CHAPTER VI

THE FEDERAL CONVENTION

The body of delegates which met in Philadelphia in 1787 was the most important convention that ever sat in the United States. The Confederation was a failure, and if the new nation was to be justified in the eyes of the world, it must show itself capable of effective union. The members of the Convention realized the significance of the task before them, which was, as Madison said, “now to decide forever the fate of Republican government.” Gouverneur Morris, with unwonted seriousness, declared: “The whole human race will be affected by the proceedings of this Convention.” James Wilson spoke with equal gravity: “After the lapse of six thousand years since the creation of the world America now presents the first instance of a people assembled to weigh deliberately and calmly and to decide leisurely and peaceably upon the form of government by which they will bind themselves and their posterity.”

Not all the men to whom this undertaking was entrusted, and who were taking themselves and their work so seriously, could pretend to social distinction, but practically all belonged to the upper ruling class. At the Indian Queen, a tavern on Fourth Street between Market and Chestnut, some of the delegates had a hall in which they lived by themselves. The meetings of the Convention were held in an upper room of the State House. The sessions were secret; sentries were placed at the door to keep away all intruders; and the pavement of the street in front of the building was covered with loose earth so that the noises of passing traffic should not disturb this august assembly. It is not surprising that a tradition grew up about the Federal Convention which hedged it round with a sort of awe and reverence. Even Thomas Jefferson referred to it as “an assembly of demigods.” If we can get away from the glamour which has been spread over the work of the Fathers of the Constitution and understand that they were human beings, even as we are, and influenced by the same motives as other men, it may be possible to obtain a more faithful impression of what actually took place.

Since representation in the Convention was to be by States, just as it had been in the Continental Congress, the presence of delegations from a majority of the States was necessary for organization. It is a commentary upon the times, upon the difficulties of travel, and upon the leisurely habits of the people, that the meeting which had been called for the 14th of May could not begin its work for over ten days. The 25th of May was stormy, and only twenty-nine delegates were on hand when the Convention organized. The slender attendance can only partially be attributed to the weather, for in the following three months and a half of the Convention, at which fifty-five members were present at one time or another, the average attendance was only slightly larger than that of the first day. In such a small body personality counted for much, in ways that the historian can only surmise. Many compromises of conflicting interests were reached by informal discussion outside of the formal sessions. In these small gatherings individual character was often as decisive as weighty argument.

George Washington was unanimously chosen as the presiding officer of the Convention. He sat on a raised platform; in a large, carved, high-backed chair, from which his commanding figure and dignified bearing exerted a potent influence on the assembly, an influence enhanced by the formal courtesy and stately intercourse of the times. Washington was the great man of his day and the members not only respected and admired him; some of them were actually afraid of him. When he rose to his feet he was almost the Commander-in-Chief again. There is evidence to show that his support or disapproval was at times a decisive factor in the deliberations of the Convention.

Virginia, which had taken a conspicuous part in the calling of the Convention, was looked to for leadership in the work that was to be done. James Madison, next to Washington the most important member of the Virginia delegation, was the very opposite of Washington in many respects—small and slight in stature, inconspicuous in dress as in figure, modest and retiring, but with a quick, active mind and wide knowledge obtained both from experience in public affairs and from extensive reading. Washington was the man of action; Madison, the scholar in politics. Madison was the younger by nearly twenty years, but Washington admired him greatly and gave him the support of his influence—a matter of no little consequence, for Madison was the leading expert worker of the Convention in the business of framing the Constitution. Governor Edmund Randolph, with his tall figure, handsome face, and dignified manner, made an excellent impression in the position accorded to him of nominal leader of the Virginia delegation. Among others from the same State who should be noticed were the famous lawyers, George Wythe and George Mason.

