The Glorious Cause, page 80
Ellsworth, Sherman, and Johnson, all from Connecticut, made the heart of the case for equality of representation with minor, though longwinded, aid from Luther Martin. The essential weakness in the argument for proportional representation, they insisted, was that it rested on a misunderstanding of the Confederacy. The states in reality were joined together by an agreement much like a treaty; they were free and sovereign. Now they were asked to give up their equal voices in the Union, in effect to be consolidated out of existence, for as Bedford of Delaware explained, “there was no middle way between a perfect consolidation and a mere confederacy of the states.” Bedford’s rhetoric may have embarrassed his colleagues from the small states; they sought not a continuation of the old system but rather a compromise that would give the states an equal voice in the upper house. Still, Bedford’s extravagance had its uses; most notably it made the compromisers look more reasonable and moderate than they really were. Ellsworth himself, a sober and careful advocate, argued that “No instance of a Confederacy has existed in which an equality of voices has not been exercised by the members of it,” an inaccurate assessment of history he was soon to choke back down. In any case there was no need for so drastic a change as popular representation in both houses, Ellsworth contended. “We are running from one extreme to another. We are razing the foundations of the building. When we need only repair the roof. No salutary measure has been lost for want of a majority of the states, to favor it,” an argument—if true—that made the existence of the Convention a little hard to understand.29
There were also principles at stake; both sides agreed on that. The small states saw their version of the government as representing the ideals of the Revolution. Their principles were the rights of man. They professed not to understand why anyone would wish to depart from a constitution that defended their rights. Martin’s remark “that the language of the States being sovereign and independent, was once familiar and understood,” but now seemed “strange and obscure,” carried genuine bewilderment.30
What Luther Martin described as the language of the states did not impress Madison and Wilson as the language of the Revolution. Both rejected the small-state contention that a treaty bound the Confederation together. Far from a union of equals, the Confederation possessed some—but not enough—authority over the states. The examples Madison cited, though not the stuff of the ordinary operations of government, made his point: “In the cases of captures, of piracies, and of offenses in a federal army, the property and persons of individuals depend on the laws of Congress.” What was proposed would lengthen this list and would grant “the highest prerogative of supremacy” to the “National Government.” In this government of considerable power, simple justice required that the majority rule. Wilson agreed and rejected the Connecticut proposal of a compromise—the lower house to be apportioned according to population, the upper according to state equality—and cited statistics which purported to show that such an arrangement would permit the minority to control the majority. Seven states, Wilson noted, might control six; seven with one-third of the country’s population would control six with two-thirds of the population. “Can we forget,” he asked, “for whom we are forming a Government? Is it for men, or for the imaginary beings called States? . . . The rule of suffrage ought on every principle to be the same in the second as in the first branch.”31
Madison phrased the argument even more passionately than Wilson. He denied flatly that the states were sovereign—“in fact they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress.” The states, Madison argued, “are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general confederation. The states ought to be placed under the control of the general government—at least as much so as they formerly were under the King and British Parliament.” And from these propositions about the character of the states—devoid of sovereignty, mere corporations, properly under the thumb of the national government—it followed that since America was a republic, representation must be based on the people.32
The knowledge of history in Madison’s arguments is impressive, his logic is impeccable, and his failure to convince small-state delegates completely understandable. The large states were simply asking too much in expecting the small to accept a status as “corporations,” analogous to “counties,” in a great unitary—the word used more often was “consolidated”—government. Madison’s language was so stark, his conception of federal-state relations so clear-cut that the implications of the Virginia Plan could not escape anyone. What the small states required was assurance that individual rights would be protected under a new constitution and that state lines would not be obliterated. The second concern may indeed have been uppermost in their minds. Logic, history, reason were weak weapons in a struggle against local feeling, especially when that feeling had a long history of its own.33
Feelings found expression on the last day of June. The discussions had eaten deeply of energies, apparently to no good purpose. The small had proposed what they considered to be a compromise; the large under the prod of Madison and Wilson had refused it. With deadlock apparent and failure of the Convention possible, an obviously frustrated and angered Bedford accused the large-state delegations of speaking to the small with a “dictatorial air” and warned that if the large dissolved the meeting the small would begin the search for foreign allies. These words set off a small explosion in King of Massachusetts, who responded with reproaches of his own. Bedford—not he—had spoken with “dictatorial language”; Bedford—not he—had been vehement; Bedford—not he—had declared himself willing to abandon “our common Country.” This exchange occurred on Saturday. Two days later, on Monday, July 2, the Convention divided five states to five, with Georgia split, on the motion to provide equality of representation in the second branch. Roger Sherman described the Convention then as “at a full stop.” A few minutes of discussion revealed that no one wished to remain at a stop; nor did anyone want the Convention to dissolve. With only New Jersey and Delaware voting “no,” the Convention then decided to submit the matter to a grand committee which was instructed to work out a compromise.34
The grand committee included neither Madison nor Wilson. One delegate sat from each state, Franklin from Pennsylvania and Mason from Virginia. The Convention chose the committee by ballot, and its composition promised that some accommodation would be forthcoming. The Convention thus stated its intentions of continuing and of writing a constitution.35
The report delivered by the committee has been usually referred to as the Great Compromise. In fact it conceded the small-state formula as Ellsworth and the Connecticut delegation had devised it—one representative for every 40,000 inhabitants, the count to reckon five slaves as three freemen; the lower house to have the sole right to originate money bills; equality of representation for the upper house.
