Chapter VI: The Federal Convention (2)

The second great compromise between northern and southern interests related to the abolition of the foreign slave-trade and the power of the federal government over commerce. All the states except South Carolina and Georgia wished to stop the importation of slaves; but the physical conditions of rice and indigo culture exhausted the negroes so fast that these two states felt that their industries would be dried up at the very source if the importation of fresh negroes were to be stopped. Cotesworth Pinckney accordingly declared that South Carolina would consider a vote to abolish the slave-trade as simply a polite way of telling her that she was not wanted in the Union. On the other hand, the three New England states present in the convention had made up their minds that it would not do to allow the several states any longer to regulate commerce each according to its own whim. It was of vital importance that this power should be taken from the states and lodged in Congress; otherwise, the Union would soon be rent in pieces by commercial disputes. The policy of New York had thoroughly impressed this lesson upon all the neighbouring states. But none of the southern states were in favour of granting this power unreservedly to Congress. If a navigation act could be passed by a simple majority in Congress, it was feared that the New Englanders would get all the carrying trade into their own hands, and then charge ruinous freights for carrying rice, indigo, and tobacco to the north and to Europe. On this point, accordingly, the southern delegates acted as a unit in insisting that Congress should not be empowered to pass navigation acts, except by a two thirds vote of both houses. This would have tied the hands of the federal government most unfortunately; and the New Englanders, enlightened by their own interests, saw it to be so. Here were the materials ready for a compromise, or, as the stout abolitionist, Gouverneur Morris, truly called it, a "bargain" between New England and the far south. New Hampshire, Massachusetts, and Connecticut consented to the prolonging of the foreign slave-trade for twenty years, or until 1808; and in return South Carolina and Georgia consented to the clause empowering Congress to pass navigation acts and otherwise regulate commerce by a simple majority of votes. At the same time, as a concession to rice and indigo, the New Englanders agreed that Congress should be forever prohibited from taxing exports; and thus one remnant of mediæval political economy was neatly swept away.

[Sidenote: This last compromise seems to make the adhesion of Virginia doubtful.]

This compromise was carried against the sturdy opposition of Virginia. The language of George Mason of Virginia is worth quoting, for it was such as Theodore Parker might have used. He called the slave-trade "this infernal traffic." "Slavery," said he, "discourages arts and manufactures. The poor despise labour when performed by slaves. They prevent the immigration of whites, who really strengthen and enrich a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities." But these prophetic words were powerless against the combination of New England with the far south. One thing was now made certain,--that the vast influence of Rutledge and the Pinckneys would be thrown unreservedly in behalf of the new Constitution. "I will confess," said Cotesworth Pinckney, "that I had prejudices against the eastern states before I came here, but I have found them as liberal and candid as any men whatever." But this compromise, which finally secured South Carolina and Georgia, made Virginia for the moment doubtful; for Mason and Randolph were so disgusted at the absolute power over commerce conceded to Congress that, when the Constitution was finished and engrossed on paper, they refused to sign it.

It is difficult to read this or any other episode in our history whereby negro slavery was extended and fostered without burning indignation. But this is not the proper mood for the historian, whose aim is to interpret men's actions by the circumstances of their time, in order to judge their motives correctly. In 1787 slavery was the cloud like unto a man's hand which portended a deluge, but those who could truly read the signs were few. From north to south, slavery had been slowly dying out for nearly fifty years. It had become extinct in Massachusetts, it was nearly so in all the other northern states, and it had just been forever prohibited in the national domain. In Maryland and Virginia there was a strong and growing party in favour of abolition. The movement had even gathered strength in North Carolina. Only the rice-swamps of the far south remained wedded to their idols. It was quite generally believed that slavery was destined speedily to expire, to give place to a better system of labour, without any great danger or disturbance; and this opinion was distinctly set forth by many delegates in the convention.[7] Even Charles Pinckney went so far as to express a hope that South Carolina, if not too much meddled with, would by and by voluntarily rank herself among the emancipating states; but his older cousin declared himself bound in candour to acknowledge that there was very little likelihood indeed of so desirable an event. Not even these South Carolinians ventured to defend slavery on principle. This belief in the moribund condition of slavery prevented the convention from realizing the actual effect of the concessions which were made. Scarcely any cotton was grown at that time, and none was sent to England. The industrial revolution about to be wrought by the inventions of Arkwright and Hargreaves, Cartwright and Watt and Whitney, could not be foreseen. Nor could it be foreseen that presently, when there should thus arise a great demand for slaves from Virginia as a breeding-ground, the abolitionist party in that state would disappear, leaving her to join in the odious struggle for introducing slavery into the national domain. Though these things were so soon to happen, the wisest man in 1787 could not foresee them. The convention hoped that twenty years would see not only the end of the foreign slave-trade, but the restriction and diminution of slavery itself. It was in such a mood that they completed the compromise by recommending a tariff of ten dollars a head upon all negroes imported, while at the same time a clause was added for insuring the recovery of fugitive slaves, quite similar to the clause in the ordinance for the government of the northwestern territory.