Among the deputies from Pennsylvania the foremost was James Wilson, the “Caledonian,” who probably stood next in importance in the convention to Madison and Washington. He had come to America as a young man just when the troubles with England were beginning and by sheer ability had attained a position of prominence. Several times a member of Congress, a signer of the Declaration of Independence, he was now regarded as one of the ablest lawyers in the United States. A more brilliant member of the Pennsylvania delegation, and one of the most brilliant of the Convention, was Gouverneur Morris, who shone by his cleverness and quick wit as well as by his wonderful command of language. But Morris was admired more than he was trusted; and, while he supported the efforts for a strong government, his support was not always as great a help as might have been expected. A crippled arm and a wooden leg might detract from his personal appearance, but they could not subdue his spirit and audacity. ¹

Other noteworthy members of the Convention, though hardly in the first class, were the handsome and charming Rufus King of Massachusetts, one of the coming men of the country, and Nathaniel Gorham of the same State, who was President of Congress—a man of good sense rather than of great ability, but one whose reputation was high and whose presence was a distinct asset to the Convention. Then, too, there were the delegates from South Carolina: John Rutledge, the orator, General Charles Cotesworth Pinckney of Revolutionary fame, and his cousin, Charles Pinckney. The last named took a conspicuous part in the proceedings in Philadelphia but, so far as the outcome was concerned, left his mark on the Constitution mainly in minor matters and details.

The men who have been named were nearly all supporters of the plan for a centralized government. On the other side were William Paterson of New Jersey, who had been Attorney-General of his State for eleven years and who was respected for his knowledge and ability; John Dickinson of Delaware, the author of the Farmer’s Letters and chairman of the committee of Congress that had framed the Articles of Confederation—able, scholarly, and sincere, but nervous, sensitive, and conscientious to the verge of timidity—whose refusal to sign the Declaration of Independence had cost him his popularity, though he was afterward returned to Congress and became president successively of Delaware and of Pennsylvania; Elbridge Gerry of Massachusetts, a successful merchant, prominent in politics, and greatly interested in questions of commerce and finance; and the Connecticut delegates, forming an unusual trio, Dr. William Samuel Johnson, Roger Sherman, and Oliver Ellsworth. These men were fearful of establishing too strong a government and were at one time or another to be found in opposition to Madison and his supporters. They were not mere obstructionists, however, and while not constructive in the same way that Madison and Wilson were, they must be given some credit for the form which the Constitution finally assumed. Their greatest service was in restraining the tendency of the majority to overrule the rights of States and in modifying the desires of individuals for a government that would have been too strong to work well in practice.

Alexander Hamilton of New York, as one of the ablest members of the Convention, was expected to take an important part, but he was out of touch with the views of the majority. He was aristocratic rather than democratic and, however excellent his ideas may have been, they were too radical for his fellow delegates and found but little support. He threw his strength in favor of a strong government and was ready to aid the movement in whatever way he could. But within his own delegation he was outvoted by Robert Yates and John Lansing, and before the sessions were half over he was deprived of a vote by the withdrawal of his colleagues. Thereupon, finding himself of little service, he went to New York and returned to Philadelphia only once or twice for a few days at a time, and finally to sign the completed document. Luther Martin of Maryland was an able lawyer and the Attorney-General of his State; but he was supposed to be allied with undesirable interests, and it was said that he had been sent to the Convention for the purpose of opposing a strong government. He proved to be a tiresome speaker and his prosiness, when added to the suspicion attaching to his motives, cost him much of the influence which he might otherwise have had.

All in all, the delegates to the Federal Convention were a remarkable body of men. Most of them had played important parts in the drama of the Revolution; three-fourths of them had served in Congress, and practically all were persons of note in their respective States and had held important public positions. They may not have been the “assembly of demigods” which Jefferson called them, for another contemporary insisted “that twenty assemblies of equal number might be collected equally respectable both in point of ability, integrity, and patriotism.” Perhaps it would be safer to regard the Convention as a fairly representative body, which was of a somewhat higher order than would be gathered together today, because the social conditions of those days tended to bring forward men of a better class, and because the seriousness of the crisis had called out leaders of the highest type.

