An Economic Interpretation of the Constitution of the United States/Chapter VII

From Wikisource
Jump to: navigation, search

Chapter VII
The Political Doctrines of the Members of the Convention[edit]

Having examined the economic implications of the constitution in the light of the greatest of all commentaries, The Federalist, it is now interesting to inquire whether the members of the Convention at large entertained substantially identical views as to the political science of the system. There are several difficulties in the way of such an investigation. Not all of the delegates, indeed not all of the most influential, were speech makers or writers or philosophers. As intensely practical men they were concerned with tangible results, not with the manner in which political scientists might view the details of their operations. There is, accordingly, a considerable danger of attempting too much in making generalizations, and to obviate this as far as possible, the method of taking the members in alphabetical order is adopted, and the evidence of the views entertained by each is fully documented.[1]

The leaders in politics and political philosophy in the eighteenth century were not far removed from that frank recognition of class rights which characterized English society, and they were not under the necessity of obscuring - at least to the same extent as modern partisan writers - the essential economic antagonisms featuring in law and constitution making. Their clarity of thought was greatly facilitated by the disfranchisement of the property-less, which made it unnecessary for political writers to address themselves to the proletariat and to explain dominant group interests in such a manner as to make them appear in the garb of "public policy."

There does not appear, of course, in the writings of American political scientists in the eighteenth century, that sharp recognition of class rights which characterizes the feudal legists, because within the propertied interests politically represented in the government, there were divisions which had to be glossed over; and there were also mutterings of unrest on the part of the disfranchised which later broke out in the storm that swept away the property qualifications on voters and introduced political equalitarianism. Under these circumstances the supporters of the Constitution had to be somewhat circumspect in the expression of their views; but, happily for science, the proceedings at Philadelphia during the drafting of the Constitution were secret, and they were able to discuss with utmost frankness the actual politico-economic results which they desired to reach. Fortunately, also, fragmentary reports of these proceedings have come down to us, and have been put in a definitive form by Professor Farrand.

Abraham Baldwin, of Georgia, did not indulge in any lengthy disquisitions on government in the Convention, and his literary remains are apparently very meagre. However, his view that the Senate of the United States ought to, represent property came out in the debate on June 29, over a motion by Ellsworth to the effect that the "rule of suffrage in the second branch be the same as that established by the Articles of Confederation." Baldwin immediately opposed the proposition, saying, "He thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their constituents, and to the principles on which the senate of Massachusetts was constituted."[2] At the time the senate of that commonwealth rested upon special freehold and personalty qualifications,[3] and the members were apportioned among the several districts on the basis of the amount of taxes paid by each. It is thus apparent that Baldwin wished the Senate of the new government to be based frankly upon property.

Gunning Bedford, of Delaware, did not participate extensively in the debates of the Convention, but it seems from the character of the few remarks that he made that he favored a more democratic form than was finally adopted, although he signed the Constitution. This inference is drawn from a brief notice of his objection to the establishment of a council of revision composed of the executive and a certain number of the judiciary to exercise a sort of censorship over the acts of Congress. Madison records as follows: "Mr. Bedford was opposed to every check on the Legislative, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the People were the best judges of what was for their interest, and ought to be under no external control whatever. The two branches would produce a sufficient control within the Legislature itself."[4]

Jacob Broom was among those who wished to "lessen the dependence of the general government on the people," to use Jefferson's phrase, by lengthening the terms of public officers. He seconded Read's motion to increase the term of Senators to nine years;[5] he opposed the election of the executive by popular vote, and supported Luther Martin's resolution in favor of election by electors appointed by the legislatures of the several states;[6] he wished to give life tenure to the executive, that is, during good behavior,[7] and he favored the suggestion that Congress should be given a negative over state legislatures.[8] Broom seldom spoke in the Convention, but there is no doubt that he believed in a restricted and well "balanced" democracy.

Pierce Butler, of South Carolina, on more than one occasion urged the desirability of making property at least one of the elements in the distribution of representation. On June 6, when Charles Pinckney moved that the lower house of the national legislature should be chosen by the state legislatures and not by the people, Butler said: "I am against determining the mode of election until the ratio of representation is fixed - if that proceeds on a principle favorable to wealth as well as numbers of free inhabitants, I am content to unite with Delaware (Mr. Read) in abolishing the state legislatures and becoming one nation instead of a confederation of republics."[9] In connection with a discussion of the Senate, "he urged that the second branch ought to represent the states according to their property."[10] Later in the sessions of the Convention he again "warmly urged the justice and necessity of regarding wealth in the apportionment of representation."[11] He was also particularly solicitous about slave property, and he declared that "the security which the southern states want is that their Negroes may not be taken from them."[12]

Daniel Carroll favored the popular election of the executive, but he advocated a three-fourths vote in Congress to overcome the executive veto. Speaking on this point, "He remarked that as a majority was now to be the quorum, seventeen in the larger and eight in the smaller house he might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws."[13] Carroll did not indulge in any philosophic reflections in the Convention so that his "political science," if he had worked out any definite system, is not apparent in the records.

