all, causes were carried by appeal from the colonial courts to the English Privy Council. Acts of the British Parliament ran there, as they now run in the British colonies, whenever expressed to have that effect, and could overrule such laws as the colonies might make. But practically each colony was a self-governing commonwealth, left to manage its own affairs with scarcely any interference from home. Each had its legislature, its own statutes adding to or modifying the English common law, its local corporate life and traditions, with no small local pride in its own history and institutions, superadded to the pride of forming part of the English race and the great free British realm. Between the various colonies there was no other political connection than that which arose from their all belonging to this race and realm, so that the inhabitants of each enjoyed in every one of the others the rights and privileges of British subjects.
When the oppressive measures of the home government roused the colonies, they naturally sought to organize their resistance in common.2 Singly they would have been an easy prey, for it was long doubtful whether even in combination they could make head against regular armies. A congress of delegates from nine colonies held at New York in 1765 was followed by another at Philadelphia in 1774, at which twelve were represented, which called itself Continental (for the name American had not yet become established),3 and spoke in the name of “the good people of these colonies,” the first assertion of a sort of national unity among the English of America. The second congress, and the third which met in 1775 and in which thereafter all the colonies were represented, was a merely revolutionary body, called into existence by the war with the mother country. But in 1776 it declared the independence of the colonies, and in 1777 it gave itself a new legal character by framing the “Articles of Confederation and Perpetual Union,” 4 whereby the thirteen states (as they then called themselves) entered into a “firm league of friendship” with each other, offensive and defensive, while declaring that “each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”
This Confederation, which was not ratified by all the states till 1781, was rather a league than a national government, for it possessed no central authority except an assembly in which every state, the largest and the smallest alike, had one vote, and this assembly had no jurisdiction over the individual citizens. There was no federal executive, no federal judiciary, no means of raising money except by the contributions of the states, contributions which they were slow to render, no power of compelling the obedience to Congress either of states or of individuals. The plan corresponded to the wishes of the colonists, who did not yet deem themselves a nation, and who in their struggle against the power of the British Crown were resolved to set over themselves no other power, not even one of their own choosing. But it worked badly even while the struggle lasted, and after the immediate danger from England had been removed by the peace of 1783, it worked still worse, and was in fact, as Washington said, no better than anarchy. The states were indifferent to Congress and their common concerns, so indifferent that it was found difficult to procure a quorum of states for weeks or even months after the day fixed for meeting. Congress was impotent, and commanded respect as little as obedience. Much distress prevailed in the trading states, and the crude attempts which some legislatures made to remedy the depression by emitting inconvertible paper, by constituting other articles than the precious metals legal tender, and by impeding the recovery of debts, aggravated the evil, and in several instances led to seditious outbreaks.5 The fortunes of the country seemed at a lower ebb than even during the war with England.
Sad experience of their internal difficulties, and of the contempt with which foreign governments treated them, at last produced a feeling that some firmer and closer union was needed. A convention of delegates from five states met at Annapolis in Maryland in 1786 to discuss methods of enabling Congress to regulate commerce, which suffered grievously from the varying and often burdensome regulations imposed by the several states. It drew up a report which condemned the existing state of things, declared that reforms were necessary, and suggested a further general convention in the following year to consider the condition of the Union and the needed amendments in its Constitution. Congress, to which the report had been presented, approved it, and recommended the states to send delegates to a convention, which should “revise the Articles of Confederation, and report 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.”
The Convention thus summoned met at Philadelphia on the 14th May 1787, became competent to proceed to business on May 25th, when seven states were represented, and chose George Washington to preside. Delegates attended from every state but Rhode Island, and among these delegates was to be found nearly all the best intellect and the ripest political experience the United States then contained. The instructions they had received limited their authority to the revision of the Articles of Confederation and the proposing to Congress and the state legislatures such improvements as were required therein.6 But with admirable boldness, boldness doubly admirable in Englishmen and lawyers, the majority ultimately resolved to disregard these restrictions, and to prepare a wholly new Constitution, to be considered and ratified neither by Congress nor by the state legislatures, but by the peoples of the several states.
This famous assembly, which consisted of fifty-five delegates, thirty-nine of whom signed the Constitution which it drafted, sat nearly five months, and expended upon its work an amount of labour and thought commensurate with the magnitude of the task and the splendour of the result. The debates were secret, and fortunately so, for criticism from without might have imperilled a work which seemed repeatedly on the point of breaking down, so great were the difficulties encountered from the divergent sentiments and interests of different parts of the country, as well as of the larger and smaller states.7 The records of the Convention were left in the hands of Washington, who in 1796 deposited them in the State Department. In 1819 they were published by J. Q. Adams. In 1840 there appeared the very full and valuable notes of the discussions kept by James Madison (afterwards twice president), who had been one of the most useful members of the body. From these records and notes8 the history of the Convention has been written.
It is hard today, even for Americans, to realize how enormous those difficulties were. The Convention had not only to create de novo, on the most slender basis of preexisting national institutions, a national government for a widely scattered people, but they had in doing so to respect the fears and jealousies and apparently irreconcilable interests of thirteen separate commonwealths, to all of whose governments it was necessary to leave a sphere of action wide enough to satisfy a deep-rooted local sentiment, yet not so wide as to imperil national unity.9 Well might Hamilton say: “The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy to the completion of which I look forward with trembling anxiety.” 10 And well he might quote the words of David Hume (Essays, “The Rise of Arts and Sciences”): “To balance a large State or society, whether monarchical or republican, on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgments of many must unite in the work; experience must guide their labour; time must bring it to perfection; and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.”
It was even a disputable point whether the colonists were already a nation or only the raw material out of which a nation might be formed.11 There were elements of unity, there were also elements of diversity. All spoke the same language. All, except a few descendants of Dutchmen and Swedes in New York and Delaware, some Germans in Pennsylvania, some children of French Huguenots in New England and the Middle states, belonged to the same race.12 All, except some Roman Catholics in Maryland, professed the Protestant religion. All were governed by the same English common law, and prized it not only as the bulwark which had sheltered their forefathers from the oppression of the Stuart kings,
