COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, HISTORICAL AND JURIDICAL. CHAPTER I. INTRODUCTION. § 1. Paper Constitutions. PAPER constitutions have been the target for the ridicule of most writers during the present century who have thought themselves political philosophers. Unstable as water, they cannot excel, has been the judgment upon them by historians.1 · Have you a copy of the French Constitution?" was asked of a bookseller during the second French Republic. "We do not deal in periodical literature," was the reply. In the United States, and only in the United States, has a written constitution survived a hundred years, while during the same time the forms of the governments of all other nations have changed more often and more radically than have their respective boundaries. What are the means, will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will, when they feel a desire to go farther, avoid the shame, if not the guilt, of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose." 2 In the preceding century a similar question was answered by the offer of the Almanach Royal. 1 reasons for this phenomenon? How many of them are to be found in preceding history? How many in geographical position? How has the Constitution been affected by the origin of the colonists? How much by the subsequent immigration from all parts of the Old World? To what extent has the Constitution been altered, besides the acknowledged changes contained in the fifteen amendments? What are the advantages of this form of government? What benefits has it secured? What abuses has it perpetuated? What evils has it prevented? How far is it suitable to other countries? Why have its imitations failed in South and Central America? The answers to these questions should be of use to our own countrymen in order to show them what rules must be observed to preserve the stability of our institutions. In the constant remaking of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the pitfalls to avoid and the paths to seek for the permanent security of both liberty and property. These can be found only by an exhaustive study of the precedents which are landmarks of the progress in the development of the Constitution of the United States before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox into the old Senate Chamber at Washington, where Chief Justice Fuller sits with his associates. They were the result of conflicts with the sword, the pen, and the tongue, in the field, the press, the senate, and the court. Amongst their builders are enrolled the names of Simon de Montfort, Coke, Eliot, Hampden, Lilburne, Milton, Shaftesbury, Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the spectacle of the struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to ungoverned labor and complete security for private property. Dry as the account must be in a summary which omits a description of the battles, and does not contain the periods of eloquence and passion used by the combatants on either side of the disputes thus decided, the facts cannot fail to be of interest to all who take the pleasure of the antiquary in tracing the origin of present customs, or who desire from the study of the past to shape the future for the advance of man. § 2. Hostility to the Federal Constitution. It was well said by John Quincy Adams that the Constitution was "extorted from the grinding necessity of a reluctant nation."1 It was accepted by a small majority as the only alternative to disruption and anarchy. Its ratification was the success of the men who were interested in the security of property, the maintenance of order, and the enforcement of obligations against those who desired communism, lawlessness and repudiation. It was a conflict between the cities and the backwoods, between the mountains and the plains. And the opposition was led by those cliques and families who had learned to control for their private interests the state patronage of which the new government must necessarily deprive them.3 The battle was waged on the stump and by pamphleteering, and gave birth to that great repository of political science, The Federalist.4 Two States refused to agree until after it had gone into successful operation, and the rest threatened severe retaliation in order to compel their coalition. Five of the other nine ratified with expressions of disapproval of its terms and a demand for subsequent amendments.5 In but three was it adopted with § 2. Jubilee of the Constitution, by John Quincy Adams, p. 55. 2 For an analysis of the vote on the ratification of the Constitution, see The Geographical Distribution of the vote on the Federal Constitution, by O. G. Libby; Bulletin of the University of Wisconsin, vol. i, No. 1. 