Washington

by Douglas Southall Freeman

  Monday and part of Tuesday, May 28 and 29, were spent in adopting rules of procedure. Later on the twenty-ninth, speaking for the Virginia delegation, Randolph, in the stiff language of the Journal, “laid before the House, for their consideration, sundry propositions, in writing, concerning the American confederation and the establishment of a national government.” These “propositions” embodied the “Virginia Plan” that had been developed in the daily meetings Washington had attended. A government of three branches, legislative, executive and judicial, was to be created. The Legislature was to consist of two chambers, one elected by the people of the several States, the other chosen by the elected branch from a list of nominees submitted by the individual state legislatures. This central bicameral body was to have all the relevant powers vested in Congress by the Articles of Confederation and, in addition, the power to pass laws where the States were unable to act or were not in harmony. All State laws that contravened the terms of union could be “negatived” by the “National Legislature” which likewise could “call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” A “National Executive” would have the powers suggested by the title, insofar as the Articles of Confederation conferred authority of this type on Congress. “A general authority to execute the national laws” was added. The “National Judiciary” was to have particular regard to “questions which may involve the national peace and harmony.”

  These proposals and another plan of government prepared by Charles Cotesworth Pinckney of South Carolina were referred that afternoon to the Committee of the Whole. When the committee began its sittings on the thirtieth with Nathaniel Gorham of Massachusetts as its chairman, Washington could take a seat temporarily with the other members. Nine States now were represented by thirty-seven members. While a considerable part of the membership was unknown personally to Washington when the Convention assembled, he soon had ample proof that they represented high ability. It was pleasant to sit among these men during the day and in the evening meet them socially. Conversation then had to be casual because the Convention voted that “members only be permitted to inspect the journal” and that “nothing spoken in the house be printed, or otherwise published, or communicated without leave.” Although this rule occasionally was violated, most members were conscientious and close-mouthed. They would not talk of the one subject every guest at tea and every frequenter of taverns wished to discuss.

  Washington would take the chair each morning and, after the usual preliminaries, turn over the gavel to Judge Gorham. For nearly the entire day’s sitting the members would debate the successive items of the Virginia Plan, which they approved in broad outline with alacrity. After one or another of the involved principles was discussed on a given day for three hours or more, the committee would rise, Washington would resume the chair, and Gorham would report progress, with a request for leave to sit again in committee. Adjournment usually followed at once. Among nearly all members the disposition was to find the largest basis of agreement and defer the issues on which there was wide disagreement. The spirit of accommodation seemed so pervasive that echoes of accord were audible in the newspapers, along with rumbling criticism of Rhode Island for ignoring the Convention.

  Men of differing political background in dissimilar States could not hope to continue in accord. By the second week in June members were divided on the question, Should the first branch of the National Legislature be elected by the people or by the legislatures of the several States? Other issues were shaping themselves: Should the equality of State representation that had prevailed in the Continental Congress be continued? If the first branch of the lawmaking body was to be elected by the people, should slaves be counted in determining representation? To maintain the authority of the national government, must its Congress be vested with power to coerce the States or to “negative” their laws? Indeed, why should the new government be national? Could it not remain federal, with the largest freedom to the States, great and small?

  After the Virginia Plan was reported, in substance, by the Committee of the Whole on June 13, these questions became spearheads of attack on the plan. Debate was as searching as if the Committee of the Whole had not discussed the “propositions” at all. Delegates from the smaller States found a rallying post in resolutions introduced by William Paterson, a New Jersey Delegate. He proposed the amendment of the Articles of Confederation in such a manner as to increase substantially the powers of Congress while preserving federal, as distinguished from national, government, except in two particulars: With the consent of an unspecified number of States a delinquent member of the Union might be forced to meet its obligations; second, acts of Congress and ratified treaties were to be “supreme law of the respective States”—a doctrine that probably made an instant appeal to some of the ablest intellects in the Convention. Powerful speeches by Randolph, James Wilson and Madison led to the rejection, June 19, of Paterson’s outline and put the Virginia Plan before the Convention again. This procedure returned Washington to duty as presiding officer.

  Washington had been pleased, at the beginning of the Convention, to find members more in accord than he had expected, but the basic differences developed during the second week in June and debate became ill-tempered and tedious, particularly on the question of State representation in the legislative branch of government. By the twenty-eighth frowning factions were caparisoned for battle in a mood that made Franklin appeal unsuccessfully for prayers at the opening of each day’s session. On the twenty-ninth, fighting to the last, the spokesmen of the small States were outvoted, six to four, with Maryland divided, on a resolution that established an “equitable” instead of the “equal” basis of representation they sought in the first chamber. This meant that the House of Representatives of a new Congress would be elected, by methods yet undetermined, in proportion to population.