George Clymer entertained the notions of government which were common to the Federalists of his time. He held that "a representative of the people is appointed to think for and not with his constituents";[14] and invariably, during the course of his career, he "showed a total disregard to the opinions of his constituents when opposed to the matured decisions of his own mind." It was on these principles that he "warmly opposed the proposition introducing a clause in the Constitution which conferred upon the people the unalienable right of instructing their representatives."[15]

W.R. Davie, although he is reputed to have been an accomplished orator and profound student, does not figure extensively in Madison's meagre records. At no point does he expound any philosophy of government. His views were always practical. On the proposition to count slaves in apportioning representation, he threw down the gauntlet to the Convention, and declared that if the rate was not at least three-fifths, North Carolina would not federate.[16] As to the basis of government Davie "seemed to think that wealth or property ought to be represented in the second branch; and numbers in the first branch."[17]

Davie fully understood the significance of the obligation of contract clause which was designed as a check on the propensities of popular legislatures to assault private rights in property, particularly personalty. Speaking in the convention of North Carolina on this clause, he said: "That section is the best in the Constitution. It is founded on the strongest principles of justice. It is a section, in short, which I thought would have endeared the Constitution to this country."[18] Davie undoubtedly understood and approved the doctrines of balanced classes in the government, as expounded in Adams' Defence of American Constitutions.[19]

At no time does Davie appear to have courted popular favor in his native state, for a writer speaking of his candidacy for the legislature in 1798 says: "The true Whigs,' as they styled themselves, dined together under the oaks and toasted Mr. Jefferson. The other party, who were called 'aristocrats,' ate and drank in the house on entirely different principles. General Davie dined in the house with the 'aristocrats.' The 'true Whigs' took offence at this and resolved to oppose his selection, and it was only with much address that they were kept quiet. ...If any person had had the impudence to dispute the election, General Davie would certainly not have been returned. The rabble, which in all places is the majority, would have voted against him."[20]

John Dickinson, of Delaware, frankly joined that minority which was outspoken in its belief in a monarchy - an action that comported with his refusal to sign the Declaration of Independence and his reluctance to embark upon the stormy sea of Revolution. At the very opening of the Convention, on June 2, he expressed his preference for a regal government, although he admitted that the existing state of affairs would not permit its establishment in America. Madison -records him as saying: "A limited Monarchy he considered as one of the best Governments in the world. It was not certain that the same blessings were derivable from any, other form. It was certain that equal blessings had never yet been derived from any of the republican form. A limited monarchy, however, was out of the question."[21]

Dickinson was also among the members of the Convention who wished to establish a property qualification for voters because he thought no other foundation for government would be secure. In the debate on this subject on August 7, according to Madison's notes: "Mr. Dickinson had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence agst. the dangerous influence of those multitudes without property & without principle, with which our Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion chemirical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it."[22]

According to King's notes: "Dickinson - It is said yr. restraining by ye Constitution the rights of Election to Freeholders, is a step towards aristocracy - is this true, No. - we are safe by trusting the owners of the soil - the Owners of the Country - it will not be unpopular - because the Freeholders are the most numerous at this Time -The Danger to Free Governments has not been from Freeholders, but those who are not Freeholders - there is no Danger - because our Laws favor the Division of property -The Freehold will be parcelled among all the worthy men in the State - The Merchants & Mechanicks are safe - They may become Freeholders besides they are represented in ye State Legislatures, which elect the Senate of the U.S.[23]

No member of the Convention distrusted anything savoring of "levelling democracy" more than, Oliver Ellsworth Later as Chief Justice he denounced from the bench Jefferson and the French party as "the apostles of anarchy bloodshed, and atheism."[24] In the Convention, he opposed the popular election of the President[25] and favored associating the judges with the executive in the exercise of a veto power over acts of Congress.[26] He believed in the restriction of the suffrage to those who paid taxes,[27] He was a warm advocate of judicial control, in general, and thoroughly understood the political significance of the system. ref>Beard, The Supreme Court and the Constitution, pp. 71–72.</ref>

Thomas Fitzsimons, the wealthy merchant and stockbroker from Pennsylvania, was, after his kind, not a loquacious man, but rather a man of action - a practical man; and the records of the Convention contain no lengthy speech by him. When Gouverneur Morris, on August 7, proposed to restrain the right to vote to freeholders, Fitzsimons seconded the motion, apparently without saying anything on the point.[28] While he thus sympathized with the movement to set the Constitution frankly on a property basis, Fitzsimons was naturally more interested in such matters as protection to manufactures and harbor improvements.[29]