8 See Letters of a Landholder, by Oliver Ellsworth, afterwards Chief Justice of the United States, Letter ii. Ford's Essays on the Constitution, pp. 144, 176. + Valuable collections are Pamphlets on the Constitution, and Essays on the Constitution, edited by Paul Leicester Ford. Others may be found in McMaster and Stone on Penn sylvania and The Federal Constitution. The latter contains one which seems to have had more influenc than any except the Federalist: The New Roof, by Francis Hopkinson; an excellent imitation of Swift's Tale of a Tub. 5 Massachusetts, South Carolina, New Hampshire, Virginia, New York. 6 New Jersey, Delaware, and Georgia. The last needed protection from an Indian war then threatened; the others, relief from the State imposts at New York and Philadelphia. Delaware, moreover, which was even then a pocket borough, welcomed the political advantage of the permanent security of two seats in the Senate. out a struggle. In several, success was only obtained by the application of force, threats, or stratagem. In Connecticut, they silenced with tar and feathers an anti-federalist delegate who tried to talk out the Convention. A majority of the New Hampshire delegates were determined or instructed to vote against ratification, and at the first session the federalists considered a vote for an adjournment of three months a victory. At the second, while some of its opponents were "detained" at dinner, the Constitution was ratified by a snap vote, taken at sharp one o'clock. The legislature of Pennsylvania obtained a quorum to call the State Convention by the unwilling presence of two members, dragged to the meeting by a mob who prevented their leaving the house." In the State of New York, a majority of the Convention was anti-federal; and victory was won by the threat of Hamilton, that in case of defeat New York, Kings, and Westchester would ratify the Constitution as an independent state and leave the northern counties alone unprotected from foreign enemies, without any outlet for their commerce to the sea. 10 The charge was believed, if not 7 My authority for this is that accomplished student of American history, Paul Leicester Ford, Esq., from whom I have also received other valuable information as to the history of this period. 8 A contemporary undated indorsement on a letter of April 23, 1788, by Paine Wingate to John Sullivan, Presient of New Hampshire, says: "You see that all the members did not vote, only 104. The others, Timothy Walker detained at his home in this city, after he had given them a dinner, to prevent them from voting -ora nu nber of them." New Hampshif State Papers, vol. xxi, p. 851. The means of detention are unknown. According to tradition, Judge Walker refused to admit the messenger sent by the Convention to summon the absent members, and when the latter persisted, threatened to set the dogs on him. For this information the writer is indebted to the historian of the Convention, Hon. Joseph B. Walker. Daniel Webster's father, Capt. Pelatiah Webster, was a member of the Convention, and in his old age repeated to his family a speech which he claimed that he delivered when he voted for the Constitution (Curtis, Life of Webster, vol. i, p. 10, note). The records show, however, that his constituents instructed him to oppose ratification, and that he did not vote upon the question. (Walker, New Hampshire and the Federal Convention.) 9 A report of the proceedings and debate is to be found in Proceedings and Debates of the General Assembly of Pennsylvania, taken in shorthand by Thomas Lloyd, Philadelphia, 1787, vol. i, p. 115; reprinted and corrected in Pennsylvania and the Federal Constitution, by John Bach McMaster and Frederick D. Stone, ch. ii, pp. 27-73. 10 Letter of George Clinton to John proved, that the Federalists prevented the circulation of the newspapers of the opposition with the mails. And in Pennsylvania and Maryland they suppressed, by purchase and boycott, the reports of the debates in the State Conventions.12 Twice at The Federal Convention itself held its debates in secret for fear lest the public should become so excited that there would be no hope of any successful result of the deliberations. least was it on the point of breaking up in despair. hope did there seem of any practical result, that at last the sceptic Franklin advised his colleagues to take refuge in prayer.13 Even at the end, it was the belief of the strongest supporters of the Constitution, that it could not hold the country together for more than a few years.14 Elements of discord abounded in that small assembly. The States which were prominent in wealth and population protested against the injustice of vesting the control elsewhere than in a majority of population or of property. The smaller States, which in the Continental Congress and under the Confederation. had an equal vote, insisted that they would never surrender the right which they had thus obtained. The communities Lamb, Clinton MSS., New York State 11 Pennsylvania and The Federal Constitution by McMaster and Stone. 12 Ibid. 13 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 253. 14 Gouverneur Morris wrote Walsh, Feb. 5, 1811: "Fond, however, as the founders of our national Constitution were of republican government they were not so much blinded by their attachment as not to discern the difficulty, perhaps impracticability, of raising a durable edifice from crumbling materials. History, the parent of political science, had told them that it was almost as vain to expect permanency from democracy as to construct a palace on the sur- |