[Sidenote: The foundations of the Constitution were thus laid in compromise.]

It was the three great compromises here described that laid the foundations of our Federal Constitution. The first compromise, by conceding equal representation to the states in the Senate, enlisted the small states in favour of the new scheme, and by establishing a national system of representation in the lower house, prepared the way for a government that could endure. This was Madison's great victory, secured by the aid of Sherman and Ellsworth, without which nothing could have been effected. The second compromise, at the cost of giving disproportionate weight to the slave states, gained their support for the more perfect union that was about to be formed. The third compromise, at the cost of postponing for twenty years the abolition of the foreign slave-trade, secured absolute free-trade between the states, with the surrender of all control over commerce into the hands of the federal government. After these steps had been taken, the most difficult and dangerous part of the road had been travelled; the remainder, though extremely important, was accomplished far more easily. It was mainly the task of building on the foundations already laid.

[Sidenote: Powers granted to the federal government.]

In the grants to the federal government of powers hitherto reserved to the several states, the diversity of opinion among the members of the convention was but slight compared to the profound antagonism which had been allayed by the three initial compromises. It was admitted, as a matter of course, that the federal government alone could coin money, fix the standard of weights and measures, establish post-offices and post-roads, and grant patents and copyrights. To it alone was naturally intrusted the whole business of war and of international relations. It could define and punish felonies committed on the high seas; it could maintain a navy and issue letters of marque and reprisal; it could support an army and provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions. But in relation to this question of the army and the militia there was some characteristic discussion. It was at first proposed that Congress should have the power "to subdue a rebellion in any state on the application of its legislature." The Shays rebellion was then fresh in the memory of all the delegates, and their arguments simply reflected the impression which that unpleasant affair had left upon them. Charles Pinckney, Gouverneur Morris, and John Langdon wished to have the power given to Congress unconditionally, without waiting for an application from the legislature. But Gerry, who had been on the ground, spoke sturdily against such a needless infraction of state rights. He was utterly opposed, he said, to "letting loose the myrmidons of the United States on a state without its own consent. The states will be the best judges in such cases. More blood would have been spilt in Massachusetts in the late insurrection if the general authority had intermeddled." Ellsworth suggested that Congress should use its discretion only in cases where the legislature of the state could not meet; but Randolph forcibly replied that if Congress is to judge whether a state legislature can or cannot meet, the difficulty is in no wise surmounted. Gerry's view at last prevailed, and in accordance therewith it was decided that the federal power should guarantee to every state a republican form of government, and should protect each of them against invasion; and on application of the legislature, or of the executive (if the legislature could not be convened), it should protect them against domestic violence. This arrangement did not fully provide against such an emergency as that of rival and hostile executives in the same state, as under the so-called "carpet-bag" governments which followed after the War of Secession, but it was doubtless as sound a provision as any general constitution could make.

The federal government was further empowered to borrow money on the credit of the United States; and it was declared that all debts contracted and engagements entered into before the adoption of this constitution should be as valid against the United States under this constitution as under the confederation. There was to be no repudiation or readjustment of debts on the ground of inability to pay. Congress was further empowered to establish a uniform rule of naturalization and a uniform law of bankruptcy. But it was prohibited from passing bills of attainder or _ex post facto_ laws, or suspending the writ of _habeas corpus_, except under the stress of rebellion or invasion. It was provided that all duties, imposts, or excises should be uniform throughout the United States. The federal government could not give preference to one state over another in its commercial regulations. It could not tax exports. It could not draw money from the treasury save by due process of appropriation, and all bills relating to the raising of revenue must originate in the lower house, which directly represented the people. Congress was empowered to admit new states into the Union, but it was not allowed to interfere with the territorial areas of states already existing without the express consent of the local legislatures. To insure the independence of the federal government, it was provided that senators and representatives should be paid out of the federal treasury, and not by their respective states, as had been the case under the confederation. Except for such offences as treason, felony, or breach of the peace, they should be "privileged from arrest during their attendance, at the session of their respective houses, and in going to or returning from the same; and for any speech or debate in either house" they were not to be "questioned in any other place." It was further provided that a territory not exceeding ten miles square should be ceded to the United States, and set apart as the site of a federal city, in which the general government should ever after hold its meetings, erect its buildings, and exercise exclusive jurisdiction. During the past four years the Continental Congress had skipped about from Philadelphia to Princeton, to Annapolis, to Trenton, to New York, until it had become a laughing-stock, and the newspapers were full of squibs about it. Verily, said one facetious editor, the Lord shall make this government like unto a wheel, and keep it rolling back and forth betwixt Dan and Beersheba, and grant it no rest this side of Jordan. This inconvenience was now to be remedied. Congress was hereafter to have a federal police force at its disposal, and was never more to be reduced to the humiliation of a fruitless appeal to the protecting arm of a state government, as at Philadelphia in the summer of 1783. Furthermore, the Continental Congress had of late years commanded so little respect, and had offered so few temptations to able men in quest of political distinction, that its meetings were often attended by no more than eight or ten members. It was actually on the point of dying a natural death through sheer lack of public interest in it. To prevent any possible continuance of such a disgraceful state of things, it was agreed that the Federal Congress should be "authorized to compel the attendance of absent members, in such manner and under such penalties as each house may provide." Had the political life of the country continued to go on as under the confederation, it is very doubtful whether such a provision as this would have remedied the evil. But the new Federal Congress, drawing its life directly from the people, was destined to afford far greater opportunities for a political career than were afforded by the feeble body of delegates which preceded it; and a penal clause, compelling members to attend its meetings, was hardly needed under the new circumstances which arose.