For the most part reactions followed the usual lines. Gerry, although not altogether pleased with the report, presented it to the Convention and in the next two weeks defended it. He, like several members from large states, may have felt compelled to give his support because of his part in drafting the report. Not all shared this feeling, but any defectors from the older alignment were important. They included Franklin, George Mason, and a man largely unknown to most delegates, William R. Davie of North Carolina.36
Madison opposed and said so with great force. There was something new in his tone, a threatening edge as he spoke of the possibility of “the principal states comprehending a majority of the people” agreeing on a“just and judicious plan” which all other states might “by degrees” accede to, phrasing that implied an attempt to form a union outside the Convention. Gouverneur Morris objected in wild terms—“This Country must be united. If Persuasion does not unite it, the sword will.” And “the Gallows and Halter will finish the work of the sword.” Bedford and others reproached him for this talk, and the work of trying to find agreement continued.37
As was becoming the custom of the Convention, further committees were resorted to as each of the main clauses of the original report were taken up. Whether intended or not, this tactic served to tie more delegates to the report or to some version closely resembling it. Everyone knew that the clause allowing each state a vote in the upper house was, as Gerry said on July 7, “the central question.” Gerry declared himself willing to agree to it rather than have no accommodation at all. Still, the other clauses received close scrutiny and were the subjects of intense discussions.38
The discussions differed from earlier ones. They were spare, almost dry, lacking in references to ancient and modern confederacies and to the ideas of political theory. Principles were stated flatly in a few words. The delegates cut away the context and eschewed indirection in favor of direct assertions about the interests of their individual states. Thus they spent many hours on the number of representatives each state would have in the lower house. They speculated on population growth, trying to anticipate the changes that would have to be accommodated. With growth in mind, Gerry and King argued for a motion which would have forever restricted representatives from new states in the West to a number no greater than “the representatives from such of the thirteen United States as shall accede to this Confederation.” On this point a sense of fairness obtruded itself and coupled to the interests of states with large backcountries produced a majority against the motion.39
A desire to avoid a deadlock produced agreement on one of the sorest points in the Convention: the proposal, originally by Gouverneur Morris (who later regretted it), to make representation in the lower house proportionate to direct taxation. Direct taxation was to be levied on the basis of five slaves counting as three freemen. This equation turned stomachs but seemed necessary if South Carolina and Georgia were to be persuaded to stay within the Union.
The entire proposal won approval on July 16, including the crucial recommendation of equality in the upper house. The vote proved to be as close as possible: Massachusetts divided, with Gerry and Caleb Strong in favor and King and Gorham in opposition; the small-state coalition held together and with North Carolina’s support carried the motion; Pennsylvania, Virginia, South Carolina, and Georgia opposed. New York, which surely would have approved, could not vote—Lansing and Yates had gone home.40
III
The Convention thus solved the problem of power. The national government would be one of strength, and the small states believed that they would have an important hand in its exercise. From this point on, the persistent nationalism of the delegates found expression. With the “compromise” the old alignments collapsed, and divisions thereafter, such as they were, followed sectional and property lines. Not that sectional and property interests fully defined the issues. The Convention after all was in the process of framing a constitution. With the question of power pretty well disposed of, political theory and experience, favorite references of many, could be consulted more directly than when the primary issue lay between large and small states.