Two or three days were consumed in organizing the Convention—electing officers, considering the delegates’ credentials, and adopting rules of procedure; and when these necessary preliminaries had been accomplished the main business was opened with the presentation by the Virginia delegation of a series of resolutions providing for radical changes in the machinery of the Confederation. The principal features were the organization of a legislature of two houses proportional to population and with increased powers, the establishment of a separate executive, and the creation of an independent judiciary. This was in reality providing for a new government and was probably quite beyond the ideas of most of the members of the Convention, who had come there under instructions and with the expectation of revising the Articles of Confederation. But after the Virginia Plan had been the subject of discussion for two weeks so that the members had become a little more accustomed to its proposals, and after minor modifications had been made in the wording of the resolutions, the Convention was won over to its support. To check this drift toward radical change the opposition headed by New Jersey and Connecticut presented the so-called New Jersey Plan, which was in sharp contrast to the Virginia Resolutions, for it contemplated only a revision of the Articles of Confederation, but after a relatively short discussion, the Virginia Plan was adopted by a vote of seven States against four, with one State divided.

The dividing line between the two parties or groups in the Convention had quickly manifested itself. It proved to be the same line that had divided the Congress of the Confederation, the cleavage between the large States and the small States. The large States were in favor of representation in both houses of the legislature according to population, while the small States were opposed to any change which would deprive them of their equal vote in Congress, and though outvoted, they were not ready to yield. The Virginia Plan, and subsequently the New Jersey Plan, had first been considered in committee of the whole, and the question of “proportional representation,” as it was then called, would accordingly come up again in formal session. Several weeks had been occupied by the proceedings, so that it was now near the end of June, and in general the discussions had been conducted with remarkably good temper. But it was evidently the calm before the storm. And the issue was finally joined when the question of representation in the two houses again came before the Convention. The majority of the States on the 29th of June once more voted in favor of proportional representation in the lower house. But on the question of the upper house, owing to a peculiar combination of circumstances—the absence of one delegate and another’s change of vote causing the position of their respective States to be reversed or nullified—the vote on the 2d of July resulted in a tie. This brought the proceedings of the Convention to a standstill. A committee of one member from each State was appointed to consider the question, and, “that time might be given to the Committee, and to such as chose to attend to the celebration on the anniversary of Independence, the Convention adjourned” over the Fourth. The committee was chosen by ballot, and its composition was a clear indication that the small-State men had won their fight, and that a compromise would be effected.

It was during the debate upon this subject, when feeling was running high and when at times it seemed as if the Convention in default of any satisfactory solution would permanently adjourn, that Franklin proposed that “prayers imploring the assistance of Heaven … be held in this Assembly every morning.” Tradition relates that Hamilton opposed the motion. The members were evidently afraid of the impression which would be created outside, if it were suspected that there were dissensions in the Convention, and the motion was not put to a vote.

How far physical conditions may influence men in adopting any particular course of action it is impossible to say. But just when the discussion in the Convention reached a critical stage, just when the compromise presented by the committee was ready for adoption or rejection, the weather turned from unpleasantly hot to being comfortably cool. And, after some little time spent in the consideration of details, on the 16th of July, the great compromise of the Constitution was adopted. There was no other that compared with it in importance. Its most significant features were that in the upper house each State should have an equal vote and that in the lower house representation should be apportioned on the basis of population, while direct taxation should follow the same proportion. The further proviso that money bills should originate in the lower house and should not be amended in the upper house was regarded by some delegates as of considerable importance, though others did not think so, and eventually the restriction upon amendment by the upper house was dropped.

There has long been a prevailing belief that an essential feature of the great compromise was the counting of only three-fifths of the slaves in enumerating the population. This impression is quite erroneous. It was one of the details of the compromise, but it had been a feature of the revenue amendment of 1783, and it was generally accepted as a happy solution of the difficulty that slaves possessed the attributes both of persons and of property. It had been included both in the amended Virginia Plan and in the New Jersey Plan; and when it was embodied in the compromise it was described as “the ratio recommended by Congress in their resolutions of April 18, 1783.” A few months later, in explaining the matter to the Massachusetts convention, Rufus King said that, “This rule … was adopted because it was the language of all America.” In reality the three-fifths rule was a mere incident in that part of the great compromise which declared that “representation should be proportioned according to direct taxation.” As a further indication of the attitude of the Convention upon this point, an amendment to have the blacks counted equally with the whites was voted down by eight States against two.