[Sidenote: Powers denied to the states.]

[Sidenote: Emphatic condemnation of paper money.]

While the powers of the federal government were thus carefully defined, at the same time several powers were expressly denied to the states. No state was allowed, without explicit authority from Congress, to lay any tonnage or custom-house duties, "keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delays." The following clause provided against a recurrence of some of the worst evils which had been felt under the "league of friendship:" "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, _ex post facto_ law, or law impairing the obligation of contracts; or grant any title of nobility." Henceforth there was to be no repetition of such disgraceful scenes as had lately been witnessed in Rhode Island. So far as the state legislatures were concerned, paper money was to be ruled out forever. But how was it with the federal government? By the articles of confederation the United States were allowed to issue bills of credit, and make them a tender in payment of debts. In the Federal Convention the committee of detail suggested that this permission might remain under the new constitution; but the suggestion was almost unanimously condemned. All the ablest men in the convention spoke emphatically against it. Gouverneur Morris urged that the federal government, no less than the state governments, should be expressly prohibited from issuing bills of credit, or in any wise making its promissory notes a legal tender. He went over the history of the past ten years; he called attention to the obstinacy with which the wretched device had been resorted to again and again, after its evils had been thrust before everybody's eyes; and he proved himself a true prophet when he said that if the United States should ever again have a great war to conduct, people would have forgotten all about these things, and would call for fresh issues of inconvertible paper, with similar disastrous results. Now was the time to stop it once for all. "Yes," echoed Roger Sherman, "this is the favourable crisis for crushing paper money." "This is the time," said his colleague, Ellsworth, "to shut and bar the door against paper money, which can in no case be necessary. Give the government credit, and other resources will offer. The power may do harm, never good." There was no way, he added, in which powerful friends could so soon be gained for the new constitution as by withholding this power from the government. James Wilson took the same view. "It will have the most salutary influence on the credit of the United States," said he, "to remove the possibility of paper money." "Rather than grant the power to Congress," said John Langdon, "I would reject the whole plan." "The words which grant this power," said George Read of Delaware, "if not struck out, will be as alarming as the mark of the Beast, in the Apocalypse." On none of the subjects that came up for discussion during that summer was the convention more nearly unanimous than in its condemnation of paper money. The only delegate who ventured to speak in its favour was Mercer of Maryland. What Hamilton would have said, if he had been present that day, we may judge from his vigorous words published some time before. The power to emit an inconvertible paper as a sign of value ought never hereafter to be used; for in its very nature, said he, it is "pregnant with abuses, and liable to be made the engine of imposition and fraud, holding out temptations equally pernicious to the integrity of government and to the morals of the people." Paterson called it "sanctifying iniquity by law." The same views were entertained by Washington and Madison. There were a few delegates, however, who thought it unsafe to fetter Congress absolutely. To use Luther Martin's expression, they did not set themselves up to be "wise beyond every event." George Mason said he "had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. The late war," he thought, "could not have been carried on had such a prohibition existed." Randolph spoke to the same effect. It was finally decided, by the vote of nine states against New Jersey and Maryland, that the power to issue inconvertible paper should not be granted to the federal government. An express prohibition, such as had been adopted for the separate states, was thought unnecessary. It was supposed that it was enough to withhold the power, since the federal government would not venture to exercise it unless expressly permitted in the Constitution. "Thus," says Madison, in his narrative of the proceedings, "the pretext for a paper currency, and particularly for making the bills a tender, either for public or private debts, was cut off." Nothing could be more clearly expressed than this. As Mr. Justice Field observes, in his able dissenting opinion in the recent case of Juilliard _vs._ Greenman, "if there be anything in the history of the Constitution which can be established with moral certainty, it is that the framers of that instrument intended to prohibit the issue of legal-tender notes both by the general government and by the states, and thus prevent interference with the contracts of private parties." Such has been the opinion of our ablest constitutional jurists, Marshall, Webster, Story, Curtis, and Nelson. There can be little doubt that, according to all sound principles of interpretation, the Legal Tender Act of 1862 was passed in flagrant violation of the Constitution. Could Ellsworth and Morris, Langdon and Madison, have foreseen the possibility of such extraordinary judgments as have lately emanated from the Supreme Court of the United States, they would doubtless have insisted upon the express prohibition, instead of leaving it to posterity to root out the plague, as it will apparently some time have to do, by the cumbrous process of an amendment to the Constitution.