  The men who spoke for the less populous areas mustered their forces anew to win in the second chamber what they had failed to procure in the first. Washington stood with the Delegates who favored representation on the basis of population for both houses, but he did not lose his sense of reality. His counsel was simple: “To please all is impossible, and to attempt it would be vain. The only way, therefore, is . . . to form such a government as will bear the scrutinizing eye of criticism, and trust it to the good sense and patriotism of the people to carry it into effect.” It looked the very next day, July 2, as if debate over representation had served only to array small States against large more stubbornly than ever. In the absence of several members, five state votes were mustered for a resolution to equalize representation in the second chamber. Defeat of the small States in the contest over the composition of the first chamber thus was offset, but at the price of a threatened impasse. When neither side would yield, Pinckney proposed and nearly all the delegations agreed that a “grand committee” of one member from each State be appointed to fashion a compromise. As the committee would require many hours for its deliberations, the Convention adjourned until July 5.

  During the adjournment the General shared in patriotic services at the Reformed Calvinist Church and dined with the Pennsylvania Cincinnati at the State House, but good food and company had not relieved his apprehension when he returned to the Convention. Franklin with much difficulty had prevailed on the “grand committee” to recommend this compromise: representation in the first chamber was to be on the basis of one member for each forty thousand population of each state, with one member for any state that counted fewer than forty thousand heads; the chamber elected on this principle was to have exclusive authority to originate bills levying taxes, appropriating money and fixing salaries; the second chamber should not be empowered to amend these bills, but with respect to no other legislation was it to be subordinate; in this second branch each state was to have “an equal vote.”

  These proposals were regarded by the small States as a victory and they forthwith were attacked by two of the
most powerful debaters in the Convention, Madison and Gouverneur Morris. Some phases of the compromise were turned over on July 6 to a special committee for review; when this group reported, its findings were referred to another “grand committee.” Even the patient and innately optimistic Washington became gloomy. He wrote Hamilton: “I almost despair of seeing a favorable issue to the proceedings of our Convention, and do therefore repent having had any agency in the business.”

  Most of the occurrences of the next week were of a sort to deepen Washington’s disgust with those he described as “narrow-minded politicians or under the influence of local views.” He witnessed a seesaw of advantage between spokesmen of the large States and champions of the small until, on July 16, there was a balance of five to five that apparently could not be shifted. Some of the members were for adjournment and immediate report to the country on the differences that had arisen; others still pleaded for compromise; a few stated frankly their belief that equality of representation in the second chamber had to be conceded if the Convention was to avoid failure. Discussion was renewed at an informal conference the next morning, but so much diversity of opinion was expressed that Madison thought members from the smaller States would conclude they had no reason to fear their opponents could agree on any plan of opposition to equality in the second chamber.

  From that very day, as if in acceptance of the inevitable, a spirit of reconciliation began to show itself. From July 17 through 21 more progress was made in framing a constitution than in any previous period of five days. Final decision on representation in the second branch was deferred; the motion to give the new Congress power to “negative” state laws was abandoned in favor of the clause that the acts of the Federal Legislature should be the “supreme law of the respective States.” Fundamental agreement was reached on the form and function of the Judiciary, the admission of new States, the guarantee to the States of a republican form of government, a complicated scheme for the election of the Executive, and, unanimously, on the grant to the Executive of power to negative all laws of the National Legislature.

  After a Sabbath in the country, Washington enjoyed on July 23 perhaps the most satisfying day he had spent, to that date, in the Convention. Members still had under consideration the powers and term of the National Executive and they wished to conclude this discussion and reach a meeting of minds. Everything else that had been decided on the floor was referred to a committee of five “for the purpose of reporting a constitution conformably to the proceedings aforesaid.” A constitution was to be put on paper! Three more days sufficed to effect agreement on the Executive; the accepted resolutions on that branch were given the new committee; and the Convention adjourned to August 6 to allow the committee ample time for its difficult work.

  During this intermission Washington played many parts—guest, traveler, veteran, planter, fisherman, patron of industry. Two days were given to rest and correspondence. Then on July 30, in Gouverneur Morris’s phaeton, the General rode out to Mrs. Jane Moore’s property, a part of which had been within the Valley Forge encampment. On Trout Creek, which Mrs. Moore’s farm adjoined, Morris wished to try his hand at casting for the fish that gave their name to the creek. While his companion stumped along the bank of the stream, Washington rode over the whole of the cantonment of 1777-78, which he never had seen in summer’s green. From the vicinity of Valley Forge, he returned to Philadelphia and, on August 3, went up to Trenton with a party to see whether the perch in the Delaware were interested in bait. This time the General himself used a rod with little luck one day and more success the next. He was back in Philadelphia late August 5 to be certain he did not miss the proceedings of the sixth.

  Printed copies of the draft constitution were ready for members when Rutledge rose to speak on behalf of the committee. Washington and all the other members listened and some followed the type across the page, line after line, as the Secretary read the entire text. With little argument, the Convention adjourned till the next day. Rejection on August 7 of a motion to go into Committee of the Whole gave Washington the hard assignment of presiding during a floor debate that might be more tangled and retarded than ever, because of endless motions to amend.