Benjamin Franklin, who at the time of the Convention was so advanced in years as to be of little real weight in the formation of the Constitution, seems to have entertained a more hopeful view of democracy than any other member of that famous group. He favored a single-chambered legislature,[30] opposed an absolute veto in the executive,[31] and resisted the attempt to place property qualifications on the suffrage.[32] He signed the Constitution when it was finished, but he was accounted by his contemporaries among the doubters, and was put forward by the opponents of ratification in Pennsylvania as a candidate for the state convention, but was defeated.[33]

Elbridge Gerry, of Massachusetts, participated extensively in the debates of the Convention, but his general view of government was doubtless stated in his speech on May 31, when he expressed himself as not liking the election of members of the lower house by popular vote. He said on this point: "The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots. In Massts. it has been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Government. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Massts. for the reduction of salaries and the attack made on that of the Govr. though secured by the spirit of the Constitution itself. He had, he said, been too republican heretofore: he was still, however, republican, but had been taught by experience the danger of the levelling spirit."[34]

When the proposition that Senators should be elected by the state legislatures was up for consideration, "Mr. Gerry insisted that the commercial and monied interest wd. be more secure in hands of the State Legislatures, than of the people at large. The former have more sense of character and will be restrained by that from injustice. The people are for paper money when the Legislatures are agst. it. In Massts. the County Conventions had declared a wish for a depreciating paper that wd. sink itself. Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There wd. therefore be so far a better chance of refinement in the choice."[35]

Nicholas Gilman was by temper and interest a man of affairs, more concerned with the stability of public securities and the development of western land schemes than with political theorizing. From Madison's record he does not appear to have said anything in the Convention.

Nathaniel Gorham was opposed to property qualifications on the suffrage in the federal Constitution and the association of the judiciary with the executive in the exercise of the veto power.[36] Speaking on the latter point, however, he said, "All agree that a check on the legislature is necessary. But there are two objections against admitting the judges to share in it which no observations on the other side seem to obviate. The 1st is that the judges ought to carry into the exposition of the laws no prepossessions with regard to them; 2d that as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and instead of enabling him to defend himself would enable the judges to sacrifice him."

Alexander Hamilton had a profound admiration for the British constitution. "The House of Lords," he said in the Convention, "is a noble institution. Having nothing to hope for by a change and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier against every pernicious innovation whether attempted on the part of the Crown or of the Commons."[37] Doubtless his maturely considered system of government was summed up in the following words: "All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government. Can a democratic assembly who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy. ... It is admitted that you cannot have a good executive upon a democratic plan."[38] In consonance with these principles Hamilton outlined his scheme of government which included an assembly to consist of persons elected for three years by popular vote, a senate chosen for life or during good behavior by electors chosen by the voters, and a president also elected for life or during good behavior by electors chosen by the voters. The Convention failed to adopt his programme, and he entertained a rather uncertain view of the Constitution as it was finally drafted, doubting its stability and permanency.

William Houstoun, of Georgia, seems to have spoken only once or twice; but he gave an indication of his political science in a remark which he made to the effect that the Georgia constitution "was a very bad one, and he hoped it would be revised and amended."[39] The constitution to which he alludes was the radical instrument made in 1777, which provided for a legislature with a single chamber and an unusually wide extension of the suffrage.[40]

Jared Ingersoll, in spite of his great abilities as a student and lawyer, seems to have taken no part at all in the debates of the Convention. Such at least is the view to which Madison's records lead. Something is known, however, of the political principles which he entertained. Though he became intimately associated with President Reed on his migration to Philadelphia in 1778, he never accepted the extreme democratic principles embodied in the constitution of that state in 1776.[41] His biographer, after making an exception of Ingersoll's services in the Convention, says: "I am not aware that he held or sought a position in any popular or representative body whatever. He was what is called conservative in politics; that is to say, he was not by constitutional temper a rebuilder or reconstructor of anything that had been once reasonably well built; nor was his favorite order of political architecture, the democratic. After the great subversion in 1801 he was found as rarely as anybody in Pennsylvania on the side of the majority. He was known to be inclined to the contrary, so far that with or without his consent he was selected in that state, in the year 1812, as the opposition or anti-Madisonian candidate for the office of Vice-President of the United States."[42]

