by H. W. Brands
The thorniest of the final issues involved slavery. How should slaves be counted toward representation in the lower house? Naturally the delegates from the states with few slaves wanted to minimize the slave count; they pointed out that since slave owners considered slaves to be property, those same slaves should not be counted as persons. The delegates from states with many slaves objected, less on philosophical grounds than on the pragmatic one that without some allowance for slaves, their states simply would not accept the new constitution. James Wilson of Pennsylvania proposed that the new constitution adopt the expedient devised by the Confederation Congress in 1783, when the legislature allowed the states to count three-fifths of the total number of their slaves. This compromise made no one happy but none so upset as to bolt the convention, and it was accepted.
A similar makeshift disposed of the question of the slave trade. The new constitution would give Congress power to regulate commerce, but the heavily slaved states resisted infringement on the commerce in slaves. Franklin had been sharply critical of the slave trade when it was practiced by the British, and—as he would soon reveal—had come to detest the entire institution of slavery, but when the southern states made clear that the issue of the slave trade was another potential convention-breaker, he acquiesced in another compromise. For twenty years Congress could not bar the traffic in slaves; from 1808 it might do what it chose on the subject.
On September 17 the completed copy of the Constitution was ready for the members’ signatures. Franklin addressed the convention for the last time. Again he spoke through James Wilson, who read his colleague’s prepared remarks. “I confess that there are several parts of this constitution which I do not at present approve,” Franklin said. “But I am not sure I shall never approve them, for having lived long, I have experienced many instances of being obliged by better information or fuller consideration to change opinions even on important subjects which I once thought right but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more attention to the judgment of others.”
Some people felt themselves possessed of all truth; so did most sects in religion. Franklin explained how the Anglican Richard Steele (upon whose writing, many years before, he had modeled his own) once penned a dedication to the Pope, in which he explained, in Franklin’s paraphrase, that “the only difference between our churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong.” Franklin also quoted a Frenchwoman of his acquaintance who, in an argument with her sister, declared, “I don’t know how it is, Sister, but I meet with nobody but myself that’s always in the right.”
As the chuckles subsided, Franklin made his point. “In these sentiments, Sir, I agree to this constitution with all its faults, if they are such; because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered.” He reminded once more that the strength of any government rested on the virtue of the people. “This is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other.”
Franklin doubted whether any convention could have done better. “When you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” The wonder was how well the present assembly had done. “I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel, and that our states are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, sir, to this constitution, because I expect no better, and because I am not sure that it is not the best.”
Franklin closed by suggesting that the confidentiality that had surrounded the proceedings ought to continue upon the members’ parting. “The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die.” If each delegate, returning to his constituents, complained at this point or that of the new government, the total of the complaints would probably scuttle the project. On the other hand, unanimity would encourage ratification. “I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously.”
Achieving this unanimity required a final bit of finesse. Franklin knew full well that unanimity of delegates was not possible. Edmund Randolph was holding out, as were Elbridge Gerry and George Mason. But unanimity of the states might be attained, by polling the members within each delegation and heeding the majorities therein. Gouverneur Morris framed a formula for the signing: “Done in Convention, by the unanimous consent of the States present the 17th of September.”
Franklin moved that the convention adopt this formula, and the motion carried.
George Washington signed first, followed by thirty-seven others, state by state. James Madison related the convention’s close:
Whilst the last members were signing it, Doctor Franklin, looking towards the president’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had often found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun.
30
To sleep
1787–90
The next day Washington wrote Lafayette regarding the new Constitution, “It is now a child of fortune, to be fostered by some and buffeted by others. What will be the general opinion on, or the reception of it, is not for me to decide, nor shall I say any thing for or against it. If it is good I suppose it will work its way good, if bad it will recoil on the framers.”
