by Ron Carter
Sherman was barely seated when James Wilson rose. Born in Scotland in 1742, Wilson was an able and learned lawyer who had served in Congress. An eager signer of the Declaration of Independence, he stood in highest repute in his city of residence, Philadelphia. Washington had declared him to be one of the most able, candid, and honest members of the convention. Thoughtfully Wilson spoke.
“It appears obvious to me that there is great wisdom in giving the federal pyramid as broad a base as possible. Let the people learn the business of government, to become competent, and collectively become the base on which this government rests.”
Madison let Wilson be seated before he stood. He took a deep breath, and in his quiet voice, succinctly laid out his logic.
“Experience and study leave but one conclusion. I have long considered the popular election as essential to every plan of free government. To the extent we vest the electoral powers in less than all the people, we have reduced free government. The great fabric to be raised would be more stable and durable if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the legislatures.”
Madison sat down. Franklin sensed the time had arrived for the vote, and looked at Gorham. Washington’s eyes moved, first to Madison, then to Gorham, waiting.
Gorham spoke. “There being no further debate, the ballot will be taken.”
A charged, hushed silence held while Jackson called for the votes.
Six states voted “aye.” Two, South Carolina and New Jersey, voted “nay.” Two, Connecticut and Delaware, were divided, and abstained. The power in the new nation would be vested in the common people, not just the elite.
Franklin shifted his feet and gritted his teeth at the pain in his legs. He moved them until they were more comfortable, then settled with his thoughts running. A landmark! The common man won! He paused for a moment, then his thoughts continued. But no one defined the term. Who is the “common man”? What color is he? White? Red? Yellow? Black? We’ve got “common men” of all those colors. Do we mean to let them all vote? He pursed his mouth for a moment, and then a wry smile came. I think we haven’t seen the last of the debate on the “common man.”
Large white handkerchiefs were in rich abundance as the delegates mopped at the sweat glistening on their faces. The air inside the closed room had become stagnant, stifling, and they peered longingly at the drawn drapes covering the closed windows. The hardheaded Yankees from the north silently cursed their wool suits, while the southern gentlemen sat more easily in their light linens. Gorham, at the desk, reached for the next document, and the room quieted as he scanned it. He read it aloud.
“The national legislature shall enjoy the legislative rights vested in congress by the confederation, and moreover to legislate in all cases to which the separate states are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
Washington glanced at the faces of the delegates he could see. The eyes of many, perhaps most of them, were glazed, their expressions a near total blank. Every man in the room knew that the old confederation had failed because it lacked the power to enforce its own acts. They also knew that if this government they were now trying to invent one piece at a time were to succeed, they could not make the same fatal error. They must give it the power to enforce what it enacted. But few of them had ever dreamed of granting Congress the broad, all-inclusive, sweeping powers that were now on the floor for debate. Such powers in the wrong hands could destroy the states!
Pierce Butler of South Carolina was the first to collect his wits and stand. “I confess that yesterday I stated my willingness to go to great lengths to establish a government that had the power to succeed. But as I now contemplate the language in the resolution before us, I believe we are running into an extreme in taking away the powers of the states. That we cannot—must not—do!”
John Rutledge of North Carolina was on his feet before Butler was seated. “I rise to object—strongly—to the use of the term incompetent. How are we to understand that word in the context of this resolution? In what particulars is a state to be considered ‘incompetent’? Who makes that decision? The state? Or the national government? And if it be the national government, then it is only a matter of time before the individual states are rendered not only incompetent, but for all practical purposes, nullities!”
Charles Pinckney was moving in his chair, nervous, impatient, and stood the moment Rutledge sat down.
“I agree with Mr. Rutledge. The term incompetent can mean whatever a man, or an entire congress, wants it to mean. Before we find ourselves trapped in such a circumstance, we must define what we are taking away from the states, and what we are giving to this new, untried, unproven national government. We must have a detailed enumeration of those powers.”
Randolph turned to Rutledge. “I disdain any intention to give indefinite powers to the national legislature. That was never in the contemplation of this resolution. Once again may I say, these resolutions are merely intended to propose the form of the national government. The detail is for this body to resolve.”
Madison stood, and the hall quieted. The delegation was beginning to understand that the resolutions so boldly proclaimed by the eloquent Randolph were in fact part of a much larger, radical, startling new plan for the national government. And while from all appearances the entire Virginia delegation had become the champion for the new plan, all the delegates, or nearly all of them, were rapidly learning that the plan was the product of the years of study and preparation by James Madison, not Randolph. It was Madison who, largely unnoticed, had spent years gathering the best he could garner from the great minds of America—Jefferson, Washington, Mason, Wythe, Adams, Hamilton, Jay—the list was nearly inexhaustible—and reduced the kernel of it to the plan now being fed to the convention one resolution at a time. And it was Madison who had harassed the Virginia delegation to appear in Philadelphia days before the convention was to gather, and insisted they meet daily to polish and refine his plan.