The work of the convention, as thus far considered, related to the legislative department of the new government. While these discussions were going on, much attention had been paid, from time to time, to the characteristics of the proposed federal executive. The debates on this question, though long kept up, were far less acrimonious than the debates on representation and the power of Congress over trade, because here there was no obvious clashing of local interests. But for this very reason the convention had no longer so clear a chart to steer by. On the question of the slave-trade, the Pinckneys knew accurately just what South Carolina wanted, how much it would do to claim, and how far it would be necessary to yield. As to the regulation of commerce by a bare majority of votes in Congress, King and Sherman on the one hand, Mason and Randolph on the other, were able to pursue a thoroughly definite course of action in behalf of what were supposed to be the special interests of New England or of Virginia. Consequently, the debates kept close to the point; the controversy was keen, and sometimes, as we have seen, angry.

[Sidenote: Debates as to the federal executive.]

It was very different with the question as to the federal executive. Upon this point the discussions were guided rather by general speculations as to what would be most likely to work well, and accordingly they wandered far and wide. Some of the delegates seemed to think we should sooner or later come to adopt a hereditary monarchy, and that the chief thing to be done was to postpone the event as long as possible. Many wild ideas were broached: such, for example, as a triple-headed executive, to represent the eastern, middle, and southern states, somewhat as associated Roman emperors at times administered affairs in the different portions of an undivided empire. The Virginia plan had not stated whether its proposed executive was to be single or plural, because the Virginia delegates could not agree. Madison wished it to be single, to insure greater efficiency, but to Randolph and Mason a tyranny seemed to lurk in such an arrangement. When James Wilson and Charles Pinckney suggested that the executive power should be intrusted into the hands of one man, a profound silence fell upon the convention. No one spoke for several minutes, until Washington, from the chair, asked if he should put the question. Franklin then got up, and said it was an interesting subject, and he should like to hear what the members had to say; and so the ball was set rolling. Rutledge said there was no need of their being so shy. A man might frankly express his opinions, and afterwards change them if he saw good reason for so doing. For his part, he was in favour of vesting the executive power in a single person, to secure efficiency of administration and concentration of responsibility; but he would not give him the power to declare war and make peace. Sherman then made the far-reaching suggestion, that the executive magistracy was really "nothing more than an institution for carrying the will of the legislature into effect; that the person or persons ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society. As they were the best judges of the business which ought to be done by the executive department, ... he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more, as experience might dictate." It would greatly have astonished the convention had they been told that this suggestion of Sherman's was a move in the very same line of development which the British government had been following for more than half a century; yet such, as we shall presently see, was the case. Had this point been understood then as we understand it now, the proceedings of the convention could not have failed to be profoundly affected by it. As it was, the suggestion did not receive due attention, and the stream of discussion was turned into a very different channel. Wilson argued powerfully in favour of a single chief magistrate, and this view finally prevailed.

[Sidenote: There should be a president, but how should he be elected.]

