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it was necessary to base the political system on the actual conditions of "natural inequality." Uniformity of interests throughout the state, he contended, was impossible on account of the diversity in the faculties of men, from which the rights of property originated; the protection of these faculties was the first object of government; from the protection of different and unequal faculties of acquiring property the possession of different degrees and kinds of property immediately resulted; from the influence of these on the sentiments and views of the respective proprietors ensued a division of society into different interests and parties; the unequal distribution of wealth inevitably led to a clash of interests in which the majority was liable to carry out its policies at the expense of the minority; hence, he added, in concluding this splendid piece of logic, "the majority, having such coexistent passion or interest, must be rendered by their number and local situation unable to concert and carry into effect schemes of oppression"; and in his opinion it was the great merit of the newly framed Constitution that it secured the rights of the minority against "the superior force of an interested and overbearing majority."
Drafting a National Constitution
The convention had not proceeded very far in the consideration of the problems before it when the question was raised as to whether the delegates were bound by their instructions to the mere amendment of the Articles of Confederation or were free to make a revolution in the political system. Mr. Paterson argued that the delegates were bound by their instructions: "If the Confederacy is radically wrong, let us return to our states and obtain larger powers, not assume them ourselves. . . . Our object is not such a government as may be best in itself, but such a one as our constituents have authorized us to prepare and as they will approve."2 Mr. Randolph, however, declared that he "was not scrupulous on the point of power. When the salvation of the republic was at stake, it would be treason to our trust not to propose what we found necessary." 3 With this view, Mr. Hamilton agreed: "We owed it to our country to do on this p. 194.
1 Readings, p. 50.
2 Elliot's Debates, Vol. V,
3 Ibid., Vol. V, p. 197.
emergency whatever we should deem essential to its happiness. The states sent us here to provide for the exigencies of the Union. To rely on and propose any plan not adequate to these exigencies merely because it was not clearly within our powers would be to sacrifice the means to the end." "
Fortunately for the cause of national union, these delegates threw off the restrictions placed upon them by their instructions, and frankly disregarded the fact that they had assembled merely to amend the Articles of Confederation, not to make a new instrument of government. They refused to be bound either by the letter or spirit of the Articles or their orders, for they even provided that the new government should go into effect when ratified by nine states, whereas under the Articles unanimous approval was required for any amendment. In order that their purposes should not be discovered and thwarted by public criticism, the convention sat behind closed doors; their proceedings were kept secret; and members were even forbidden to correspond with outsiders on the topics under discussion. Not until the draft was finished did the people know what the convention had done, and even then they did not know the secret forces which had caused the introduction of certain clauses, or the full intention of the framers as to the ways in which the new government was designed to work.
A large majority of the convention had determined to establish a strong national government to take the place of the confederate system, and to do this it was absolutely necessary to throw aside the fundamental features of the Articles of Con- ! federation, which, according to their instructions, they were assembled to amend. On May 30, 1787, five days after the opening of the convention, a resolution was adopted in the Committee of the Whole, "that a national government ought to be established consisting of a supreme legislative, executive, and judiciary." The distinction between a "federal and a national supreme government," was clearly explained by Gouverneur Morris. "The former," he said, was "a mere compact resting on the good faith of the parties," while the latter had "a complete and compulsive operation"; and he concluded by adding that "in all communities there must be one supreme power and 2 Ibid., Vol. V, p. 134.
1 Elliot's Debates, Vol. V, p. 199.
one only." Mr. Madison, in discussing the problem of representation, observed that "whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign states, it must cease when a national government should be put in their place.' Mr. Read of Delaware even went so far as to say that the national government must soon of necessity swallow up all the state governments; and Mr. Wilson of Pennsylvania declared that he could not even admit the doctrine that when the colonies became independent of Great Britain they were independent of each other, and contended that the colonies were not declared to be free and independent states individually, but only unitedly. Mr. Hamilton went even further than the other members of the convention in his stanch adherence to the idea of a supreme national government; he advocated the appointment of state executives by the general government and wanted to give Congress the power to legislate on every matter whatsoever."