Madison turned from his position directly in front of the dais to face the entire convention, and no man stirred.
“I have brought with me into the convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature; but I have also brought doubts concerning the practicability of such an enumeration and definition. My wishes have remained unaltered, but my doubts have become stronger.”
The delegates nearest him were intent on every word. Those furthest were beginning to sit straighter in their chairs, turning their heads to hear the quiet voice. The call came from the rear of the room, “Would you speak a bit louder, Mr. Madison? We cannot hear you.”
Madison smiled and nodded his understanding, and raised his voice to continue. “What my opinion on the question might ultimately be, I cannot tell. But I will shrink from nothing which should be found essential to such a form of government as will provide for the safety, liberty, and happiness of the community.”
It was enough. No one rose to speak further on the resolution. Gorham called for the vote, and William Jackson recorded it. All states present voted “aye,” except Connecticut, which was divided, and abstained.
Gorham did not hesitate. “We shall address the next resolution. ‘Resolved, that Congress shall have authority to negate all laws passed by the states which contravene in its opinion the articles of union.’” Gorham looked out at the committee. “Open for debate.”
A delegate stood. “I move to amend the resolution to include a provision that the national congress be empowered to negative state laws contravening national treaties.”
“Seconded.”
“Moved and seconded. Further debate?”
There was none. Gorham droned on. “On the motion to amend, Mr. Jackson will record the vote.”
It was unanimous.
“On the resolution as now amended, open for debate
.”
Most of the delegates were all too well aware that the debate on this issue had been opened years before the notion of the Grand Convention entered the minds of the delegates. The sins of the state legislatures were legion, against other states, the Union, and their own citizenry, and few thinking men hesitated in delivering broadsides. George Mason caught the bitter sum of it in 1783, in a letter written to William Cabell, in which he said:
“A strict adherence to the distinctions between right and wrong for the future is absolutely necessary to restore that confidence and reverence in the people for the Legislature which a contrary conduct has so greatly impaired, and without which their laws must remain little better than a dead letter. Frequent interferences with private property and contracts, retrospective laws destructive of all public faith as well as confidence between man and man, and flagrant violations of the Constitution, must disgust the best and wisest part of the community, occasion a depravity of manners, bring the Legislatures into contempt, and finally produce anarchy and public convulsion.”
Early in the convention Madison had laid it bare. “Effectual provision for the security of private rights and the steady dispensation of justice are essential, since interferences with these, perhaps more than anything else, produced this Convention. The state legislatures have trespassed on each other, giving preference to their own citizens, and to aggressions on the rights of other states by emissions of paper money and kindred measures; also, the retaliating acts passed by the states pose a threatened danger not in the harmony only, but the tranquility of the union. Experience in all the states has evinced a powerful tendency in the legislature to absorb all power into its vortex. This is the real danger to the American constitution.”
Gouverneur Morris had been vociferous. “The public liberty is in greater danger from legislative usurpations than from any other source. Legislative instability and legislative tyranny are the great dangers to be apprehended.”
Many men now sitting in the heat of the East Room had joined in the wholesale condemnation of the errant legislatures. Thus it was that when Gorham called for formal debate, none saw need to utter a single word. The matter had long since been decided. Silence held for ten seconds before Gorham straightened, surprise clear on his face, and asked, “Is there debate?”
A few heads shook in the negative, and a startled Gorham said, “There being no debate, is there a second?”
“Seconded.”
“Mr. Jackson will record the vote.”
The vote was unanimous.
Both Franklin and Washington moved slightly in their chairs, then settled, each caught up in reckoning what was happening on this last day in May 1787.
Gorham took up another document. “We now take up our last matter of business. ‘Resolved, that the national legislature be empowered to call forth the force of the union against any member of the union failing to fulfill its duty under the articles thereof.’”
With no exception, every man in the hall understood that the fundamental flaw that finally doomed the old Confederation congress was the fact it was powerless to enforce its own acts. Without question, the entire committee knew they could not allow the same error to exist in the new government. It must have power to enforce its acts, including force of arms if necessary.
To the surprise of the entire committee, it was Madison who stood first.
“I have had time to reflect on the use of force as implied in this resolution, and the more I have considered it, the more I doubt the practicability, the justice, and the efficacy of it, when applied to people collectively, and not individually.”
Pinckney’s thoughts were running. He sees that punishing an entire state is excessive—punishing an individual or an institution is more to be desired—and he’s right.
Madison finished. “Accordingly, I move that debate and vote on this resolution be postponed to a date to be determined at a future time.”
The second came instantly, and the vote was unanimous. The issue was postponed.
Gorham glanced at his pocket watch, wiped at the sweat on his forehead, and declared, “The committee has concluded the business of the day. If there is nothing else to properly come before us, we are adjourned, and I deliver the chair back to General Washington for the concluding affairs of the convention.”