After it had been decided that there should be one man set in so high a position, there was endless discussion as to whether he should be elected by the people or by Congress, and whether he should serve for one, or two, or three, or four, or ten, or fifteen years. "Better call it twenty," said Rufus King, sarcastically; "it is the average reign of princes." Hamilton and Gouverneur Morris would have had him chosen for life, subject to removal for misbehaviour; but the preference for a short term of service was soon manifest. As to the method of election, opinions oscillated back and forth for several weeks. Wilson said "he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say, however, at least, that in theory he was for an election by the people. Experience, particularly in New York and Massachusetts, showed that an election of the first magistrate by the people at large was both a convenient and a successful mode. The objects of choice in such cases must be persons whose merits have general notoriety." Mason, Rutledge, and Strong agreed with Sherman that the executive should be chosen by the legislature; but Washington, Madison, Gerry, and Gouverneur Morris strongly disapproved of this. Morris argued that an election by the national legislature would be the work of intrigue and corruption, like the election of the king of Poland by a diet of nobles; but Mason declared, on the other hand, that "to refer the choice of a proper character for a chief magistrate to the people would be as unnatural as to refer a trial of colours to a blind man." A decision was first reached against an election by Congress, because it was thought that if the chief magistrate should prove himself thoroughly competent he ought to be reëligible; but if reëligible he would be exposed to the temptation of truckling to the most powerful party or cabal in Congress, in order to secure his reëlection. It did not occur to any one to suggest that under ordinary circumstances the executive ought to follow the policy of the most powerful party in Congress, and that he might at the same time preserve all needful independence by being clothed with the power of dissolving Congress and making an appeal to the people in a new election. It is interesting to consider what might have come of such a suggestion, following upon the heels of that made by Roger Sherman. As we shall presently see, it would have immeasurably simplified the machinery of our government, besides making the executive what it ought to be, the arm of the legislature, instead of a separate and coördinate power. Upon this point the minds of nearly all the members were so far under the sway of an incorrect theory that such an idea occurred to none of them. It was decided that the chief magistrate ought to be reëligible, and therefore should not be elected by Congress.

[Sidenote: Suggestion of an electoral college.]

An immediate choice by the people, however, did not meet with general favour. To obviate the difficulty, Ellsworth and King suggested the device of an electoral college, in which the electors should be chosen by the state legislatures, and should hold a meeting at the federal city for the sole purpose of deciding upon a chief magistrate. It was then objected that it would be difficult to find competent men who would be willing to undertake a long journey simply for such a purpose. The objection was felt to be a very grave one, and so the convention returned to the plan of an election by Congress, and again confronted the difficulty of the chief magistrate's intriguing to secure his reëlection. Wilson thought to do away with this difficulty by introducing the element of blind chance, as in some of the states of ancient Greece, and choosing the executive by a board of electors taken from Congress by lot; but the suggestion found little support. Dickinson thought it would be well if the people of each state were to choose its best citizen,--in modern parlance, its "favourite son;" then out of these thirteen names a chief magistrate might be chosen, either by Congress or by a special board of electors. At length, on the 26th of July, at the motion of Mason, the convention resolved that there should be a national executive, to consist of a single person, to be chosen by the national legislature for the term of seven years, and to be ineligible for a second term. He was to be styled President of the United States of America.

This decision remained until the very end of August, when the whole question was reopened by a motion of Rutledge that the two houses of Congress, in electing the president, should proceed by "joint ballot." The object of this motion was to prevent either house from exerting a negative on the choice of the other. It was carried in spite of the opposition of some of the smaller states, which might hope to exercise a greater relative influence upon the choice of presidents, if the Senate were to vote separately. At this point the fears of Gouverneur Morris, that an election by Congress would result in boundless intrigue, were revived; and in a powerful speech he persuaded the convention to return to the device of the electoral college, which might be made equal in number and similar in composition to the two houses of Congress sitting together. It need not be required of the electors, after all, that they should make a long journey to the seat of the federal government. They might meet in their respective states, and vote by ballot for two persons, one of whom must be an inhabitant of a different state. By this provision it was hoped to diminish the chances for extreme sectional partiality. A list of these votes might be sent under seal to the presiding officer of the Senate, to be counted. Should no candidate turn out to have a majority of the votes, the Senate might choose a president from the five highest candidates on the list. The candidate having the next highest number of votes might be declared vice-president, and preserve the visible continuity of the government in case of the death of the president during his term of office. By these changes the method of electing the president, as finally decided upon, was nearly completed. But Mason, Randolph, Gerry, King, and Wilson were not satisfied with the provision that the Senate might choose the president in case of a failure of choice on the part of the electoral college: they preferred to give this power to the House of Representatives. It was thought that the Senate would be likely to prove an aristocratic body, somewhat removed from the people in its sympathies, and there was a dread of intrusting to it too many important functions. Mason thought that the sway of an aristocracy would be worse than an absolute monarchy; and if the Senate might every now and then elect the president, there would be a risk that the dignity of his office might degenerate, until he should become a mere creature of the Senate. On the other hand, the small states, in order to have an equal voice with the large ones, in such an emergency as the failure of choice by the electoral college, wished to keep the eventual choice in the hands of the Senate. Among the delegates from the small states, only Langdon and Dickinson at first supported the change, and only New Hampshire voted for it. At length Sherman proposed a compromise, which was carried. It was agreed that the eventual choice should be given to the House of Representatives, and not to the Senate, but that in exercising this function the vote in the House of Representatives should be taken by states. Thus the humours of the delegates from the small states, and of those who dreaded the accumulation of powers into the hands of an oligarchy, were alike gratified. This arrangement was finally adopted by the votes of ten states against Delaware.