That it was the desire of a majority of the convention to establish a supreme national government is evidenced in nearly every page of the debates. That such was their intention was explicitly declared by Luther Martin, of Maryland, in a letter to the legislature of his state justifying his conduct in withdrawing from the convention. He contended that the plan of government, as devised by the convention, was "a national not a federal government," and one "calculated and designed not to protect and preserve but to abolish and annihilate the state governments." In criticising the advocates of a strong national government, he continued: "So far were the friends of the system from pretending that they meant it or considered it a federal system, that, at the question being proposed, 'that a union of the states merely federal ought to be the sole object of the exercise of the powers vested in the convention,' it was negatived by a majority of the members; and it was afterwards resolved, ' that a national government ought to be formed.' 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 2 Ibid., Vol. V, p. 135.
1 Elliot's Debates, Vol. V, p. 133.
5 Ibid., Vol. V, p. 205.
Ibid., Vol. V, p. 213.
reverse; those who opposed the system were there considered and styled the federal party, those who advocated it, the antifederal." 1
In devising this national system it was necessary to make many compromises. In the first place, the small states demanded equal representation and the large states representation according to population; a compromise gave the small states equality in the Senate and the large states proportional representation in the lower House. In the next place, the slave states wished to have slaves counted in the apportionment of representation a demand which was stoutly opposed by the non-slave states; and a compromise was reached by the provision that in apportioning representation and direct taxes only three-fifths of the total number of slaves should be counted. In the third place, the North, having larger commercial interests than the South, wished to give Congress the power to regulate commerce, but the South, being solicitous of the slave trade, feared its prohibition in case unqualified power was vested in Congress; and the result was a compromise authorizing Congress to regulate commerce, but forbidding it to prohibit the importation of slaves before the year 1808.
In addition to these great compromises which had to be made on account of the diversity among the states in area, population, and wealth, there was a still greater compromise - the most fundamental one of all the compromise between that party in the nation which wanted a government strong enough to pay the national debt, regulate commerce, protect creditors, and sustain property rights in general, and that other party which was especially concerned about a democratic and confederate form of government. The result here was a compromise which, Madison contended, secured the spirit and form of popular government while preventing direct and simple majority rule.3
This compromise, in conjunction with the compromises mentioned above, resulted in the establishment of what is known as the check and balance system. In this system, the President is elected for a four-year term by an indirect process; the Senators are elected for a six-year term (one-third going out every
1 Elliot's Debates, Vol. I, p. 362.
2 For a contemporary view, Readings, p. 45.
3 See Readings, p. 52.
two years) by another process by the state legislatures; the members of the House of Representatives are elected by another process — popular vote for a term of two years; and over against these three institutions is set a Supreme Court composed of judges appointed by another process the President and Senate - for life terms, and enjoying the power to declare null and void the unconstitutional acts of the other departments.
It is highly improbable, therefore, that any political party at a single national election may secure an unqualified control over all of these departments of government and rush through any extremely radical measure. This system is eloquently described in a little anecdote related of Jefferson and Washington. The former on one occasion was advancing many objections to a bicameral legislature, when Washington replied, "You yourself have proved the excellence of two houses this very moment." Astonished at this Jefferson inquired, "I? How is that, General ?" "You have," explained Washington, "turned your hot tea from the cup into the saucer to get cool. It is the same thing we desire of the two houses."
Fundamental Features of the New System
I. The Articles of Confederation provided no separate executive department charged with the high function of enforcing federal law. This grave defect was carefully considered by the convention, and warmly discussed by the advocates of the new system. All were agreed that a strong executive power was indispensable, but they were uncertain as to whether such an important authority should be vested in a single person or in a directorate. They also had no little difficulty in deciding on the method by which the chief magistrate was to be elected.
On the point of a single executive armed with large powers, Hamilton argued with great cogency: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.