With the adoption of the great compromise a marked difference was noticeable in the attitude of the delegates. Those from the large States were deeply disappointed at the result and they asked for an adjournment to give them time to consider what they should do. The next morning, before the Convention met, they held a meeting to determine upon their course of action. They were apparently afraid of taking the responsibility for breaking up the Convention, so they finally decided to let the proceedings go on and to see what might be the ultimate outcome. Rumors of these dissensions had reached the ears of the public, and it may have been to quiet any misgivings that the following inspired item appeared in several local papers: “So great is the unanimity, we hear, that prevails in the Convention, upon all great federal subjects, that it has been proposed to call the room in which they assemble Unanimity Hall.”

On the other hand the effect of this great compromise upon the delegates from the small States was distinctly favorable. Having obtained equal representation in one branch of the legislature, they now proceeded with much greater willingness to consider the strengthening of the central government. Many details were yet to be arranged, and sharp differences of opinion existed in connection with the executive as well as with the judiciary. But these difficulties were slight in comparison with those which they had already surmounted in the matter of representation. By the end of July the fifteen resolutions of the original Virginia Plan had been increased to twenty-three, with many enlargements and amendments, and the Convention had gone as far as it could effectively in determining the general principles upon which the government should be formed. There were too many members to work efficiently when it came to the actual framing of a constitution with all the inevitable details that were necessary in setting up a machinery of government. Accordingly this task was turned over to a committee of five members who had already given evidence of their ability in this direction. Rutledge was made the chairman, and the others were Randolph, Gorham, Ellsworth, and Wilson. To give them time to perfect their work, on the 26th of July the Convention adjourned for ten days.

CHAPTER VII

FINISHING THE WORK

Rutledge and his associates on the committee of detail accomplished so much in such a short time that it seems as if they must have worked day and night. Their efforts marked a distinct stage in the development of the Constitution. The committee left no records, but some of the members retained among their private papers drafts of the different stages of the report they were framing, and we are therefore able to surmise the way in which the committee proceeded. Of course the members were bound by the resolutions which had been adopted by the Convention and they held themselves closely to the general principles that had been laid down. But in the elaboration of details they seem to have begun with the Articles of Confederation and to have used all of that document that was consistent with the new plan of government. Then they made use of the New Jersey Plan, which had been put forward by the smaller States, and of a third plan which had been presented by Charles Pinckney; for the rest they drew largely upon the State Constitutions. By a combination of these different sources the committee prepared a document bearing a close resemblance to the present Constitution, although subjects were in a different order and in somewhat different proportions, which, at the end of ten days, by working on Sunday, they were able to present to the Convention. This draft of a constitution was printed on seven folio pages with wide margins for notes and emendations.

The Convention resumed its sessions on Monday, the 6th of August, and for five weeks the report of the committee of detail was the subject of discussion. For five hours each day, and sometimes for six hours, the delegates kept persistently at their task. It was midsummer, and we read in the diary of one of the members that in all that period only five days were “cool.” Item by item, line by line, the printed draft of the Constitution was considered. It is not possible, nor is it necessary, to follow that work minutely; much of it was purely formal, and yet any one who has had experience with committee reports knows how much importance attaches to matters of phrasing. Just as the Virginia Plan was made more acceptable to the majority by changes in wording that seem to us insignificant, so modifications in phrasing slowly won support for the draft of the Constitution.

The adoption of the great compromise, as we have seen, changed the whole spirit of the Convention. There was now an expectation on the part of the members that something definite was going to be accomplished, and all were concerned in making the result as good and as acceptable as possible. In other words, the spirit of compromise pervaded every action, and it is essential to remember this in considering what was accomplished.

One of the greatest weaknesses of the Confederation was the inefficiency of Congress. More than four pages, or three-fifths of the whole printed draft, were devoted to Congress and its powers. It is more significant, however, that in the new Constitution the legislative powers of the Confederation were transferred bodily to the Congress of the United States, and that the powers added were few in number, although of course of the first importance. The Virginia Plan declared that, in addition to the powers under the Confederation, Congress should have the right “to legislate in all cases to which the separate States are incompetent.” This statement was elaborated in the printed draft which granted specific powers of taxation, of regulating commerce, of establishing a uniform rule of naturalization, and at the end of the enumeration of powers two clauses were added giving to Congress authority:

To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;

And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers.