Washington forecast accurately. The infant Constitution received both cuffs and caresses. The cuffs came from advocates of state authority who disliked yielding power to the central government, from radical democrats who saw insufficient guarantees of the people’s rights, and from assorted others who were, for one reason or another, attached to the status quo. Sam Adams had trouble getting past the first words of the preamble—“We, the People”—which he thought should have been, “We, the States.” Said Adams, “As I enter the building I stumble at the threshold.” Elbridge Gerry explained his refusal to sign at Philadelphia: “The constitution has few federal features, but is rather a system of national government.” This was precisely what worried another New England Antifederalist (as the opponents of the Constitution came to be called): “The vast continent of America cannot be long subjected to a democracy if consolidated into one government. You might as well attempt to rule Hell by prayer.” A Pennsylvanian, noting that the proposed Constitution would amplify the power of government, warned, “The natural course of power is to make the many the slaves to the few.” A South Carolina Antifederalist demanded of his audience, “What have you been contending for these ten years? Liberty! What is liberty? The power of governing yourselves! If you adopt this constitution, have you the power?” To which the audience thundered, “No!” Another South Carolinian recorded the reception of the proposed charter in the backcountry: “The people had a coffin painted black, which, borne in funeral procession, was solemnly buried, as an emblem of the dissolution and interment of public liberty…. They feel that they are the very men, who, as mere militia, half-armed and half-clothed, have fought and defeated the British regulars in sun
dry encounters. They think that after having disputed and gained the laurel under the banners of liberty, now, that they are likely to be robbed both of the honour and the fruits of it.”
Proponents of the Constitution rallied to its defense. The most important body of argument in favor of the new government was a series of essays by Madison, Hamilton, and John Jay entitled The Federalist. Perhaps inevitably, the affirmative case was more complicated than the negative (the opponents simply had to shout “Liberty!”); whether from this cause or some other, the Federalist papers were complex and closely reasoned, and together provided a thoughtful introduction to the theory of constitutional government. The most telling installment may have been the tenth, in which Madison countered the Antifederalist argument that the federal government would be intrinsically less democratic than the state governments. In fact, just the opposite was true, Madison asserted.
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.” A government comprising more people would be safer. “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”
The morning after the convention adjourned, the Pennsylvania Assembly reclaimed its quarters in the State House. Franklin, in his dual role as Pennsylvania president and senior delegate to the Constitutional convention, expressed his “very great satisfaction” at presenting the convention’s handiwork to the people of Pennsylvania for approval. He added his expectation that the Constitution would produce “happy effects to this commonwealth, as well as to every other of the United States.” Further happy effects for Pennsylvania, he judged, would follow from locating the new federal government in Pennsylvania. To this end, and pursuant to the clause in the Constitution about a federal district, he recommended that Pennsylvania offer the new government one hundred square miles for such a district. (Pennsylvania agreed, but the national politics of ratification eventually resulted in the federal district’s being carved out of Maryland and Virginia.) Beyond his formal recommendation, Franklin conspired in lifting the veil of secrecy surrounding the convention far enough to smuggle out his closing speech, which became a powerful argument in favor of the Constitution. Many people assumed that Franklin was the primary author of the proposed charter; his prestige added to its momentum.
It also shielded him from Antifederalist criticism. In Pennsylvania the politics of ratification was complicated by the preexisting dissension over the state constitution. Confusingly—but not illogically, given their populist predilections—most Constitutionalists in Pennsylvania politics adopted an anti-Constitutionalist position vis-à-vis the proposed national government, while most Pennsylvania anti-Constitutionalists (or Republicans) embraced the federal Constitution. Pennsylvania Antifederalists bitterly attacked the (federal) Constitution as a plot by Robert Morris and his rich friends to subvert the states and the people, the better to line their own pockets. Yet Franklin, despite his support for the Constitution, emerged largely untouched. There was good political reason for this, of course, namely, the recognition—in the words of one Antifederalist piece—that Franklin was “highly reverenced by all the people.” To the extent that Franklin’s federalism required explaining away by the Antifederalists, it was attributed to the “weakness and indecision attendant on old age.”
The Antifederalists employed other tactics instead. When ballots were circulated for delegates to the Pennsylvania convention that would decide for or against ratification, Antifederalist Constitutionalists listed Franklin’s name on their ticket, against his wishes. Antifederalists in other states turned Franklin’s words against him. “Doctor Franklin’s concluding speech, which you will meet with in one of the papers herewith enclosed,” Madison wrote to Washington from New York, “is both mutilated and adulterated so as to change both the form and the spirit of it.”
In Pennsylvania the Antifederalist efforts failed fairly quickly. The state convention met in November, and though the Antifederalists managed to stall a final vote till the following month, on December 12 forty-six members voted in favor of the Constitution, against twenty-three opposed. That afternoon a gang of celebrating sailors and shipbuilders (two groups that stood to benefit from improved commerce under the new federal government) put a boat on a wagon and hauled it through the streets of Philadelphia, shouting, “Three and twenty fathoms, foul bottom”—referring to the negative votes—and “Six and forty fathoms, safe anchorage!”
