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pose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein as shall, when agreed to in congress and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the Union.” All of the legislatures, with the exception of that of Rhode Island, responded to this call by naming delegates. The convention met at Philadelphia, May 14. It was the 25th of May before a sufficient number of states (seven) were represented to complete the formal organization of the convention by the choice of Washington as presiding officer, and to begin work. Meanwhile, the time had not been suffered to slip by unused. The delegates from Virginia, whose official head was Edmund Randolph, but whose brain was James Madison, had agreed among themselves that a simple modification of the articles of confederation would not do, but that, as Washington had written to Madison on the 31st of March, it was their duty “ to probe the defects of the constitution to the bottom and provide a radical cure.” The main points as to the way in which this was to happen had been reduced to writing, and they were laid before the convention by Randolph, in order to give a firm basis for its deliberations. This was of great importance, for Virginia was the strongest and most influential state of the Union. The tardiness of the delegates of most of the states (Rhode Island never sent delegates to the convention) was not adapted to strengthen the hopes of the patriots. The instructions given by Delaware to her delegates, to insist upon it that, as heretofore, every state should have an equal voice in the Union, of necessity strengthened the fear that now again no result would be reached. Nevertheless, the convention adopted Washington's view that it must turn out a finished piece of work, even if, as a result, its proposals were rejected. Its success was, of course, from the beginning greatly endangered, because the resolution of congress, literally read, imposed upon it a much more limited task, and the instructions of its delegates, so far as these fundamental questions were concerned, were in part in harmony with the resolution of congress. But the great majority of delegates were of the opinion that the con vention was not to be bound by this formal inyitation, if, in its opinion, its aims could not be reached by keeping within the limits set by that resolution and by the instructions of its members. Wholly independent of the existing law, it went on with its task to work out a plan for the formation of a Union capable of life and of development. It considered the articles of confederation only so far as the experience gained under them showed the errors to be avoided, and always with a constant and comprehensive appreciation of the fact that a Union capable of life and of development could be formed only by adapting it to the facts of the past and the present, and not by doing violence to them for the sake of any theory. The articles of confederation also had not been a product of doctrine alone, and the actual facts which had found in them an adequate expression were still a strong factor, even if somewhat weaker than before and no longer with the same claim to attention, because far-reaching changes had been accomplished or at least begun in the political feeling, and especially in the political knowledge, of the people. The knowledge that all the faults of the articles of confederation must be finally referred to their fundamental principle therefore could not mislead the convention. By adopting exactly the opposite direction, it was sure not to wander from the right path. Although it was compelled by necessity to
give the Union another principle as a basis, yet the great question still remained whether it would do this with the necessary completeness and follow out the main lines of thought to their necessary results. Even if it decided to do so, it was still doubtful whether enough of the spirit of statesmanship could be found to so fashion the details of its task that on the one side sufficient care was taken to fully satisfy all the great needs of the state, and yet, upon the other hand, this was not reached by a consolidation which was not adapted to the actual condition of affairs, either in fact, or, at any rate, in the opinion of the majority. Every page of the history of the Union up to that time testified to the fact that this was a task which made the highest demands upon the political insight, as well as upon the patriotic self-sacrifice, of the delegates. The greatest difficulties grew out of the special interests of the slave-holders in the southern states, and out of the enormous differences in the size and population of the separate states; differences which, so far as concerned the population, were sure to increase constantly. These special interests of the slave-holders were, for two generations, the central problem of the history of the United States. The solution was found in a civil war which lasted four years. Since in this book the history of the constitution needs to be touched upon only so far as required in order to understand the constitutional law of to-day, we must omit any discussion of the constitutional provisions concerning slavery, because, apart from some indirect consequences which will be mentioned by-and-by, slavery in the United States belongs as completely to the history of the past as serfdom in Germany. Only this much must be said, that the representatives of the northern states agreed upon a compromise because some of the delegates on the other side declared that their states would never adopt a constitution which did not respond to their demands in regard to this overshadowing interest. Concerning representation, it was agreed that every five slaves should be reckoned as three free
The slave states thought they obtained an equivalent for this in the provision that direct taxes should be levied according to representation. As a further concession to the slave-holder, it was agreed that fugitive slaves should be delivered up by the other states upon demand. Finally, the immediate suppression of the African slave trade was postponed, but congress was given the right to forbid the importation of slaves after twenty years, i. e., in 1808. It was thought that this provision ensured the gradual dying out of slavery, something which was still generally considered, or at least declared, desirable. Inasmuch as there was still no opposition to the opinion that sla very was a curse laid upon the land by England, great care was taken not to give the words slave and slavery a place in the constitution. They were expressed by the circumlocution: “persons held to service or labor.” The question as to what should be done with the slaves as far as representation was concerned had had, as its condition precedent, that the absolute equality of the states established by the articles of confederation could no longer endure, i. e., that each state could no longer have an equal voice in the government of the Union. But with this change the Union ceased to be a league of states. Whatever arrangement was made the Union was chanced into a federal state. How to his was done, and how strongly the national team was to pear in this consolidation, naturally depenhowever in the first place, if by no means exclusively, upon the question how far and in what way the actual importance of the separate states was to be the basis of their lawful
participation in the federal power. The smaller states wished to maintain, just as far as possible, the then condition of affairs, and the large ones wished to make the reform as thorough as possible. This was not on account of any national feeling. The position of each state was determined by its separate interests. The smaller states thought that in a short time they must sink to the position of mere hangers-on, simply the recipients of the laws dictated by the large states, if the constituent members of the Union were to find their representation amid the federal powers no more as such members, but according to their population. The large states, to whom the actual or at least the claimed extent of their territory and their natural riches promised a development of power scarcely to be reckoned, did not wish to endanger this, and to let their people sink, in a certain sense, into citizens of the second class, ten, twenty, or one hundred of whom would be counted in all federal affairs only for as much as each citizen of the small states. Since the latter based their demands upon the actual law, and the application of force could not be thought of, and since the former were not at all in favor of a complete national fusion, a compromise between the two opposing interests had to be found. It was found when the law-making power was shared between two co-ordinate houses - one of them organized, as the large states, wished, upon the democratic principle of numbers, while in the other, the states, as such, were represented, although, as I shall show later, the character of a house of statt, was not given to it in other respects.
. Jefferson, in hisæddemocratic doctrinairism, even after the constitution had come to life, complained bitterly of the adoption of the two-chamber system, but he forgot that this would not have happened in the first place if the choice ball been simply between one and two houses: