. "Gentlemen, I do not trust you," shouted wrathfully one of the Delaware members.

Everybody made a speech, and no one's speech influenced any one else. It began to look as if the convention would surely dissolve, and each man would put on his hat and start for home. Would a compromise be possible? Two of the Connecticut delegates thought it might. They proposed that the lower house should be national and the upper house be federal; that is, that the House of Representatives should represent the people, and the Senate the States. Franklin always enjoyed a simple, everyday illustration, and now he said, "When a broad table is to be made, and the edges of the planks do not fit, the artist takes a little from both, and makes a good joint."

No one was very enthusiastic about the compromise, but from sheer helplessness they at length put it to vote whether each State should be allowed to send one representative to the upper house. One State after another voted, one in favor, one against; and so it went on until the vote of five States had been recorded for the motion and five against it. Ten States were represented, and all but one, Georgia, had voted. Mr. Houston, of Georgia, voted no. Then everybody's gaze turned upon his colleague, a young man named Abraham Baldwin. He was a Yale graduate, a Connecticut man, but now a lawyer of Savannah. His vote would decide the fate of the motion. He did not agree with it, but if he said no, the compromise would fail. Probably the convention would dissolve; and it must be kept together. He voted yes. It was a tie, and the motion was lost. If New Hampshire and Rhode Island had been present, they would doubtless have voted for a compromise; therefore it was not given up, but a committee was appointed to draw up a form of compromise.

Three days they had for this piece of work, for the delegates took a recess of three days, so they could celebrate the Fourth of July if they wished. It cannot have been a very festive celebration for Washington, if we may judge from his diary, for he gave a sitting to an artist, went to see some "anatomical figures," attended a meeting of an agricultural society, heard a law student deliver an oration on the "Anniversary of Independence," and dined with the Cincinnati.

The committee on the compromise had rather a stormy time, but they finally came to an agreement to bring in a report in its favor. After all their struggles, they must have felt discouraged when they came to present their report to the convention, for a whole crop of new arguments had come to life, and eleven full days of talk passed before that compromise really came to a vote and was passed. Even then, it was somewhat different in form from the one originally presented. It now stood that the Senate should consist of two members from every State, elected by the legislature of the State; and that the House of Representatives should consist of one member for every 30,000 of the population. "In the course of one hundred and fifty years, one for every 30,000 will make a House rather unmanageably large," some one remarked. One or two disrespectfully smiled at the idea that any system of government which they could work out would last so long; but it has already lasted nearly that length of time. Our present House consists of one member for every 211,877 persons. If the original ratio of one for every 30,000 had been continued, our Capitol would have to be enlarged, for seats would have to be provided for about 3,700 members.

This is the lengthy story of the making of one of the three great compromises of the Constitution. It had taken a full month's discussion to come to a settlement; but this settlement was a real stroke of policy. "Give New Jersey an equal vote, and she will dismiss her scruples," turned out to be an excellent prophecy. New Jersey and the other small States were made sure of their equal vote in the Senate, and now they were willing that Congress should have all the power that any one might choose to give it. The second compromise was also on the question of representation. Should slaves be counted as persons or as property? The North declared that in the South they were considered property, and that they should therefore be taxed as property and not counted as persons. The South admitted that they were property, but declared that they were also persons. Counting them as property would increase the taxes of the Southern States; counting them as persons would increase the number of Southern representatives in Congress.

Another question was closely connected with this: How shall the States be taxed? There was a long discussion, and at length it was agreed that it should be according to population. This did not help so very much, for it brought them back to the first question, namely, whether slaves should be counted as persons in computing the State tax. The North said yes; the South said no. Should they be counted in deciding upon the number of representatives for a State? The North said no; the South said yes. This began to seem like another deadlock, but each side yielded. The North agreed that slaves should be counted in settling the number of representatives and the South agreed that they should be counted in computing the State tax. Both agreed that not all the slaves, but only three-fifths of their number should be counted.

According to this arrangement, five men in Massachusetts counted as five in apportioning representation in the House of Representatives. If those five men moved to South Carolina and each bought a slave, they would count as eight. In South Carolina it was not long before there were more slaves than free men, and although the slaves were not "represented" in any way, they were counted in the representation for the white men. This was why the Southern States had so much power in Congress. The war had been fought to uphold the principle that all citizens should count equally in representation, and this compromise was directly against it. Nevertheless, if it had not been agreed to, the Constitution would probably not have been formed; anarchy would have prevailed; and it is quite possible that the country would have been divided and that perhaps part or all of it would have fallen into the hands of some foreign power. Compromises are never absolutely fair to either side, but they sometimes seem necessary in order to avoid worse things.

The third compromise was on the slave trade. New England was determined that Congress should have the right to regulate commerce. The South was equally determined that it should not; for the Southern States were afraid that New England would get control of the ocean freight, and that the South would then be at her mercy in sending rice, tobacco, and indigo to Europe. "Commerce" included the slave trade. Nearly all the Southern States had forbidden it, but in the rice swamps of Georgia and South Carolina slaves became rapidly exhausted. To carry on their most profitable business, these States demanded that the importation of negroes should not be interfered with. One of the delegates from South Carolina declared that a refusal to make such allowance would be regarded as shutting South Carolina out of the Union. Another member retorted that if the two States intended, as they had hinted, to give up in a short time this importation of slaves, they would not be so unwilling to have it prohibited; and one member from South Carolina declared boldly that the Carolinas and Georgia would never be such fools as to give up the right to import. The result was the third compromise. To please New England, Congress was to have absolute control over commerce. To please the South, the slave trade was not to be prohibited before 1808—for there was a general feeling that before that date it would be given up.

These were the three compromises that made the Union possible. The first conciliated the smaller States; the second gained the support of the slave States; the third put commerce into the hands of Congress and assured free trade among the States.

The old question how the executive should be elected had been taken up more than once. It was now suggested that the State legislatures should choose electors, who should go to the capital city and vote; but such a journey was not lightly to be undertaken. Some one even hinted that choosing electors by lot among the congressmen might be practicable. Some one else thought that one man might be named by each State, and from these thirteen either Congress or a board of electors might choose an executive. A month later, still other plans were brought forward. At length the present plan was adopted.

Concerning the judiciary, there was little disagreement. No one doubted that it must have courts, and that the decisions of its courts were not to be questioned. Its noblest task is that of interpreting the Constitution. It not only interprets what has been written; but should a new law be passed, and a case involving this law be brought before the Supreme Court, then, if this Court should declare the law contrary to the Constitution, it is null and void; the highest authority in the land has spoken.

There was much yet to do. There was more than once a disagreement with emphatic opinions expressed on both sides; but the foundations had been laid, and the rest followed. Four months after the day in May when the convention first met the last session was held. A draft of the Constitution was signed by all but three of those present.

The chair in which Washington sat at the meetings chanced to have painted on its back a half-sun, rising or setting. Franklin said, "While I have been sitting here, I have often looked at that without being able to tell whether it was rising or setting; but now at length I have the happiness to know that it is a rising and not a setting sun."

Save for a ten-days' adjournment the convention had been in session five, six, even seven hours a day through the four months of summer in a torrid city. The work was now completed. After dining at the City Tavern, the delegates said a cordial farewell to one another, and made ready to start for their homes. Washington wrote in his diary that he returned to his lodgings "and retired to meditate on the momentous work which had been executed." "I wish the Constitution had been more nearly perfect," he wrote to Patrick Henry, "but I sincerely believe it is the best that could be obtained at this time."