Rufus King correctly understood the idea of a balanced government independent of "popular whims" and endowed with plenty of strength. He favored a long term for the President, and speaking on the executive department in the Convention he "expressed his apprehensions that an extreme caution in favor of liberty might enervate the government we were forming. He wished the house to recur to the primitive axiom that the three great departments of governments should be separate and independent: that the executive and the judiciary should be so, as well as the legislative: that the executive should be equally so with the judiciary . . . He [the executive] ought not to be impeachable unless he hold his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised; But under no circumstances ought he to be impeachable by the legislature. This would be destructive of his independence and of the principles of the constitution. He relied on the vigor of the executive as a great security for the public liberties."[43] King also believed in the principle of judicial control - that most effective check on the popular attacks on property through legislatures.[44] 

It was largely on King's initiative that the prohibition against interference with contracts was placed in the Constitution.[45]

William Livingston took a middle ground between the "high-toned" system of John Adams and the simple democracy of such writers as "Centinel" of Pennsylvania.[46] The Defence of the Constitutions he impatiently characterized as "rubbage"; and a "Humiliating and mortifying acknowledgement that man is incapable of governing himself." But for the opposite party that would set up a simple democratic government through legislative majorities, Livingston had just as little patience. "The security of the liberties of a people or state depends wholly on a proper delegation of power. The several component powers of government should be so distributed that no one man, or body of men, should possess a larger share thereof than what is absolutely necessary for the administration of government. . . . The people ever have been and ever will be unfit to retain the exercise of power in their own hands; they must of necessity delegate it somewhere. . . . But it has been found from experience that a government by representation, consisting of a single house of representatives, is in some degree liable to the same inconvenience which attend a pure democracy; a few leading men influence the majority to pass laws calculated not for the public good, but to promote some sinister views of their own. To prevent this, another representative branch is added these two separate houses form mutual checks upon each other; but this expedient has not been found to be altogether effectual. If the legislative power, even tho' vested in two distinct houses is left without any control, they will inevitably encroach upon the executive and judicial; . . . But further, as prejudices always prevail, more or less, in all popular governments, it is necessary that a check be placed somewhere in the hands of a power not immediately dependent upon the breath of the people, in order to stem the torrent, and prevent the mischiefs which blind passions and rancorous prejudices might otherwise occasion. The executive and judicial powers should of course then be vested with this check or control on the legislature; and that they may be enabled fully to effect this beneficial pur- pose, they should be rendered as independent as possible. . . . Tho' it is so short a time since our governments have been put in motion, yet examples have not been wanting of the prevalence of this dangerous thirst after more power in some of our legislatures; a negative therefore lodged in the hands of the executive and judicial powers, is absolutely necessary in order that they may be able to defend themselves from the encroachments of the legislature."[47] Livingston thought that there were some grave defects in the Constitution as drafted at Philadelphia and proposed some emendations. He believed that the President should enjoy the appointing power without any control by the Senate; he thought the Chief Justice should hold office during good behavior and be empowered to appoint his colleagues; and he further held that the President, the Chief Justice, and a Superintendent of Finance should be organized into a council of revision to pass upon the acts of Congress.

James McClurg, of Virginia, left the Convention during the early part of August, and was silent on most of the questions before that body. On July 17, he proposed that the term of the executive should be changed from seven years to "good behavior";[48] and he was particularly anxious to have the executive independent of the legislature. He said that he II was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican government as not to be sensible of the tyrannies that had been and may be exercised under that form. It was an essential object with him to make the executive independent of the legislature; and the only mode left for effecting it, after the vote destroying his ineligibility the second time, was to appoint him during good behavior."[49]

That McClurg had small respect for legislatures in general is shown by a letter which he wrote to Madison from Virginia on August 7, 1787, in which he said: "The necessity of some independent power to control the Assembly by negative, seems now to be admitted by the most zealous Republicans - they only differ about the mode of constituting such a power. B. Randolph seems to think that a magistrate annually elected by the people might exercise such a control as independently as the King of G.B. I hope that our representative, Marshall, will be a powerful aid to Mason in the next Assembly. He has observ'd the continual depravation of Mens manners, under the corrupting influence of our Legislature; & is convinc'd that nothing but the adoption of some efficient plan from the Convention can prevent Anarchy first, & civil convulsions afterwards."[50]

James McHenry belonged to the conservative party of his state and opposed "radical alterations" in the constitution of that commonwealth as it stood in November, 1791.[51]

Writing in February, 1787, on the property qualifications placed on voters and representatives in Maryland, McHenry explained that "These disabilities, exclusions, and qualifications have for their object an upright legislature, endowed with faculties to judge of the things most proper to promote the public good." He was warmly opposed to the doctrine that the people had a right to instruct their representatives.[52] Democracy was, in his opinion, synonymous with "confusion and licentiousness."[53]

James Madison was the systematic philosopher of the Convention and set forth his views with such cogency and consistency on so many different topics that no short quotations will suffice to state his doctrines. His general scheme of political science was, however, embodied in the tenth number of The Federalist, which has been discussed above and need not be reconsidered here.[54]

Alexander Martin was among the silent members of the Convention, for Madison records only an occasional and incidental participation by him in the proceedings.

