The glorious cause, p.79
The Glorious Cause, page 79
II
In the first four days after the Convention opened, it elected George Washington as its chairman, and William Jackson, who had served as an assistant to the secretary of war, as its secretary. It also adopted rules which had been prepared by a committee of George Wythe, Alexander Hamilton, and Charles Pinckney. At this time, the Convention decided to keep its proceedings a secret, a wise decision making candor and flexibility possible, both essential to the accommodation of differences. Some promise of differences appeared in the credentials of the delegations which the Convention read in the opening sessions. Delaware’s, for example, instructed its delegates not to agree to any system depriving the states of the customary equality of suffrage in the Congress.10
On May 29, Edmund Randolph turned the Convention to its work by offering the Virginia Plan. Randolph sang his song—music and lyrics by James Madison—in a tempo appropriate to a dirge. The present situation of America, the Convention was given to understand, was not good. In fact, Randolph said, there existed such a crisis as to promise the fulfillment of the prophecies of an American downfall. To prevent a downfall and to forestall anarchy—his speech suggested that the two were indistinguishable—a change in government was necessary, a conclusion that could hardly have surprised that assemblage.
The “change” proposed in the Virginia Plan implied that the Articles of Confederation should be discarded even though the first resolution offered by Randolph simply declared that they were to be “corrected and enlarged.” This resolution was followed by fourteen more which laid out the framework for a powerful central government. The major branch of this government was to be a “national legislature” composed of two houses, the first popularly elected and the second chosen by the first from nominations of the state legislatures. This national legislature would choose the executive and the judiciary. Its legislative authority would include all the powers of the Confederation Congress and in addition a general grant “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Besides this general grant, it was empowered “to negative all laws passed by the several states, contravening in the opinion of the national legislature the articles of the Union.” The national legislature in effect would decide when the new constitution had been violated by state laws, and it would veto them. The national legislature would be a powerful body but not an unrestrained one: the Virginia Plan called for a check on it through the operation of a Council of Revision, composed of the executive and a “convenient number” of judges, who might veto statutes. The national legislature possessed the authority to play the final hand in the game, however, for it might reenact legislation over the Council’s veto.11
The tenth resolve of the Plan provided for the admission of new states, and the eleventh guaranteed a republican government to old and new states. The fourteenth resolve required state officials to take an oath to support the new constitution, and the final one provided for ratification in state conventions convened for the purpose.
The day following the introduction of the Virginia Plan, May 30, the Convention resolved itself into a committee of the whole, in order to permit discussion and action unencumbered by the fairly rigid rules agreed upon earlier. During the next two weeks the delegates learned at first hand just how important careful preparation is in deliberative bodies. For the preparation of the Virginians and the thoughtfully conceived plan of government they offered their colleagues gave them the initiative. They had framed the terms of the discussion, and now in these two weeks they and their supporters in the large states forced the pace of deliberations and, for the most part, controlled the Convention. Their opponents from the small states found themselves on the defensive, forced always to deal with the questions raised by the large, and compelled to answer and refute rather than to propose.
Not that the large states had everything their own way in these early days of the meeting or even that they agreed upon everything among themselves. As soon as the committee of the whole began its review of the Virginia Plan, Gouverneur Morris suggested that the first resolve—that the Convention should correct and enlarge the Articles—ought to be “postponed.” Morris and everyone else recognized that Randolph had proposed much more than correction and enlargement, and Randolph now had to admit it. Instead of the first, he now offered three propositions which made clear that national sovereignty would replace state sovereignty if the Virginia Plan were accepted. The committee eased its way over these shoals by agreeing that a national government ought to be established consisting of a “supreme” legislature, executive, and judiciary. It then entered the really dangerous waters of representation in the legislature. The Virginia Plan proposed that representation should be allocated according to population. The actual formula used had been derived by Madison in 1783, reckoning five slaves as three freemen for purposes of establishing state financial contributions to the Congress. The committee had hardly begun to discuss representation when Delaware’s George Read reminded everyone that his state’s commission forbade its delegates to agree to any departure from state equality. If the Convention discarded equality, Read reminded, he and his colleagues might have to go home, a threat which doubtless irritated men who wanted to discuss the problem. But Read’s ploy worked, and the Convention decided that representation was a matter that could wait for a few days.12