Pennsylvania’s approval enhanced the Constitution’s prospects but hardly guaranteed them. Ratification in February 1788 by Massachusetts (where Sam Adams, after stumbling at the threshold, picked himself up and endorsed the new charter) left the ratifiers three states shy of the nine specified for the Constitution to take effect. More troubling than the shortfall—which seemed almost certain to be made good—was the identity of two of the holdouts, New York and Virginia. If New York remained aloof, New England would be as cut off from the rest of America as it would have been during the Revolutionary War had Burgoyne’s expedition succeeded. And an American union was hard to imagine without Virginia, the home of Washington, Jefferson, and Madison, and the heart of the south.
Franklin entered the fray at a critical moment. In April he wrote a piece for the Federal Gazette reminding readers that even the most inspired instance of constitution-writing in all of history had come under harsh attack. When Moses descended from Mount Sinai with the Ten Commandments under his arm, had not the Israelites resisted? The Talmud told how jealous factions resented Moses and the laws he brought, saying Israel had freed itself from bondage under Pharaoh; should it now accept slavery at the hands of Moses? Franklin recognized that he was treading on treacherous, even blasphemous ground. “I beg I may not be understood to infer that our General Convention was divinely inspired when it formed the new federal Constitution, merely because that Constitution has been unreasonably and vehemently opposed.” Yet, as he had said in the convention, he could not help thinking the Deity had something to do with the project. “I must own I have so much faith in the general government of the world by Providence that I can hardly conceive a transaction of such momentous importance to the welfare of millions now existing, and to exist in the posterity of a great nation, should be suffered to pass without being in some degree influenced, guided, and governed by that omnipotent, omnipresent, and beneficent Ruler.”
Aided by Franklin’s argument, Virginia’s convention ratified in the early summer of 1788. Virginia’s approval gave heart to New York Federalists, including the merchants of New York City, who threatened secession by their city from the state if the state failed to ratify. This tipped the balance in favor of the Constitution.
Although some final vote counting remained, on the twelfth anniversary of the Declaration of Independence, the Federalists of Philadelphia held a grand celebration. A ship conveniently called the Rising Sun was anchored in the Delaware; at sunrise on the Fourth of July it fired a cannon salute to the new government and the city that gave it birth. An elaborate procession began at eight o’clock, headed by the Light Horse Troop and including units representing “Independence,” the “Alliance with France,” and the “New Era.” State and local officials marched, as did members of every conceivable guild in the city.
The place of highest honor was reserved for “His Excellency the President.” Unfortunately, Franklin’s stone kept him home that day, although he may have stirred to the sidewalk to see the procession turn onto Market Street just west of his hou
se, and he almost certainly heard the music and singing. The printers’ guild had put a press on a cart, and as it rolled along, those tending the press struck off and distributed the lyrics of a song written for the occasion by Philadelphia’s most famous printer, President Franklin himself.
Ratification of the Constitution marked the end of the Revolutionary era in American history, and a most fitting climax to Franklin’s public life. The previous October the Pennsylvania Assembly had reelected him again. He had intended to retire after his second term but lacked the resolve. “I must own that it is no small pleasure to me, and I suppose it will give my sister pleasure,” he wrote Jane Mecom the week after his reelection, “that after such a long trial of me, I should be elected a third time by my fellow citizens, without a dissenting vote but my own. This universal and unbounded confidence of a whole people flatters my vanity much more than a peerage could do.”
Yet to his relief, the Pennsylvania constitution forbade a fourth term, and as the weeks ran down to the end of October 1788, he looked forward to the retirement he had so long postponed. But because he postponed it so long, he discovered he had less to look forward to than he hoped. The excitement surrounding the Constitutional Convention had temporarily rejuvenated him. “Some tell me I look better, and they suppose the daily exercise of going and returning from the State House has done me good,” he told Jane just afterward. He even thought he might make a last trip to Boston. But a bad fall on the steps of his garden that winter sprained his wrist, bruised his hip, and aggravated his stone. His afflictions kept him away from the meetings of the Executive Council and canceled all plans to travel.