Luther Martin was the champion of the extreme states' that rights' view, and entertained rather democratic notions for his time, although, in arguing against the clause prohibiting Congress to issue paper money, he held that, "considering the administration of the government would be principally the in the hands of the wealthy,” there could be little danger from an abuse of this power. Martin was in fact a champion of paper money in his state, and he opposed that part of the Constitution which prohibited the emission of bills of credit. As a representative of the more radical section of his community, he was against the clauses restricting the states to the use of the gold and silver coin of the United States, and was opposed to the clause forbidding the impairment of the obligation of contract. Speaking on the latter point he said: "There might be times of such great public calamities and distress, and of such extreme scarcity of specie, as should render it the duty of a government for the preservation of even the most valuable part of its citizens in some measure to interfere in their favor, by passing laws totally or partially stopping the courts of justice, or authorizing the debtor to pay by installments, or by delivering up his property to his creditors at a reasonable and honest valuation. The times have been such as to render regulations of this kind necessary in most or all of the states, to prevent the wealthy creditor and the moneyed man from totally destroying the poor, though even industrious debtor. Such times may again arrive. ...I apprehend, Sir, the principal cause of complaint among the people at large, is the public and private debt with which they are oppressed, and which in the present scarcity of cash threatens them with destruction, unless they can obtain so much indulgence in point of time that by industry and frugality they may extricate themselves."[55]

As might have been expected, a man entertaining such radical notions about the power and duty of a government to interfere with the rights of personalty in behalf of the debtor could not have accepted the instrument framed at Philadelphia. In fact, Martin refused to sign the Constitution; he wrote a vehement protest against it to the legislature of his state; he worked assiduously against its ratification; and as a member of the state convention, he voted against its approval by his commonwealth - but in vain.

George Mason thoroughly understood the doctrine of a balanced government. Speaking in the Convention on the function of the upper house, he said: "One important object in constituting the senate was to secure the rights of property. To give them weight and firmness for this purpose a considerable duration in office was thought necessary. But a longer term than six years would be of no avail in this respect, if needy persons should be appointed. He suggested therefore the propriety of annexing to the office a qualification of property. He thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man."[56] On another occasion, he presented a motion requiring "certain qualifications of landed property, in members of the legislature."[57] Although Mason refused to sign the Constitution, his reasons were based on personal economic interests, not on any objections to its checks on democratic legislatures.[58]

J.F. Mercer, of Maryland, who opposed the Constitution in its final form and became the belligerent anti-federalist leader in that state, does not appear to have been so warmly devoted to the "people's cause," behind the closed doors of the Convention, for he took exceptions to the proposition that the determination of the qualifications of voters should be left to the several states. But his particular objection was "to the mode of election by the people. The people cannot know and judge of the characters of candidates. The worst possible choice will be made."[59]

Thomas Mifflin took no part worthy of mention in the proceedings of the Convention, and expounded no views of government during the debates.

Gouverneur Morris, of Pennsylvania, was the leader of those who wanted to base the new system upon a freehold suffrage qualification; and, on August 7, he made a motion to this effect. In the course of the discussion which followed, Morris said: "He had long learned not to be the dupe of words. The sound of Aristocracy, therefore, had no effect on him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens this Country with an Aristocracy. The Aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty. Will they be the impregnable barrier agst. aristocracy? - He was as little duped by the association of the words, 'taxation & Representation' -The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because they want prudence, because they have no will of their own. The ignorant & the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining 'freeholders' to be insuperable. Still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. As to Merchts. &c. if they have wealth & value the right they can acquire it. If not they don't deserve it."[60]

In all the proceedings of the Convention, Morris took deep interest and expressed his views freely, always showing his thorough distrust of democratic institutions. As his biographer, Mr. Roosevelt puts it, "He throughout appears as the advocatus diaboli; he puts the lowest interpretation upon every act, and frankly avows his disbelief in all generous and unselfish motives. His continual allusions to the overpowering influence of the baser passions, and to their mastery of the human race at all times, drew from Madison, although the two men generally acted together, a protest against his 'forever inculcating the utter political depravity of men, and the necessity of opposing one vice and interest as the only possible check to another vice and interest.'"[61]

This protest from Madison, however, betrays inconsistency, for on more than one occasion in the Convention he expounded principles substantially identical with those which he reprobated in Morris.[62] Indeed, what appeared to be cynical eccentricity on the part of the latter was nothing more than unusual bluntness in setting forth Federalist doctrines.