On the other hand, it was necessary to place some limitations upon the power of Congress. A general restriction was laid by giving to the executive a right of veto, which might be overruled, however, by a two-thirds vote of both houses. Following British tradition—yielding as it were to an inherited fear—these delegates in America were led to place the first restraint upon the exercise of congressional authority in connection with treason. The legislature of the United States was given the power to declare the punishment of treason; but treason itself was defined in the Constitution, and it was further asserted that a person could be convicted of treason only on the testimony of two witnesses, and that attainder of treason should not “work corruption of blood nor forfeiture except during the life of the person attainted.” Arising more nearly out of their own experience was the prohibition of export taxes, of capitation taxes, and of the granting of titles of nobility.

While the committee of detail was preparing its report, the Southern members of that committee had succeeded in getting a provision inserted that navigation acts could be passed only by a two-thirds vote of both houses of the legislature. New England and the Middle States were strongly in favor of navigation acts for, if they could require all American products to be carried in American-built and American-owned vessels, they would give a great stimulus to the ship-building and commerce of the United States. They therefore wished to give Congress power in this matter on exactly the same terms that other powers were granted. The South, however, was opposed to this policy, for it wanted to encourage the cheapest method of shipping its raw materials. The South also wanted a larger number of slaves to meet its labor demands. To this need New England was not favorably disposed. To reconcile the conflicting interests of the two sections a compromise was finally reached. The requirement of a two-thirds vote of both houses for the passing of navigation acts which the Southern members had obtained was abandoned, and on the other hand it was determined that Congress should not be allowed to interfere with the importation of slaves for twenty years. This, again, was one of the important and conspicuous compromises of the Constitution. It is liable, however, to be misunderstood, for one should not read into the sentiment of the members of the Convention any of the later strong prejudice against slavery. There were some who objected on moral grounds to the recognition of slavery in the Constitution, and that word was carefully avoided by referring to “such Persons as any States now existing shall think proper to admit.” And there were some who were especially opposed to the encouragement of that institution by permitting the slave trade, but the majority of the delegates regarded slavery as an accepted institution, as a part of the established order, and public sentiment on the slave trade was not much more emphatic and positive than it is now on cruelty to animals. As Ellsworth said, “The morality or wisdom of slavery are considerations belonging to the States themselves,” and the compromise was nothing more or less than a bargain between the sections.

The fundamental weakness of the Confederation was the inability of the Government to enforce its decrees, and in spite of the increased powers of Congress, even including the use of the militia “to execute the laws of the Union,” it was not felt that this defect had been entirely remedied. Experience under the Confederation had taught men that something more was necessary in the direction of restricting the States in matters which might interfere with the working of the central Government. As in the case of the powers of Congress, the Articles of Confederation were again resorted to and the restrictions which had been placed upon the States in that document were now embodied in the Constitution with modifications and additions. But the final touch was given in connection with the judiciary.

There was little in the printed draft and there is comparatively little in the Constitution on the subject of the judiciary. A Federal Supreme Court was provided for, and Congress was permitted, but not required, to establish inferior courts; while the jurisdiction of these tribunals was determined upon the general principles that it should extend to cases arising under the Constitution and laws of the United States, to treaties and cases in which foreigners and foreign countries were involved, and to controversies between States and citizens of different States. Nowhere in the document itself is there any word as to that great power which has been exercised by the Federal courts of declaring null and void laws or parts of laws that are regarded as in contravention to the Constitution. There is little doubt that the more important men in the Convention, such as Wilson, Madison, Gouverneur Morris, King, Gerry, Mason, and Luther Martin, believed that the judiciary would exercise this power, even though it should not be specifically granted. The nearest approach to a declaration of this power is to be found in a paragraph that was inserted toward the end of the Constitution. Oddly enough, this was a modification of a clause introduced by Luther Martin with quite another intent. As adopted it reads: “That this Constitution and the Laws of the United States … and all Treaties … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This paragraph may well be regarded as the keystone of the constitutional arch of national power. Its significance lies in the fact that the Constitution is regarded not as a treaty nor as an agreement between States, but as a law; and while its enforcement is backed by armed power, it is a law enforceable in the courts.