Handkerchiefs were in abundance as Gorham stepped down from the dais and Washington started from his chair. Men moved in their chairs, and small talk held for a few moments. A half-sheet of paper fluttered unnoticed from one table to the aisle floor as Washington mounted the two steps up onto the dais and took his chair.
“Is there further business for this convention?”
There was none.
“We stand adjourned until ten o’clock tomorrow morning, June first.” Washington began gathering his papers from his desk.
For a moment George Mason leaned back in his chair, eyes narrowed in thought while he took stock of what the day had brought. Yesterday we struck down the only government this country ever had—today we set up a two-house congress—gave it power over everything it thinks the states are incompetent to handle—without a hint of a listing of what that means—gave the vote to the common man—whoever he is—and very nearly authorized the new national congress to march the whole Continental army into a disobedient state and take it over! If anyone outside this room hears all this, I expect the doors will be smashed down within minutes, and incensed citizens will adjourn our grand convention sine die, forthwith.
He straightened, then rose with the other delegates, and they all began gathering up their notes and papers, when one of them noticed the half-sheet of paper lying in the aisle. For a moment he stared, then picked it up and walked forward to the dais to face Washington.
“Mr. President, this paper was found on the aisle floor. I have not examined it, but I thought it ought to be brought to your attention.” Washington took the paper, and while the delegate turned on his heel and marched back to his seat, Washington unfolded it. Those nearest had witnessed the entire episode and were watching when the lightning came into Washington’s eyes, and the muscles in his jaw began working. Instantly the entire convention became motionless, silent, while their President read the document again to be certain, and then he raised his eyes and held up the paper.
“One of you allowed this document to be left on the aisle floor. On it are notes regarding some of the work done today by the committee of the whole.”
Not one man moved a hand, or a handkerchief, in the stifling, stale air. Sweat was left running as Washington continued.
“I must entreat you gentlemen to be more careful, lest our transactions get into the newspapers and disturb the public repose by premature speculations. I know not whose paper it is, but there it is.”
He turned and threw it down on the desk behind him. “Let him who owns it take it!”
Every eye was locked on Washington as he picked up his hat. He bowed slightly from the waist, straightened to his full height, stepped down from the dais, and marched down the aisle in dead silence, looking neither right nor left, the sound of his clicking boot heels echoing from the walls. Those standing on the aisle shrank slightly as he passed, and for several moments no one moved or spoke. Talk and movement began hesitantly, and then the delegates quietly filed out of the hall, each peering down at the aisle floor, and around every desk as they went.
The incriminating half-sheet of paper was never claimed.
Notes
On May 31, 1787, the committee of the whole addressed the issue of who shall elect the first house of the bicameral legislature—the state legislatures or the people—which placed the question squarely before the committee: Could they trust common people to be responsible for their own government? It had never been done before in history, and the issue was hotly debated before the vote was taken. It passed, six to two, with two states abstaining. The next issue proposed granting power to the newly proposed national government to legislate in all matters in wh
ich the various states were incompetent—which is to say, the national government had to have power to legislate on national affairs, and the states were to have power to legislate on state affairs. It passed unanimously. The proposed vesting of power in the new national government to punish disobedient states was postponed and they adjourned. The Grand Convention was now creating a totally new government, unheard of, undefined, one step at a time. Warren, The Making of the Constitution, pp. 158–72; Rossiter, 1787: The Grand Convention, pp. 72–73; Moyers, Report from Philadelphia, see page dated Thursday, May 31, 1787.
James Wilson, George Mason, John Rutledge, and Elbridge Gerry are correctly described. Rossiter, 1787: The Grand Convention, pp. 85–86, 104–5, 120–21, 130–31.
The incident herein recited of the delegate who allowed a piece of paper to be left on the floor of the convention room, which was given to George Washington as President of the Convention, prompting him to warmly reprimand whoever dropped it, is true. No one ever claimed the paper. Farrand, The Framing of the Constitution of the United States, p. 65; Warren, The Making of the Constitution, p. 139.
Philadelphia
June 1–4, 1787
CHAPTER XIII
* * *
It was not yet ten o’clock when Benjamin Franklin slowly set his feet on the cobblestones in front of the Statehouse and eased his eighty-one-year-old body out of the coach to see if his gout-ridden legs would take the load. One of the coachmen was at his side, an arm about his waist, the other beneath his elbow to take some of the weight until the legs stopped trembling and Franklin could straighten. The heat had held through the night, and the morning sun had turned Philadelphia into a sweltering sauna of dead air so heavy the streets seemed locked in a hazy mist.
Franklin set his cane and smiled at the coachman. “Thank you. I think I can manage from here.”
The man nodded and released his hold and took one step back, watching intently as Franklin took the first few faltering steps. The stride of the old statesman in the plain brown suit and the long gray hair became stronger as he walked up to the door of the Statehouse, and he nodded his thanks to the person who opened it for him to enter.