Robert Morris, the merchant prince and speculator of Pennsylvania, seems to have broken his rule of absolute silence only two or three times in the Convention, and he apparently made no speech at all. He nominated Washington as president of the assembly, and seconded Read's motion that Senators should hold office during good behavior.[63] There is no doubt that Morris appreciated the relative weight of speeches and private negotiations.[64]

In the proceedings of the Convention, William Paterson was chiefly concerned with protecting the rights of small states; but he signed the Constitution, and after its adoption became an ardent Federalist, serving as an associate justice of the Supreme Court. On the bench he was one of the most scholarly and eminent supporters of the doctrine of judicial control over legislation.[65]

William Pierce took little part in the proceedings of the -Convention. On the question of states' rights he held a broad view, saying, " state distinctions must be sacrificed so far as the general government shall render it necessary - without, however, destroying them altogether. Al- though I am here as a representative from a small state, consider myself as a citizen of the United States, whose general interest I will always support."[66] On no occasion apparently, did Pierce indulge in any general reflections on the basis of all government. He did not sign the Constitution, but he explained this fact by saying, "I was absent in New York on a piece of business so necessary that it became unavoidable. I approve of its principles and would have signed it with all my heart had I been present. To say, however, that I consider it as perfect would be to make an acknowledgement immediately opposed to my judgment."[67]

Charles Pinckney was among the members of the Convention who thought that it was desirable to fix the property: qualifications of members of the national legislature firmly in the Constitution. Speaking on the subject of property and government he said: "The Committee as he had conceived were instructed to report the proper qualification of property for the members of the Natl. Legislature; in stead of which they have referred the task to the Natl Legislature itself. Should it be left on this footing, the first Legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic influence in the Constitution, but he thought it essential that the members of the Legislature, the Executive, and the Judges - should be possessed of competent property to make them independent & respectable. It was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. The Legislature would have the fate of the Nation put into their hands. The President would also have a very great influence on it. The Judges would have not only important causes between Citizen & Citizen but also where foreigners were concerned. They will even be the Umpires between the U. States and individual States as well as between one State & another. Were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in like proportion for the members of the Natl. Legislature. He would however leave the sum blank. His motion was that the President of the U.S., the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a clear unincumbered Estate to the amount of -------- in the case of the President, &c &c -"[68]

Pinckney, in fact, had no confidence in popular government, for on March 28, 1788, he wrote to Madison: "Are you not abundantly impressed that the theoretical nonsense of an election of Congress by the people in the first instance is clearly and practically wrong, that it will in the end be the means of bringing our councils into contempt."[69]

General Charles Cotesworth Pinckney entertained views with regard to the special position that should be enjoyed by property, which were substantially identical with those held by his cousin. He proposed that no salary should be paid to members of the Senate. As this branch, he said, "was meant to represent the wealth of the country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service."[70] General Pinckney also wished to extend property qualifications not only to members of the legislature but also to the executive and judicial departments.[71]

Edmund Randolph was not only fully aware of the d tress to which property had been put under the Articles Confederation, but he also understood the elements of "balanced” government. Speaking on the subject of the structure of the Senate, he said: "If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first, so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U.S. Laboured; that in tracing these evils their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. this tendency of our governments: and that a good Senate seemed most likely to answer the purpose, ...Mr. Randolph was for the term of 7 years. The Democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2d. branch is to control the democratic branch of the Natl. Legislature If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will over whelm it. The Senate of Maryland constituted on like principles had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the Executive, will in all cases be necessary. A firmness & independence may be the more necessary also in this branch, as it ought to guard the Constitution agst. encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch."[72]

George Read was most outspoken in his desire to see the Articles of Confederation completely discarded. He said that "he was against patching up the old federal system: he hoped the idea would be dismissed. It would be like putting new cloth on an old garment. The Confederation was founded on temporary principles. It cannot last; it cannot be amended."[73] He favored vesting an absolute veto power in the executive;[74] and he proposed that Senators should hold office during good behavior.[75]

John Rutledge held that the apportionment of representatives should be on a basis of wealth and population.[76] He favored a property qualification for the legislative, executive, and judicial departments;[77] and he thought that Senators should not be paid.[78] In fact, he was one of the most ardent champions of the rights of property in government in the Convention. He was strictly opposed to the introduction of sentimental considerations in politics, for, speaking on an aspect of slavery and the Constitution, he said: "Religion & humanity had nothing to do with this question - Interest alone is the governing principle with Nations - The true question at present is whether the Southn. States shall or shall not be parties to the Union. If the Northern States consult their interests they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers."[79]

Roger Sherman believed in reducing the popular influence in the new government to the minimum. When it was proposed that the members of the first branch of the national legislature should be elected, Sherman said that he was "opposed to the election by the people, insisting that it ought to be by the state legislatures. The people, he said, immediately should have as little to do as may be about the government. They want information and are constantly liable to be misled."[80]