One whole division of the Constitution has been as yet barely referred to, and it not only presented one of the most perplexing problems which the Convention faced but one of the last to be settled—that providing for an executive. There was a general agreement in the Convention that there should be a separate executive. The opinion also developed quite early that a single executive was better than a plural body, but that was as far as the members could go with any degree of unanimity. At the outset they seemed to have thought that the executive would be dependent upon the legislature, appointed by that body, and therefore more or less subject to its control. But in the course of the proceedings the tendency was to grant greater and greater powers to the executive; in other words, he was becoming a figure of importance. No such office as that of President of the United States was then in existence. It was a new position which they were creating. We have become so accustomed to it that it is difficult for us to hark back to the time when there was no such officer and to realize the difficulties and the fears of the men who were responsible for creating that office.

The presidency was obviously modeled after the governorship of the individual States, and yet the incumbent was to be at the head of the Thirteen States. Rufus King is frequently quoted to the effect that the men of that time had been accustomed to considering themselves subjects of the British king. Even at the time of the Convention there is good evidence to show that some of the members were still agitating the desirability of establishing a monarchy in the United States. It was a common rumor that a son of George III was to be invited to come over, and there is reason to believe that only a few months before the Convention met Prince Henry of Prussia was approached by prominent people in this country to see if he could be induced to accept the headship of the States, that is, to become the king of the United States. The members of the Convention evidently thought that they were establishing something like a monarchy. As Randolph said, the people would see “the form at least of a little monarch,” and they did not want him to have despotic powers. When the sessions were over, a lady asked Franklin: “Well, Doctor, what have we got, a republic or a monarchy?” “A republic,” replied the doctor, “if you can keep it.”

The increase of powers accruing to the executive office necessitated placing a corresponding check upon the exercise of those powers. The obvious method was to render the executive subject to impeachment, and it was also readily agreed that his veto might be overruled by a two-thirds vote of Congress; but some further safeguards were necessary, and the whole question accordingly turned upon the method of his election and the length of his term. In the course of the proceedings of the Convention, at several different times, the members voted in favor of an appointment by the national legislature, but they also voted against it. Once they voted for a system of electors chosen by the State legislatures and twice they voted against such a system. Three times they voted to reconsider the whole question. It is no wonder that Gerry should say: “We seem to be entirely at a loss.”

So it came to the end of August, with most of the other matters disposed of and with the patience of the delegates worn out by the long strain of four weeks’ close application. During the discussions it had become apparent to every one that an election of the President by the people would give a decided advantage to the large States, so that again there was arising the divergence between the large and small States. In order to hasten matters to a conclusion, this and all other vexing details upon which the Convention could not agree were turned over to a committee made up of a member from each State. It was this committee which pointed the way to a compromise by which the choice of the executive was to be entrusted to electors chosen in each State as its legislature might direct. The electors were to be equal in number to the State’s representation in Congress, including both senators and representatives, and in each State they were to meet and to vote for two persons, one of whom should not be an inhabitant of that State. The votes were to be listed and sent to Congress, and the person who had received the greatest number of votes was to be President, provided such a number was a majority of all the electors. In case of a tie the Senate was to choose between the candidates and, if no one had a majority, the Senate was to elect “from the five highest on the list.”

This method of voting would have given the large States a decided advantage, of course, in that they would appoint the greater number of electors, but it was not believed that this system would ordinarily result in a majority of votes being cast for one man. Apparently no one anticipated the formation of political parties which would concentrate the votes upon one or another candidate. It was rather expected that in the great majority of cases—“nineteen times in twenty,” one of the delegates said—there would be several candidates and that the selection from those candidates would fall to the Senate, in which all the States were equally represented and the small States were in the majority. But since the Senate shared so many powers with the executive, it seemed better to transfer the right of “eventual election” to the House of Representatives, where each State was still to have but one vote. Had this scheme worked as the designers expected, the interests of large States and small States would have been reconciled, since in effect the large States would name the candidates and, “nineteen times in twenty,” the small States would choose from among them.

