attempt at government control" than they are in any European country. (In The Independent, April 16, 1908.)

President Hadley points out that the first provision has resulted in "preventing a majority of the voters, acting in the legislature or through the courts (the convenient European methods), from correcting evils in railroad building or factory operation until the stockholders or owners have had opportunity to have the case tried in the courts"; and, as the same article makes plain, the courts have usually been inclined to favor the vested property interests.

The pernicious results of the second provision could not well have been foreseen. They have come about through a remarkable decision of the Supreme Court (the Dartmouth College Case, 1819), extending the meaning of the word "contract" to include even the grants of privilege and power made by a State itself to public-service corporations. As a consequence, many such corporations have been inviolably intrenched, for an indefinite period,1 in special privileges which they got from cor. rupt legislatures and for which they give no fit return to society.

In the hundred years from 1803 to 1903, the Supreme Court declared two hundred State laws unconstitutional. Fifty-seven of these were voided on the ground that they impaired the obligation of some contract." Most of these had aimed solely at needful regulation of great corporations in the interest of social well-being, such legislation as is common in European democracies like England or France or Switzerland.

356. The Convention would have liked a much more aristocratic Constitution; but the members saw that if the Constitution were clearly less democratic than a given State constitution, it would be hard to secure ratification in that

1 According to the spirit of this decision, unless the State has limited the lifetime of a grant, or has expressly reserved its own right to change the grant at will, the grant runs forever. In recent years, the States have in great measure guarded themselves against such danger for the future by expressly reserving their right to modify all such grants. A recent amendment to the constitution of Wisconsin runs: "All acts [dealing with corporations] may be altered and repealed by the legislature at any time." This provision, now, is a part of the "contract" when the Wisconsin legislature grants a franchise.

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THE RIGHT TO VOTE

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State. It was not going to be easy to get States enough at best. And so we owe such democratic character as the Constitution has, in great degree, to the relatively unknown men, who, ten years before, framed the Revolutionary State constitutions.

This was shown in the settlement of the franchise. The House of Representatives was the only part of the government left to be chosen directly by "the people." But who were "the people" in this political sense? Hamilton, Morris, and Dickinson strove earnestly to limit the franchise to freeholders,

so as to exclude "those multitudes without property and without principle, with whom our country, like all others, will, in time, abound.”1 Even Madison expressed himself as theoretically in favor of such restriction, fearing that a propertyless majority would either plunder the rich or become the tools of an aristocracy. Franklin argued vigorously against the restriction, urging the educational value of the franchise for the masses; and George Mason, in the language of his bill of rights of 1776, declared, "The true idea is that every man having evidence of attachment to the community, and permanent common interest with it, ought to share in all its rights and privileges." 2 But the defeat of the restriction was due not to these lonely champions, but to the reminder that in more than half the States the State franchise was already wider than landholding, and that no voter could be expected to favor a Constitution that would disfranchise him in the Federal government. The provision finally adopted, therefore, aimed to keep the franchise as restricted as was compatible with probable ratification. The Federal franchise was to be no wider in any State than the State franchise in that State.

This arrangement has worked, unexpectedly, for democracy. The States, acting one by one, modified their constitutions in the direction of democracy faster than one great unit like the Nation could have done; and as any State extended its own franchise, so far it extended also the Federal franchise.

1 These words are Dickinson's, but the sentiment was general.

2 Cf. Source Book, No. 136, and comment.

CHAPTER XXXI

RATIFICATION

357. The "two critical decisions" of the Convention were: (1) to substitute a new plan of government,—instead of trying merely to "patch up" the old constitution; and (2) to put that new government into operation when it should be accepted by nine States, without waiting for all of them.

The last decision was directly contrary to instructions from the State legislatures which had appointed the delegates. It was also in conflict with a specific provision in the Articles of Confederation, to which the States had solemnly pledged “their sacred faith” (§§ 330, 331, c). But men had come to see that America must either strangle in the grip of the old constitution, or she must break its bonds. Constitutional remedy had proved impossible. Wisely and patriotically the Convention recommended an unconstitutional remedy, and the country adopted it. The ratification of the Constitution was a peaceful revolution. A friendly looker-on wrote:

“Here, too, I saw some pretty shows: a revolution without blows : For, as I understood the cunning elves, the people all revolted from themselves."'