Richard Dobbs Spaight does not seem to have made any very lengthy speeches in the Convention, but his occasional motions show that he was not among those who believed in "frequent recurrence to the people." On September 6, he moved that the length of the President's term be increased to seven years, and finding this lost he attempted to substitute six years for four.[81] Spaight was the one member of the Convention, however, who came out clearly and denounced judicial control;[82] but he nevertheless proved a stout champion of the Constitution in North Carolina - defending it warmly against charges to the effect that it was aristocratic in character.[83]

Caleb Strong carried into the Convention the old Massachusetts tradition in favor of frequent elections. He favored a one year term for representatives,[84] voted against a seven year term for President,[85] and also opposed a seven year term for Senators.[86] He supported the Constitution, however, in his native state, and was a member of the convention that ratified it.

George Washington's part in the proceedings of the Convention was almost negligible, and it does not appear that in public document or private letter he ever set forth any coherent theory of government. When he had occasion to dwell upon the nature of the new system he indulged in the general language of the bench rather than that of the penetrating observer. For example, in his Farewell Address, which was written largely by Hamilton, he spoke of the government's being "the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation, and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy."[87] He feared, however, the type of politics represented by the Democratic Societies which sprang up during his administration, and looked upon criticism of the government as akin to sedition.[88] Like Jefferson, he also viewed with apprehension the growth of an urban population, for in a letter to La Fayette at the time of the French Revolution, he said, "The tumultuous populace of large cities are ever to be dreaded. Their indiscriminate violence prostrates for the time all public authority."[89]

Hugh Williamson was against placing property qualifications on voters for members of Congress;[90] and he was opposed to the association of the judges with the executive in the exercise of the veto power.[91] He preferred to insert a provision requiring a two-thirds vote for every "effective act of the legislature."[92] He was, however, an opponent of the paper money party in North Carolina[93] and in the Convention he supported a proposition forbidding the states to pass ex post facto laws, on the ground that " the judges can take hold of it."[94]

James Wilson was among the philosophers of the period who had seriously pondered on politics in its historical and practical aspects. In the Convention he took a democratic view on several matters. He favored the annual election of representatives by the people,[95] he advocated the popular election of United States Senators,[96] and he believed also the popular election of the President.[97] He furthermore opposed the proposition to place property qualifications voters.[98] His check on popular legislation was to be found judicial control, at first in the association of the judges with the executive in its exercise, and later in its simple direct form.[99] In fact, Wilson shared the apprehensions his colleagues as to the dangers of democratic legislature though he did not frankly advocate direct property checks.[100] He doubtless believed that judicial control would be sufficient.

George Wythe was a representative of the old school of lawyers in Virginia, and he was a profound student of historical jurisprudence, although he apparently made no attempt to apply his learning to any of the general political questions before the Convention. He was a warm advocate of the doctrine of judicial control and gave practical effect to principles while on the bench in Virginia.[101]

The conclusion seems warranted that the authors of The Federalist generalized the political doctrines of the members of the Convention with a high degree of precision, in spite of the great diversity of opinion which prevailed on many matters.

