CHAPTER III

THE RISE OF THE CONSTITUTIONAL CONVENTION AND THE DECLINE OF THE LEGISLATURE

ALTHOUGH an unfriendly newspaper critic had alleged that it was ridiculous for "the thirteen United States of America to maintain an Ambassador in England at the enormous expense of, perhaps, eight or ten guineas per day for no other visible purpose than to write a eulogium on the British government under the sham pretence of vindicating the American Constitutions ", Mr. Adams' "Defence" of these Constitutions against the attack of M. Turgot exerted a very great influence when it appeared, well supplementing the work which he, and those who thought with him, had earlier done in behalf of the system of checks and balances in the United States. So well established were these views, however, by the time the Federal Convention met that the advocates of a single chamber were an insignificant force. Madison wrote in the Federalist in 1788 respecting a legislature of two houses: "This is a precaution founded on such clear principles and now so well understood in the United States that it would be more than superfluous to enlarge on it." 2

In other States than Pennsylvania there had also been a tendency toward the simpler forms, and notably in Massachusetts, where John Adams himself drafted the first constitution, it having been adopted by the convention as it came from his pen without material amendment. It has survived to this day in its fundamental form though as the years have rolled along some changes have been dictated by modified conditions and circumstances. Adams' Constitution is still 1Pennsylvania Packet, October 5, 1787. "The Federalist, p. 292.

the Constitution of Massachusetts, though 119 years have passed over its head, a remarkable tribute to the political wisdom of its author which is contrasted in a striking way with the brief and unhappy life of Franklin's a priori scheme of government in Pennsylvania. Even Samuel Adams is said to have been inclined toward a single house of legislature in Massachusetts, and later as the people's discontent spread, with the severer financial conditions which were brought on by the war, they, dissatisfied and unable to trace their ills to the true source, made it an occasion to demand a more democratic form of government. For instance, at the convention in Hampshire County that met in 1786, just prior to "Shay's Rebellion ", which the State government, as it had been constituted, was fortunately strong enough to cope with in a summary way, it was asserted that the Senate was a most obnoxious feature of the Constitution. Since it seemed to be a restraint upon the insurgents' mischievous designs, they desired that the second house should be abolished. An insurrection in New Hampshire also evidenced much popular dissatisfaction in that State. Changes in the Constitution were desired since the existing government had proven itself strong enough to prevent the realization of the plans of certain agitators for unlimited issues of paper money and a more equal distribution of property.

It was these outbreaks, Adams tells Franklin, which really set him to the task of writing his "Defence of the American Constitutions". The work was suggested, he says, by "the late popular frenzy in Massachusetts and New Hampshire". A government of three departments and a legislature of two houses in order to prevent a régime of disorder under the leadership of a passionate convention without checks of any sort-this is the only sense ", Mr. Adams adds, "in which I am or ever was a republican." In recalling this period of

3

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John Adams' Works, Vol. I, pp. 286-7; also Vol. IX, p. 618.

G. L. Austin, History of Massachusetts, Boston, 1876, p. 365.

Sparks' Works of Franklin, Vol. X, p. 284-a letter to Franklin from London, dated January 27, 1787.

his life afterward, in 1809, Mr. Adams referred to the anxiety which he felt while his "Defence" was in preparation, lest the dispersion of extreme democratic sentiments in Massachusetts should lead to total anarchy, and wrote: "Every western wind brought us news of town and county meetings in Massachusetts adopting Mr. Turgot's ideas, condemning my Constitution, reprobating the office of governor and the assembly of the senate as expensive, useless and pernicious, and not only proposing to toss them off but rising in rebellion against them. In this situation I was determined to wash my hands of the blood that was about to be shed in France, Europe and America and show to the world that neither my sentiments nor actions should have any share in countenancing or encouraging any such pernicious, destructive and fatal schemes". All over America, indeed, though nowhere to so marked a degree as in Pennsylvania, the friends of extremely democratic forms were a very active force. Thoroughly beaten and discredited as they were by the adoption of the Federal Constitution, and by the lessons which all the world could draw from the dire occurrences of the French Revolution, the same elements continued to exert an influence on American politics for many years.

Convinced as the best minds then were, and as we still must be in looking back over the history of the American States, that their constitutional development was natural and proper only so long as it conformed to those empirical principles which Adams so clearly perceived and so ably defended, there have come up in course lately some things that contrast rather curiously with earlier events. The growth of the influence of the constitutional convention is unquestionably one of the most remarkable manifestations in the field of popular government in the United States to-day. The convention has been gaining strength year by year and has been absorbing powers that it earlier did not possess until the legislature with its boasted two chambers, once the centre of so peculiar a constitutional contest, is to-day little more than a Adams' Works, Vol. IX, pp. 621, et seq.

shadow of its former self. One of the three departments of government, the legislative, expressed itself through the legislature which has now had to divide its honors with another legislative agency, the convention. This convention, oddly enough, is an assembly of a single chamber, from which the founders of the government strove so diligently to keep us free. How we have come through this development it will be my task in this chapter to demonstrate.

There has never been the slightest doubt in the minds of publicists who have written of our institutions as to where sovereignty resides. It resides with the people. They are the original source of the government's authority; it is with them as the object of its activities that the state exists. They, somewhat in the way of a great abstraction, serve us as a background for our political thinking, and from them the various agencies of the government are traced out historically into their present forms. Political philosophy devotes itself to exploring the field and defining, in so far as it can do this, the frontiers of government, laying out the boundaries of the "state" in relation to whatever else exists in our social system. Political science, taking these frontiers as they have been established, looks to the problem of organizing the state, of giving to it a definite position in the social scheme, of appointing its agents and assigning to each its suitable tasks. We have noted how at great pains the Americar. governments were held to three main departments, the legislative for enacting the law, the judicial for expounding and interpreting it and the executive for carrying it into effect. The people as the sovereign power had delegated to these agencies, one checking the other, in order to secure stability and equipoise-thus, as it were, putting a spine in the creature that it would not fall with every turn of the wind— the authority to act in their name as the government and the

state.

Now, how does the State constitution fit into this system, and in what relation does the convention, which framed it, stand to these other agencies of the government? The

Americans turned to a written constitution in the most natural way, and again chiefly because they were at ground Englishmen, or, at any rate, colonists gone out from the British Islands, carrying with them their grants and charters in which were guaranteed to them the rights they prized so highly. It is true that England herself had not then, and still to-day has not a written constitution. Throughout the colonial period, however, in the struggle with the crown and the proprietors it was, with the American colonists, a question of securing from England fresh concessions, and not any of a chimerical kind but those which were couched in definite terms and which the delegates, who often sought them in person, could bring home with them in writing across the ocean.

It was a development perhaps not quite so natural that these constitutions should be framed by conventions, i. e. by bodies of delegates separately chosen to do this important work, rather than that the task be intrusted to the regular legislature which has created and continues to build up the English Constitution. But it is necessary to consider the fact that when the colonies broke loose from their English moorings, the aristocratic assemblies and royal governors could no longer be safely utilized. These were followed by conventions, or provincial conferences, or congresses, however they may have been denominated. As Jameson, in his classic work on Constitutional Conventions, clearly points out, these bodies were of the "revolutionary type exercising powers of various kinds; not only framing new constitutions, but also electing magistrates and members of the general Congress, enacting statute law on a wide variety of topics and providing for the common defense. They got their authorization through force, i. e., lacking other means, the stronger party in the colonies allowed these bodies of delegates to step in and do what was considered to be expedient to establish and perpetuate the principles which this stronger party valued and held to be dear. Some of the first constitutions were framed by the same bodies which