But in spite of all the minute and anxious care that was taken in guarding this point, the contingency of an election being thus thrown into the hands of the national legislature was not regarded as likely often to occur. In point of fact, it has hitherto happened only twice in the century, in the elections of 1800 and of 1824. It was recognized that the work would ordinarily be done through the machinery of the electoral college, and that thus the fear of intrigue between the president and Congress, as it had originally been felt by the convention, might be set aside. To make assurance doubly sure, it was provided that "no person shall be appointed an elector who is a member of the legislature of the United States, or who holds any office of profit or trust under the United States." It then appeared that the arguments which had been alleged against the eligibility of the president for a second term had lost their force; and he was accordingly made reëligible, while his term of service was reduced from seven years to four.

[Sidenote: How to count the votes.]

The scheme had thus arrived substantially at its present shape, except that the counting of the electoral vote still remained in the hands of the Senate. On the 6th of September this provision was altered, and it was decided that "the president of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted." The object of this provision was to take the office of counting away from the Senate alone, and give it to Congress as a whole; and while doing so, to guard against the failure of an election through the disagreement of the two houses. The method of counting was not prescribed, for it was thought that it might safely be left to joint rules established by the two houses of Congress themselves, after analogies supplied by the experience of the several state legislatures. The case of double returns, sent in by rival governments in the same state, was not contemplated by the convention; and thus the door was left open for a danger considerably greater than many of those over which the delegates were agitated. It may safely be said, however, that not even the wildest license of interpretation can find any support for the ridiculous doctrine suggested by some persons blinded by political passion in 1877, that the business of counting the votes and deciding upon the validity of returns belongs to the president of the Senate. No such idea was for a moment entertained by the convention. Any such idea is completely negatived by their action of the 6th of September. The express purpose of the final arrangement made on that day was to admit the House of Representatives to active participation in the office of determining who should have been elected president. It was expressly declared that this work was too important to be left to the Senate alone. What, then, would the convention have said to the preposterous notion that this work might safely be left to the presiding officer of the Senate? The convention were keenly alive to any imaginable grant of authority that might enable the Senate to grow into an oligarchy. What would they have said to the proposal to create a monocrat _ad hoc_, an official permanently endowed by virtue of his office with the function of king-maker?

[Sidenote: The convention foresaw imaginary dangers, but not the real ones.]

In this connection it is worth our while to observe that in no respect has the actual working of the Constitution departed so far from the intentions of its framers as in the case of their provisions concerning the executive. Against a host of possible dangers they guarded most elaborately, but the dangers and inconveniences against which we have actually had to contend they did not foresee. It will be observed that Wilson's proposal for a direct election of the president by the people found little favour in the convention. The schemes that were seriously considered oscillated back and forth between an election by the national legislature and an election by a special college of electors. The electors might be chosen by a popular vote, or by the state legislatures, or in any such wise as each state might see fit to determine for itself. In point of fact, electors were chosen by the legislature in New Jersey till 1816; in Connecticut till 1820; in New York, Delaware, and Vermont, and with one exception in Georgia, till 1824; in South Carolina till 1868. Massachusetts adopted various plans, and did not finally settle down to an election by the people until 1828. Now there were several reasons why the Federal Convention was afraid to trust the choice of the president directly to the people. One was that very old objection, the fear of the machinations of demagogues, since people were supposed to be so easily fooled. As already observed, the democratic sentiment in the convention was such as we should now call weak. Another reason shows vividly how wide the world seemed in those days of slow coaches and mail-bags carried on horseback. It was feared that people would not have sufficient data wherewith to judge of the merits of public men in states remote from their own. The electors, as eminent men exceptionally well informed, and screened from the sophisms of demagogues, might hold little conventions and select the best possible candidates, using in every case their own unfettered judgment.

In this connection the words of Hamilton are worth quoting. In the sixty-eighth number of the "Federalist" he says: "The mode of appointment of the chief magistrate of the United States is almost the only part of the system which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these who has appeared in print has even deigned to admit that the election of the president is well guarded.... It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.... It was equally desirable that the immediate election should be made by men capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.... It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate who was to have so important an agency in the administration of the government."

[Sidenote: Actual working of the electoral scheme.]