The nationalism of the small states appeared immediately as the Convention resumed its business after deciding on equality in the upper house. The sixth resolution of the Virginia Plan was under examination, a resolution dealing with the powers of the national legislature. Roger Sherman moved that the powers should be enumerated, a motion that lost badly—in part because Sherman had not included direct taxation on his list. Bedford immediately proposed that the national legislature be empowered “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent.” Randolph responded with a short assessment which held that Bedford’s idea involved the violation of all the laws and constitutions of the states, a “formidable” idea, he said. Bedford insisted that his version of the grant of power was no more formidable than the one Randolph had given the Convention. With that, discussion ended, and Bedford’s motion passed. The vote revealed that the old coalitions had been shattered: Connecticut opposed and was joined by Virginia, South Carolina, and Georgia. The six states in favor included Massachusetts, Pennsylvania, and the remainder of the small states.41
What powers the national legislature should exercise involved tangled issues which would come up again, and no delegate imagined that Bedford’s motion settled them. The executive branch exposed complexities almost as tortuous, and the Convention failed to master them in the next two weeks. It tried, however, in long sessions which heard Madison and Wilson argue for bringing the people into the heart of the process of electing the executive. Gouverneur Morris, although never a champion of democracy, joined them. His reasons owed more to his fear of intrigue in the national legislature than to his faith in the people. Wilson and Madison noted that the people would be uninvolved in the intimate processes of government, which would also be free of the faction and intrigue normally accompanying those processes. Only leaders of quality would likely produce an outstanding executive. This reasoning may have struck others as rather strained; in any event on July 17 the Convention decided on election of the executive by the national legislature. This decision seemed unsatisfactory to many, but it stood for the time being while the delegates thrashed about over the term of the executive, whether he should be eligible for re-election, be subject to impeachment, and be given a veto over legislation.42
The debates that followed were confused. The delegates may not have felt fatigue after reaching compromise on equality in the second branch, but they showed impatience. They also realized that much remained to be accomplished, and when agreement seemed impossible they pushed ahead to fresh resolutions. Before they adjourned on July 26, for ten days, in order to give a committee of detail—surely an ill-chosen name—time to pull together a constitution in the rough, they managed to make several important decisions. To James Madison’s dismay, they tossed out his cherished notion of a congressional veto of state laws. They also decided that the judiciary should be appointed by the upper house, another decision unsatisfactory to Madison; and they agreed that provisions should be made for amendment of the constitution. Ellsworth and Paterson, in a revival of their earlier partnership, argued that the state legislatures should ratify whatever constitution the Convention drafted. Madison argued for popular ratification and carried the Convention with him.
Throughout the last days of July, when these matters came up, the Convention returned over and over again to the definition of the executive. No clear alignments persisted throughout the convoluted discussions and votes of these days. There were consistent lines of argument, however: Madison and Wilson strongly urged election by the people, or at least election by some body of electors chosen by the people. Madison also argued strongly for giving the authority to revise laws to the executive and a part of the judiciary. His and Wilson’s reasons hinged on their conviction that the national legislature would likely encroach on all other authority and would be an “overmatch for them” even if they did cooperate. As Madison saw things: “Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American constitutions; and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.” Ellsworth, who did not agree with Madison on the method of election, agreed with him on executive and judicial cooperation.43
There were by previous standards other curious alignments until finally on July 26, the Convention put the results of its agreements and disagreements into the hands of the committee of detail. This group was charged to draft a constitution which conformed to the decisions already taken in the Convention. It had also to reckon with the “decisions” the Convention had been unable to make, including several about the executive. Charles Cotesworth Pinckney also delivered his own charge, a warning that if the committee failed to find a way of preventing the emancipation of slaves and the taxation of slaves, his state would withhold its support. The Convention listened politely and then carefully selected a committee which included Pinckney’s colleague John Rutledge, who served as chairman of the group. The other members were Randolph, Gorham, Ellsworth, and James Wilson.44
The committee of detail reported on August 6 as scheduled. It apparently had worked together without major disagreements. Randolph and Wilson seem to have written most of the report, a document which in rough became the Constitution after further revision. The committee of detail had heeded C. C. Pinckney’s warning not to tamper with slavery. The seventh article of the report contained a flat injunction against prohibiting the importation of persons. As far as the rest of the report was concerned, the committee had drawn on the Virginia Plan and earlier decisions of the Convention, and it had incorporated the powers of Congress set forth in the Articles of Confederation. It had also added a number of ideas of its own and ignored one of the most important of the Convention’s: the general grant of power to Congress which Bedford had moved. Still, the Congress as envisioned by the committee would not lack authority—it could tax just about as it wished except that direct taxes must be in proportion to a census, a requirement also intended to protect slavery. Congress was also authorized “to make all laws that shall be necessary and proper for carrying into execution” the powers it and the government were vested with.45