Apparently the question of a third term was never considered by the delegates in the Convention. The chief problem before them was the method of election. If the President was to be chosen by the legislature, he should not be eligible to reëlection. On the other hand, if there was to be some form of popular election, an opportunity for reëlection was thought to be a desirable incentive to good behavior. Six or seven years was taken as an acceptable length for a single term and four years a convenient tenure if reëlection was permitted. It was upon these considerations that the term of four years was eventually agreed upon, with no restriction placed upon reëlection.

When it was believed that a satisfactory method of choosing the President had been discovered—and it is interesting to notice the members of the Convention later congratulated themselves that at least this feature of their government was above criticism—it was decided to give still further powers to the President, such as the making of treaties and the appointing of ambassadors and judges, although the advice and consent of the Senate was required, and in the case of treaties two-thirds of the members present must consent.

The presidency was frankly an experiment, the success of which would depend largely upon the first election; yet no one seems to have been anxious about the first choice of chief magistrate, and the reason is not far to seek. From the moment the members agreed that there should be a single executive they also agreed upon the man for the position. Just as Washington had been chosen unanimously to preside over the Convention, so it was generally accepted that he would be the first head of the new state. Such at least was the trend of conversation and even of debate on the floor of the Convention. It indicates something of the conception of the office prevailing at the time that Washington, when he became President, is said to have preferred the title, “His High Mightiness, the President of the United States and Protector of their Liberties.”

The members of the Convention were plainly growing tired and there are evidences of haste in the work of the last few days. There was a tendency to ride rough-shod over those whose temperaments forced them to demand modifications in petty matters. This precipitancy gave rise to considerable dissatisfaction and led several delegates to declare that they would not sign the completed document. But on the whole the sentiment of the Convention was overwhelmingly favorable. Accordingly on Saturday, the 8th of September, a new committee was appointed, to consist of five members, whose duty it was “to revise the stile of and arrange the articles which had been agreed to by the House.” The committee was chosen by ballot and was made up exclusively of friends of the new Constitution: Doctor Johnson of Connecticut, Alexander Hamilton, who had returned to Philadelphia to help in finishing the work, Gouverneur Morris, James Madison, and Rufus King. On Wednesday the twelfth, the Committee made its report, the greatest credit for which is probably to be given to Morris, whose powers of expression were so greatly admired. Another day was spent in waiting for the report to be printed. But on Thursday this was ready, and three days were devoted to going over carefully each article and section and giving the finishing touches. By Saturday the work of the Convention was brought to a close, and the Constitution was then ordered to be engrossed. On Monday, the 17th of September, the Convention met for the last time. A few of those present being unwilling to sign, Gouverneur Morris again cleverly devised a form which would make the action appear to be unanimous: “Done in Convention by the unanimous consent of the states present … in witness whereof we have hereunto subscribed our names.” Thirty-nine delegates, representing twelve States, then signed the Constitution.

When Charles Biddle of Philadelphia, who was acquainted with most of the members of the Convention, wrote his Autobiography, which was published in 1802, he declared that for his part he considered the government established by the Constitution to be “the best in the world, and as perfect as any human form of government can be.” But he prefaced that declaration with a statement that some of the best informed members of the Federal Convention had told him “they did not believe a single member was perfectly satisfied with the Constitution, but they believed it was the best they could ever agree upon, and that it was infinitely better to have such a one than break up without fixing on some form of government, which I believe at one time it was expected they would have done.”

One of the outstanding characteristics of the members of the Federal Convention was their practical sagacity. They had a very definite object before them. No matter how much the members might talk about democracy in theory or about ancient confederacies, when it came to action they did not go outside of their own experience. The Constitution was devised to correct well-known defects and it contained few provisions which had not been tested by practical political experience. Before the Convention met, some of the leading men in the country had prepared lists of the defects which existed in the Articles of Confederation, and in the Constitution practically every one of these defects was corrected and by means which had already been tested in the States and under the Articles of Confederation.