Such was the theory as set forth by a thinker endowed with rare ability to follow out in imagination the results of any course of political action. It is needless to say that the actual working of the scheme has been very different from what was expected. In our very first great struggle of parties, in 1800, the electors divided upon party lines, with little heed to the "complicated investigation" for which they were supposed to be chosen. Quite naturally, for the work of electing a candidate presupposes a state of mind very different from that of serene deliberation. In 1800 the electors acted simply as automata recording the victory of their party, and so it has been ever since. In our own time presidents and vice-presidents are nominated, not without elaborate intrigue, by special conventions quite unknown to the Constitution; the people cast their votes for the two or three pairs of candidates thus presented, and the electoral college simply registers the results. The system is thus fully exposed to all the dangers which our forefathers dreaded from the frequent election of a chief magistrate by the people. Owing to the great good-sense and good-nature of the American people, the system does not work so badly as might be expected. It has, indeed, worked immeasurably better than any one would have ventured to predict. It is nevertheless open to grave objections. It compels a change of administration at stated astronomical periods, whether any change of policy is called for or not; it stirs up the whole country every fourth year with a furious excitement that is often largely factitious; and twice within the century, in 1801 and again in 1877, it has brought us to the verge of the most foolish and hopeless species of civil war, in view of that thoroughly monarchical kind of accident, a disputed succession.[8]

[Sidenote: The convention supposed itself to be copying from the British Constitution.]

The most curious and instructive point concerning the peculiar executive devised for the United States by the Federal Convention is the fact that the delegates proceeded upon a thoroughly false theory of what they were doing. As already observed, in this part of its discussions the convention had not the clearly outlined chart of local interests to steer by. It indulged in general speculations and looked about for precedents; and there was one precedent which American statesmen then always had before their eyes, whether they were distinctly aware of it or not. In creating an executive department, the members of the convention were really trying to copy the only constitution of which they had any direct experience, and which most of them agreed in thinking the most efficient working constitution in existence,--as indeed it was. They were trying to copy the British Constitution, modifying it to suit their republican ideas: but curiously enough, what they copied in creating the office of president was not the real English executive or prime minister, but the fictitious English executive, the sovereign. And this was associated in their minds with another profound misconception, which influenced all this part of their work. They thought that to keep the legislative and executive offices distinct and separate was the very palladium of liberty; and they all took it for granted, without a moment's question, that the British Constitution did this thing. England, they thought, is governed by King, Lords, and Commons, and the supreme power is nicely divided between the three, so that neither one can get the whole of it, and that is the safeguard of English liberty. So they arranged President, Senate, and Representatives to correspond, and sedulously sought to divide supreme power between the three, so that they might operate as checks upon each other. If either one should ever succeed in acquiring the whole sovereignty, then they thought there would be an end of American liberty.

[Sidenote: Influence of Montesquieu and Blackstone.]

Now in the earlier part of the work of the Federal Convention, in dealing with the legislative department, the delegates were on firm ground, because they were dealing with things of which they knew something by experience; but in all this careful separation of the executive power from the legislative they went wide of the mark, because they were following a theory which did not truly describe things as they really existed. And that was because the English Constitution was, and still is, covered up with a thick husk of legal fictions which long ago ceased to have any vitality. Blackstone, the great authority of the eighteenth century, set forth this theory of the division of power between King, Lords, and Commons with clearness and force, and nobody then understood English history minutely or thoroughly enough to see its fallaciousness. Montesquieu also, the ablest and most elegant political writer of the age, with whose works most of the statesmen in the Federal Convention were familiar, gave a similar description of the English Constitution, and generalized from it as the ideal constitution for a free people. But Montesquieu and Blackstone, in their treatment of this point, had their eyes upon the legal fictions, and were blind to the real machinery which was working under them. They gave elegant expression to what the late Mr. Bagehot called the "literary theory" of the English Constitution. But the real thing differed essentially from the "literary theory" even in their day. In our own time the divergence has become so conspicuous that it would not now be possible for well-informed writers to make the mistake of Montesquieu and Blackstone. In our time it has come to be perfectly obvious that so far from the English Constitution separating the executive power from the legislative, this is precisely what it does not do. In Great Britain the supreme power is all lodged in a single body, the House of Commons. The sovereign has come to be purely a legal fiction, and the House of Lords maintains itself only by submitting to the Commons. The House of Commons is absolutely supreme, and, as we shall presently see, it really both appoints and dismisses the executive. The English executive, or chief magistrate, is ordinarily the first lord of the treasury, and is commonly styled the prime minister. He is chairman of the most important committee of the House of Commons, and his cabinet consists of the chairmen of other committees.

[Sidenote: What our government would be if it were really like that of Great Britain.]