358. When Congress received the Constitution, it recommended the State legislatures to call State conventions to accept or reject it. The contest was now transferred from Philadelphia to the country at large, and in every State men divided into parties. The advocates of the "new roof" shrewdly took to themselves the name Federalists,1 instead of

1 Luther Martin of Maryland was one of the delegates who withdrew from the Philadelphia Convention toward its close. In a letter to his legislature, justifying his action, he explains that the Convention had voted down a resolution for a "federal" form of government and instead had adopted a resolu

§ 360]

DEMOCRATIC OBJECTIONS

307

the unpopular term Nationalists, and so left to their opponents only the weak appellation Antifederalists. A torrent of pamphlets and newspaper articles issued from the press,1 and every crossroads was a stage for vehement oratory.

359. The proposed Constitution was attacked partly for its encroachments on the States, partly for its undemocratic features. Opponents pointed to the absence of a bill of rights, and to the infrequency of elections, and to the vast powers of the President and Senate (parts of the government remote from popular control). George Mason asserted that such a Constitution "must end either in monarchy or tyrannical aristocracy"; and a sarcastic democrat, claiming to be a Turk, praised the Constitution for "its resemblance to our much admired Sublime Porte."

The real source of apprehension, however, was not any specific provision in the document so much as a vague distrust of the aristocratic Convention. Many people believed sincerely that the meeting at Philadelphia had been a "deep and dark conspiracy against the liberties of a free people." Thus "John Humble" ironically exhorted his fellow "low-born," dutifully to allow the few "well-born" to set up their "Divine Constitution" and rule the country.

360. Still both parties had to admit the seriousness of the existing situation. The Antifederalists had no remedy to propose. The Federalists offered one for which they claimed no peculiar

tion for a "national government": "Afterwards the word 'national' was struck out by them, because they thought the word might tend to alarm; and although now they who advocate this system pretend to call themselves federalists, in Convention the distinction was quite the reverse. Those who opposed the system were there considered and styled the federal party, those who advocated it, the antifederal." — ELLIOT's Debates, I, 362.

1 One set of such essays appeared week after week in New York papers under the title The Federalist. They were written by Hamilton, Madison, and Jay, and were soon republished in book form. They remain the most famous commentary on the Constitution.

2 Cf. Source Book, No. 160, for the large proportion of delegates at Philadelphia who seem to have had little special qualification except that they were "gentlemen of good birth and large fortune." And cf. also No. 152.

excellence, but which, they urged, did offer escape from anarchy, probably the only escape likely to be available. Under such pressure, many a flaming Antifederalist, elected to a State convention expressly to reject the Constitution, came over to its support.1

361. The Constitution was sent forth September 17, 1787. A strenuous nine-months' campaign brought it a bare victory. Organized and ready, the Federalists at first carried all before them, securing ratification during December and January in Delaware, New Jersey, Georgia, Connecticut, and, after a bitter struggle, in Pennsylvania. Somewhat later, Maryland and South Carolina were added to the list.

The remaining States long remained doubtful or opposed. North Carolina and Rhode Island refused to ratify. They could be spared, -as perhaps New Hampshire could have been; 2 but a failure in Massachusetts, New York, or Virginia would almost surely have queered the whole movement. In all three of these States (as probably in most of the others) a direct vote of the people would certainly have rejected the Constitution. Even in the conventions, there was at first a strong hostile majority in each of these three; and, after the many weeks of argument and persuasion, to have defeated ratification would have required in the final vote a change in Massachusetts of only 10 votes out of 355; in Virginia, of only 5 out of 168; and in New York, of 2 out of 57. And the slim majorities for the Constitution were obtained only by pledges

1 More personal arguments were not neglected. In Massachusetts the Federalists brought over Hancock by promising him a reëlection as governor and perhaps implying that he should be the first Vice-President of the new government (Source Book, No. 164).

2 In New Hampshire a hostile convention had adjourned for some months. 8 The Rhode Island legislature, instead of calling a convention, distributed copies of the Constitution among the voters and provided for a direct popular vote. The Federalists, certain of defeat, declaimed against this method as improper, and remained away from the polls. The vote stood 2708 to 232. Two years later, a convention accepted the Constitution 34 to 32. In general, the commercial centers favored the Constitution, while the agricultural and western sections opposed it.