Virtually every other resolution Randolph offered made its way into the discussions of the next two weeks. How the first branch—the lower house—should be elected was taken up on May 31 and decided in favor of the people. Disagreement occurred immediately afterwards over the election of the upper house. The committee turned to the executive during the next two days with little luck. Should the executive be one or many? A single executive smacked of monarchy to Randolph, who pointed out that “the permanent temper of the people was adverse to the very semblance of monarchy.” Two days later James Wilson punctured Randolph’s arguments for a plural executive by pointing out that they dealt more with what people would say about a single executive than genuine objections to it. “All know,” Wilson remarked, “that a single magistrate is not a king.” Wilson’s most telling rebuttal was his reminder that all the states had decided on a single executive for themselves in their recently drafted constitutions. The vote that followed Wilson’s speech confirmed his judgment, seven to three in favor of a single executive.13
The provision for a judicial branch raised difficult questions, especially of the method of appointment, which the committee found easier to postpone than to answer. It agreed rather easily that a fair method of admitting new states should be included in the new constitution and then began discussion of ratification of whatever new arrangements the Convention might produce. Over the next few days the committee fleshed out agreement achieved in the previous week, decided on a transition from government under the old Articles to the new, resolved to guarantee a republican form of government to the states and to require state officials to support the new constitution. It also approved the ratification by special conventions, the method proposed under the Virginia Plan. By June 13 the committee had finished its work and reported the results to the Convention. The results were substantially the Virginia Plan without the Council of Revision, which most delegates recognized as a clumsy contrivance sure to make mischief. Madison’s near-mad scheme to give the Congress a veto over state legislation remained in the Plan. The principle of equality of representation in the Congress did not survive these deliberations as the committee recommended allocation of representatives in both houses according to population with a slave counting as three-fifths of a man.14
Representation and the means of selecting representatives provided subjects which might have deadlocked the committee of the whole. The large states had their way as the small scrambled about trying to pull themselves together. The small did succeed in substituting election of the second house by state legislatures for the means recommended in the Virginia Plan—election by the lower house.15
Although nothing appears in the notes of the debates, representation in Congress and the election of its members must have been connected in the delegates’ minds. If both houses were popularly elected, as James Wilson desired, the argument for apportioning representatives by population would be almost irresistible. Hence the debate over the selection of the lower house carried an extraordinary, though unspoken, meaning.
Roger Sherman of Connecticut almost made this meaning explicit in his opposition to popular election in the following sentence: “If it were in view to abolish the State Governments the elections ought to be by the people.” In other words if the state governments were to be preserved they must elect the officers of the national government. Early in the Convention, Sherman also professed a strong animus against the people saying that they “should have as little to do as may be about the Government. They want information and are constantly liable to be misled.” Later when the protection of state rights was not at stake, Sherman proved more sympathetic to popular control than these first statements suggest.16
Sherman’s ally in opposing elections by the people, Elbridge Gerry of Massachusetts, does not seem to have opposed such elections for Sherman’s reasons. Gerry, who decried a leveling spirit, insisted simply that “The evils we experience flow from the excess of democracy.”17
The day after the committee of the whole reported its revision of the Virginia Plan, William Paterson of New Jersey stood up and asked for an adjournment of a day to allow several delegations time to offer a “purely federal” plan to the Convention. The Convention adjourned and the next day, June 15, when Paterson presented the New Jersey Plan, the meaning of “purely federal” became clear. Paterson’s plan—the production of delegates from Delaware, New York, Connecticut, Maryland, as well as New Jersey—included several provisions clearly borrowed from Virginia’s proposals, but retained the essential structure of the old Confederation—a Congress of one house in which the states were equally represented. The Congress would appoint a plural executive, and the executive would appoint a supreme court of rather limited jurisdiction. State equality remained the primary concern of New Jersey’s delegation and of those from the other states that helped in composing the alternative to the Virginia Plan. These states did not object to a powerful central government—the New Jersey Plan required that congressional statutes “and all Treaties made and ratified under the authority of the United States shall be the supreme law of the respective states so far forth as those acts or treaties shall relate to the said states or their citizens.” Should a state refuse to observe a statute or a treaty, the executive was empowered to compel its adherence. And the Congress would enjoy new powers, most notably to tax and to regulate commerce.18
The New Jersey Plan’s first resolution described those that followed as measures which “revised, corrected and enlarged” the Articles of Confederation, a nice—and wicked—touch, lifted from Randolph’s unamended plan. As an enlargement of the Articles, it would of course have to win the approval of the Congress and the state legislatures. There was nothing in the New Jersey Plan calculated to rouse democratic sympathies.