  Members now began with vigor and some impatience a detailed scrutiny of the suggested text, though some of them realized that the completion of their task still would be a work of weeks. Progress was steady, if not swift. Washington presided with what was termed “his usual dignity,” and, as he had the respect and consideration of all members, he was saved from parliamentary pitfalls. From the seventh through the eleventh the Convention plodded towards agreement. The pace was slower the next week because members were of two minds over the admission of foreign-born citizens to the National Legislature and over the origin of appropriation bills.

  On August 18 an armful of proposals to give specific powers to Congress was turned over to committee, and the involved question of Federal assumption of state debts was referred to a special committee. Then the Convention discussed the relation of the new government to the defence of America. On adjournment that afternoon to Monday the twentieth it was to the credit of Washington’s endurance that he still had energy for an excursion on Sunday. With his friend Samuel Powel, he rode out to White Marsh, went over his old encampment there, proceeded to Germantown and probably visited the Chew House. The analogy of the struggle for a better government prompted Washington to reflect “on the dangers which threatened the American Army” at White Marsh. That camp site and Germantown exemplified the tortured hours during the dreadful months between the landing of Howe at Head of Elk in August 1777 and the debouch of the lean American forces from Valley Forge when Howe evacuated Philadelphia in May 1778. Independence had been won in woe; the dark forces that had prolonged the contest still lived. “. . . there are seeds of discontent in every part of the Union,” Washington warned, “ready to produce other disorders if the wisdom of the present Convention should not be able to devise, and the good sense of the people be found ready to adopt a more vigorous and energetic government. . . .”

  He returned from Germantown to Philadelphia on August 20 and began another hard week as presiding officer of the Convention. Members apparently had lost none of their positiveness and divided readily on the detail of the constitution, but few wasted the time of their colleagues in long orations. They would argue, object, defend, vote—and take up the next section of the draft constitution. On the twenty-second they paused to debate the ethics and economy of the slave trade and, in so doing, disclosed the differences between North and South, between commerical and plantation States, between those that found slave owning uneconomical and those that thought it profitable. The cleavage was as deep as that between large States and small and was vehemently outspoken. The Convention agreed to accept the proposal of Gouverneur Morris to refer the question of the slave trade and other disputed clauses to a committee. “These things,” said Morris, “may form a bargain among the Northern and Southern States.”

  Then, on the twenty-third, the Convention reached the seventh article, that which made the legislative acts and existing and future treaties of the United States “the supreme law of the several States.” After scrutinizing and simplifying the language, the Convention adopted this article unanimously. Simultaneously the Delegates rejected the much discussed alternative, the amendment that would have empowered the National Legislature to negative any state law if two-thirds of the members of both branches so voted. An awkward obstacle was out of the way! The road was getting better. On the twenty-fifth the members accepted a compromise that forbade Congress to prohibit the importation of slaves prior to 1808. When Washington put this motion and not long afterward announced adjournment, the week’s labor had been as productive as any of the Convention’s life. He had much reason for satisfaction and for rekindled hope when he again rode out into the country on Sunday.

  Briskly on August 27 the members began discussion of provisions regarding the Judiciary. Despite the presentation of a
theme on which every one of the twenty-nine lawyers in the Convention had opinions, debate was mild and agreement not difficult. By the last day of the month it seemed desirable to name a committee to review all postponed questions and report them for final action. An even better augury of the early completion of the text was the drafting of clauses on the ratification of the constitution by the States. The Articles of Confederation provided that amendment had to be by the unanimous consent of the States, but few members, if any, favored adherence to this requirement. The Convention voted to require the assent of nine States.

  The last major article of the draft constitution awaiting decision was that which set forth the method by which the Executive was to be elected and vested with power. Discussion of this had become so involved that final action had been deferred. Now the Convention resumed the debate and in four days reached agreement. On September 8 Washington and his companions had the satisfaction of referring the draft constitution to a committee of five “to revise the style of and arrange the articles agreed to by the House.” The Delegates selected for this task were admirably equipped for it—William Samuel Johnson, Hamilton, Gouverneur Morris, Madison and Rufus King, men of clear heads and precise pens. Monday September 10 was given to debate on amendment and ratification; on the eleventh the Committee on Style not being ready to report, the Convention merely assembled and adjourned. Waiting was rewarded: an admirable text was presented on the twelfth by the chairman, Judge Johnson, and, once read, was sent to the printer so that every member might familiarize himself with the precise letter of the text and with titles and terms. The “first branch of the Legislature” was, for example, to be styled the House of Representatives; the second was to be known as the Senate. “President” was the designation recommended for the Chief Executive; the court of last resort was to be called the Supreme Court of the United States. While the compositors set the type that recorded these changes the Convention debated issues concerning which there was no basic disagreement between North and South or between large States and small.