  1. A few whose views were not ascertained are omitted.
  2. Farrand, Records, Vol. I, p. 469.
  3. Above, p. 65.
  4. Farrand, Records, Vol. I, p. 100.
  5. Farrand, Records, Vol. I. p. 421.
  6. Ibid., Vol. II, p. 32.
  7. Ibid., Vol. II, p. 33.
  8. Ibid., Vol. II, p. 390.
  9. Ibid., Vol. I, p. 144.
  10. Ibid., p. 529.
  11. Ibid., p. 562.
  12. Ibid., p. 605.
  13. Ibid., Vol. II. p. 300.
  14. Sanderson, op. cit., p. 168.
  15. Ibid., p. 169.
  16. Farrand, Records, Vol. I, p. 693.
  17. Ibid., Vol. I, p. 642.
  18. Farrand, Records. Vol. III. p. 350.
  19. McRee, Life and Correspondence of James Iredell. Vol. II. pp. 161. 168. 78.
  20. Peele. Lives of Distinguished North Carolinians, p. 75. Davie's great collection of papers was destroyed in Sherman's raid. Ibid., p.
  21. Farrand, Records, Vol. I, p. 86.
  22. Ibid., Vol. II, p. 202.
  23. Farrand, Ibid., Vol. II, p. 207.
  24. H.J. Ford, Rise and Growth of American Politics, p. 113.
  25. Farrand, Records, Vol, II, pp. 67,68, 63, 101, 108, 111.
  26. Ibid., Vol. II, p. 73.
  27. Ibid., Vol. II, p. 207.
  28. Farrand, Records, Vol. II, p. 201.
  29. Ibid., pp. 362, 629, 689.
  30. Ibid., Vol. I, p. 48; Vol. III, p. 297.
  31. Ibid., V01. I, pp. 94, 99.
  32. Ibid., Vol. II, p. 204.
  33. Scharf and Wescott, History of Philadelphia, Vol. I, p. 447.
  34. Farrand, Records, Vol. I, p. 48.
  35. Ibid., Vol. I, p. 154.
  36. Ibid., Vol. II, p. 122 and pp. 73-79.
  37. Ibid., Vol. I. pp. 288 .
  38. Ibid., Vol I, pp. 299 ff.
  39. Farrand, op. cit., Vol. II, p. 48.
  40. See above, p. 70.
  41. H. Binney, Leaders of the Old Bar of Philadelphia, p. 86.
  42. Ibid., p. 87.
  43. Farrand, Records. Vol. II. p. 66.
  44. Beard, The Supreme Court and the Constitution, p. 29.
  45. Farrand, Records, Vol. II. p. 439.
  46. See below, p. 312.
  47. Observations on Government, Including Some Animadversions on Mr. Adams's Defence of the Constitutions of Government of the United States of America, etc., published in 1787, by Livingston. under the pen-name of "A Farmer of New Jersey." The pamphlet is sometimes ascribed to J. Stevens, but there is good authority for believing that Livingston is the author. It is not inconsistent with his notions on judicial control; see American Historical Review. Vol. IV, pp. 460 ff.
  48. Farrand, Records, Vol. II. p. 33.
  49. Farrand, Records, Vol. II, p. 36.
  50. Documentary History of the Constitution, Vol. IV, p. 245.
  51. Letter to Hamilton, Library of Congress, Hamilton Mss., Vol. XXIII, p. 93.
  52. American Museum, Vol. IV, p. 333.
  53. Steiner, Life and Correspondence. p. 527.
  54. Above. p. 156. Mr. E. W. Crecraft, of Columbia University, has in preparation a dissertation on Madison's political philosophy.
  55. Farrand, Records, Vol. III, pp. 214 ff.
  56. Farrand, Records, Vol. I, p. 428.
  57. Ibid., Vol. II. p. 121.
  58. See above, p. 128.
  59. Farrand, Records, Vol. II, p. 205.
  60. Farrand, Records, Vol. II. pp. 202 if.
  61. Roosevelt, Gouverneur Morris, p. 140.
  62. See The Federalist, No.51.
  63. Farrand, Records, Vol. I, p. 409. 4
  64. For an example see ibid., p. 11, note. He also entertained Washington during the sessions of the Convention. American Historical Association Report (1902), Vol. I, p.92.
  65. Beard, The Supreme Court and the Constitution, p. 37.
  66. Farrand, Records, Vol. I, p. 474.
  67. Ibid., Vol. III, p. 100.
  68. Ibid., Vol. II, p. 248.
  69. Madison Mss., Library of Congress; date of March 28, 1788.
  70. Farrand, Records, Vol. I, p. 426.
  71. Ibid., Vol. 11, p. 122.
  72. Ibid., Vol. I, p. 51 and p. 218.
  73. Ibid., Vol. I, p. 136.
  74. Ibid., Vol. II, p. 200.
  75. Ibid., Vol. I, p. 409.
  76. Ibid., Vol. I, p. 582.
  77. Ibid., Vol. II, p. 249.
  78. Ibid., Vol. I, p. 211.
  79. Ibid., Vol. II, p. 364.
  80. Farrand, Records, Vol. I, p. 48; also, p. 154.
  81. Ibid., Vol. II, p. 525.
  82. Beard, The Supreme Court and the Constitution, p. 53.
  83. Elliot, Debates, Vol. IV, p. 207.
  84. Farrand, Records, Vol. I, 361.
  85. Ibid., p. 72.
  86. Ibid., p. 219.
  87. Writings (Sparks ed., 1848). Vol. XII, p. 222; see below, p. 299.
  88. Ibid.. Vol. X, p. 429.
  89. Ibid.. Vol. X, p. 179.
  90. Farrand, Records. Vol. II. pp. 201, 250.
  91. Ibid., Vol. I, p. 140.
  92. Ibid.. Vol. I, p. 140.
  93. Above, p. 146.
  94. Farrand, Vol. II, 376.
  95. Farrand, Record. V 01. I, p. 49 and passim.
  96. Ibid., p. 52 and passim.
  97. Ibid., p. 68 and passim.
  98. Ibid., Vol. I, p. 375; Vol. II, p. 125 and passim.
  99. Ibid., Vol. I, p. 98; Beard, The Supreme Court and the Constitution, p. 42.
  100. Lectures on Law (1804 ed.) Vol. I, pp. 398 ff.
  101. Beard, The Supreme Court and the Constitution, p. 48.