Paterson described his proposal in measured terms. It involved, he said, no violation of the people’s trust; it “accorded with the powers of the Convention” and the “sentiments of the people.” What Paterson meant in this part of his speech was that the Convention was approaching revolutionary action in approving the Virginia Plan with its fresh structure and its requirement that the new constitution receive popular ratification. His plan in contrast brought no threat to constitutionalism or public confidence.19
The committee of the whole listened and understood. In the next three days James Wilson compared the two plans and suggested that a legislature composed of only one house invited a “legislative despotism.” “If the legislative authority be not restrained,” Wilson said, “there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue and good sense of those who compose it.” Wilson also took up Paterson’s contention that the Virginia Plan exceeded the authority of the Convention by stating that the Convention could “conclude nothing” but was “at liberty to propose anything.”20
Those arguments found sympathetic listeners in the large states. But it remained for Charles Pinckney and James Madison to isolate the underlying difference between the two parties of adherents. The “whole,” according to Pinckney, came to this: “give New Jersey an equal vote, and she will dismiss her scruples, and concur in the National system.” Madison, who spoke on June 18, the day after Hamilton gave a long, irrelevant discourse praising elective monarchy, pointed out that New Jersey and the other like-minded states might someday rue their advocacy of the equality of states. The prospect of many new states formed out of the West should make New Jersey pause; these states would undoubtedly enter the Union “when they contained but few inhabitants. If they should be entitled to vote according to their proportions of inhabitants, all would be right and safe.” But let them “have an equal vote, and a more objectionable minority than ever might give law to the whole.”21
The debate stopped when Madison finished, and the vote showed the weakness of the small states. Only New Jersey and New York voted for Paterson’s plan, and the committee reported out the Virginia proposals. The small states wanted to control the government and agreed that state equality offered the means. But at this time they could not agree on much more.22
Small-state delegates attempted to collect themselves in the next couple of days as the Convention took up the report of the committee of the whole, the revised Virginia Plan. The large states first raised defeated spirits in the small by agreeing that the first resolution should read that the “Government of the United States ought to consist of a supreme Legislative, Executive, and Judiciary” rather than the “national” government. The word “national” excited small-state suspicions of the intentions of the large, and the change in wording went at least part way toward reassuring them. But the reassurance they most craved was equality in the national legislature. Three of them—New Jersey, Delaware, and New York—immediately opposed the resolution calling for a Congress of two houses. They had no hope of making their opposition stick; rather they intended to extract a concession to equality of the states. Roger Sherman offered a compromise almost at once, saying that “if the difficulty on the subject of representation cannot be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other.” The large states refused the bait and landed their own fish, approval of a two-house legislature, with ease.23
Aristocratic bias, or planters’ interest, next made itself felt in a motion, offered by General Charles Cotesworth Pinckney of South Carolina, that the lower house should be elected as the state legislatures directed rather than by the people. The play here for planter control with the protection of slavery in mind escaped no one. Of the southern states, however, only South Carolina, joined by Connecticut, New Jersey, and Delaware, supported this motion. The Virginia Plan’s provision that the people should choose the first branch then won approval with only New Jersey opposing.24
The problem of the second branch remained unsolved, and, though the Convention spent part of the last days of June discussing such matters as who should pay representatives and what qualifications they should have, it persisted in popping up. On June 27 the Convention began still another effort at dealing with it. These efforts unfortunately served not only to clarify premises but to harden them. That result, though not unanticipated perhaps, stands as another instance in history of good intentions leading to unintended results.25
The question of why the delegates debated the issue of representation so forcefully is not as simple as it seems. They might have abandoned what was by this time their usual practice and simply voted; much after all had been said about representation. But the delegates were, for all their practicality, much too imaginative to allow an opportunity to pass without examining once again the major division among them. They were men of pride; some may have believed that they might change the minds of the opposition. In any case almost all dreaded failure—and they were staring at failure. They had no choice but to argue out their differences. Since the large states were urging the acceptance of a constitutional system which could only reduce small-state power, they saw the debates as providing a chance to reassure the small. Over the next few days both Madison and Wilson denied the existence of a “combination” of the large against the others in the Union. Madison reviewed the interests of Massachusetts, Pennsylvania, and Virginia and found nothing that threatened a “combination.”26
Size certainly did not draw them together, he concluded. “Experience rather taught a contrary lesson.” Among individuals, the rich and eminent more commonly fought one another than combined against the weak. Among nations, an analogous situation existed—for example, “Carthage and Rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the Earth.” Among the ancient and modern confederacies the contentions, not the coalitions, of Sparta, Athens, and Thebes proved fatal to the smaller members of the Amphictyonic Confederacy. And if large states “singly”should prove threatening would not the safety of the small be secured best if the Union provided a “perfect incorporation” of the thirteen states, a Union which would have the strength to protect all its citizens from any part?27
There is no reason not to accept as genuine the small states’ fears of the large. They had heard a great deal about majoritarian tyranny in recent months and were to listen to a good deal more. Where, they asked, was the majority but in the large? Madison, Randolph, and Wilson had reproached the small states for their refusal to comply with congressional requisitions and had expressed the impatience of the large states with the small. The small after all were being asked to change a system in which their weight had been evident. No one could anticipate clearly what the new would do to their power, and they, like the large states, wanted to exercise as much control as possible in the Union.28