To make this perfectly clear, let us see what our machinery of government would be, if it were really like the English. The presence or absence of the crowned head makes no essential difference; it is only a kind of ornamental cupola. Suppose for a moment the presidency abolished, or reduced to the political nullity of the crown in England; and postpone for a moment the consideration of the Senate. Suppose that in our House of Representatives the committee of ways and means had two chairmen,--an upper chairman who looks after all sorts of business, and a lower chairman who attends especially to the finances. This upper chairman, we will say, corresponds to the first lord of the treasury, while the lower one corresponds to the chancellor of the exchequer. Sometimes, when the upper chairman is a great financier, and capable of enormous labour, he will fill both places at once, as Mr. Gladstone was lately first lord of the treasury and chancellor of the exchequer. The chairmen of the other committees on foreign, military, and naval affairs will answer to the English secretaries of state for foreign affairs and for war, the first lord of the admiralty, and so on. This group of chairmen, headed by the upper chairman of the ways and means, will then answer to the English cabinet, with its prime minister. To complete the parallel, let us suppose that, after a new House of Representatives is elected, it chooses this prime minister, and he appoints the other chairmen who are to make up his cabinet. Suppose, too, that he initiates all legislation, and executes all laws, and stays in office three weeks or thirty years, or as long as he can get a majority of the house to vote for his measures. If he loses his majority, he can either resign or dissolve the house, and order a new election, thus appealing directly to the people. If the new house gives him a majority, he stays in office; if it shows a majority against him, he steps down into the house, and becomes, perhaps, the leader of the opposition.

Now if this were the form of our government, it would correspond in all essential features to that of England. The likeness is liable to be obscured by the fact that in England it is the queen who is supposed to appoint the prime minister; but that is simply a part of the antiquated "literary theory" of the English Constitution. In reality the queen only acts as mistress of the ceremonies. Whatever she may wish, the prime minister must be the man who can command the best working majority in the house. This is not only tested by the first vote that is taken, but it is almost invariably known beforehand so well that if the queen offers the place to the wrong man he refuses to take it. Should he be so foolish as to take it, he is sure to be overthrown at the first test vote, and then the right man comes in. Thus in 1880 the queen's manifest preference for Lord Granville or Lord Hartington made no sort of difference. Mr. Gladstone was as much chosen by the House of Commons as if the members had sat in their seats and balloted for him. If the crown were to be abolished to-morrow, and the house were henceforth, on the resignation of a prime minister, to elect a new one to serve as long as he could command a majority, it would not be doing essentially otherwise than it does now. The house then dismisses its minister when it rejects one of his important measures. But while thus appointed and dismissed by the house, he is in no wise its slave; for by the power of dissolution he has the right to appeal to the country, and let the general election decide the issue. The obvious advantages of this system are that it makes anything like a deadlock between the legislature and the executive impossible; and it insures a concentration of responsibility. The prime minister's bills cannot be disregarded, like the president's messages; and thus, too, the house is kept in hand, and cannot degenerate into a debating club.[9]

[Sidenote: In the British government, the executive department is not separated from the legislative.]

A system so delicate and subtle, yet so strong and efficient, as this could no more have been invented by the wisest of statesmen than a chemist could make albumen by taking its elements and mixing them together. In its practical working it is a much simpler system than ours, and still its principal features are not such as would be likely to occur to men who had not had some actual experience of them. It is the peculiar outgrowth of English history. As we can now see, its chief characteristic is its not separating the executive power from the legislative. As a member of Parliament, the prime minister introduces the legislation which he is himself expected to carry into effect. Nor does the English system even keep the judiciary entirely separate, for the lord chancellor not only presides over the House of Lords, but sits in the cabinet as the prime minister's legal adviser. It is somewhat as if the chief justice of the United States were _ex officio_ president of the Senate and attorney-general; though here the resemblance is somewhat superficial. Our Senate, although it does not represent landed aristocracy or the church, but the federal character of our government, has still a superficial resemblance to the House of Lords. It passes on all bills that come up from the lower house, and can originate bills on most matters, but not for raising revenue. Its function as a high court of impeachment, with the chief justice for its presiding officer, was directly copied from the House of Lords. But here the resemblance ends. The House of Lords has no such veto upon the House of Commons as our Senate has upon the House of Representatives. Between our upper and lower houses a serious deadlock is possible; but the House of Lords can only reject a bill until it sees that the House of Commons is determined to have it carried. It can only enter a protest. If it is obstinate and tries to do more, the House of Commons, through its prime minister, can create enough new peers to change the vote,--a power so formidable in its effects upon the social position of the peerage that it does not need to be used. The knowledge that it exists is enough to bring the House of Lords to terms.

[Sidenote: Circumstances which obscured the true aspect of the case a century ago.]