CHAPTER VIII.

THE TREATY-MAKING POWER AS A FACTOR IN THE GREAT NATIONAL DEBATE OF 1787-8.

§ 232. Grandeur of the Constitution as a subject for study. There is no grander subject for study, no nobler theme for literature, than the Constitution of the United States, not only from historical, but also from ethical and ethnical points of observation; it is no wonder, therefore, that it has been the object of thought, study and expression of opinion, by many of the ablest legal scholars, in our own country, and also in those other countries, where the practical operation of the Constitution was watched, at first with doubt, and afterwards in wonder and with admiration.1

From the day of its promulgation as the finished work of the Constitutional Convention until the present time, essays, pamphlets, brochures, and commentaries upon, and analyses, and histories of, the Constitution have constantly appeared, until the published literature upon this single subject would, if it were all collected, constitute a library of no mean size. § 233. Difficulty of selecting extracts from prominent writers. From this great mass of learning it is difficult to select the limited number of extracts for which space can be afforded in this volume; while, however, only a few will be quoted, an attempt will be made in culling these extracts from a vast amount of corroborative expressions, to select examples which will show the general tendency of opinion of the leading publicists upon the particular element of the subject which is under discussion.

$234. Constitutional literature divided into two classes. -Constitutional literature can be divided into two classes: first, that which appeared during the progress of the State conventions, and prior to the ratification of the Constitution, and which was published for the purpose of urging, or opposing, its adoption, and which, as was natural under the circumstances, was extremely partisan in its nature, either extolling the merits, or denouncing the demerits, of the Constitution,

§ 232.

1 See Gladstone's statement quoted in § 168, p. 292, ante.

"The Federal Constitution has survived the mockery of itself in France and in Spanish America. Its success has been so great and striking, that men have almost for

gotten that, if the whole of the known experiments of mankind in government be looked at together, there has been no form of government so unsuccessful as the Republican." Popular Government, Henry Sumner Maine, London, 1885, p. 292.

according to the views of the respective authors; second, that which has been written and published since the Constitution has become the greatest factor in our organic law, and which includes all that has been written for the purpose of expounding, interpreting and construing its various provisions, or reviewing them from historical and legal standpoints.

235. Pre-ratification literature a large element in procuring adoption of the Constitution.-To the first class of literature the adoption of the Constitution was largely due. The able work of its sponsors and defenders in the State constitutional conventions was, of course, the prime factor in procuring its ratification in eleven of the thirteen States; at the same time, however, that the State conventions were in progress a great national debate was conducted in the newspapers, and also by the publicists of the time. It was an age of pamphleteering; many of the most prominent Federalists and Anti-Federalists published their views on the subject under assumed names-generally classic, but sometimes provincial-according to the then prevalent custom.1 The records of this great debate form a valuable part of our National literature, and in collecting, collating and publishing them in a convenient and lasting form Paul Leicester

§ 235.

Federal Farmer," credited to Richard Henry Lee; "Marcus," credited to James Iredell; "Civis," credited to David Ramsay; "A Columbian Patriot," credited to Elbridge Gerry; "A Citizen of America," credited to Noah Webster; “A Citizen of New York," credited to John Jay; "A Plebeian," credited to Melancthon Smith; "A Citizen of Philadelphia," credited to Peletiah Webster; "Fabius," credited to John Dickinson; "Aristides," credited to Alexander Contee Hanson; "An American Citizen," credited to Tench Coxe; letters of Edmund Randolph, James Wilson, Luther Martin, Hugh Williamson,

1 The following names appear in Ford's Collection of Essays and Pamphlets: "Cassius," supposed to be written by James Sullivan; "Agrippa," credited, though not definitely, to James Winthrop; "A Landholder," generally credited to Oliver Ellsworth; " ACountryman" and "A Citizen of New Haven," both credited to Roger Sherman; " Cato," credited to George Clinton; "Casar," credited to Alexander Hamil ton; "Sydney," credited to Robert Yates; "Caution," credited to Samuel Chase; "A Friend of the Constitution," credited to Daniel Carroll; "A Plaindealer," credited to Roane Spencer; "A Letter of a and others appeared over their own Steady and Open Republican," | names. credited to Charles Pinckney; "A

Ford has rendered an important service to his country, and one which is, and always will be, appreciated by students of constitutional history.?

§ 236. This chapter devoted to pre-ratification literature. -This chapter will be exclusively devoted to the literature of the pre-ratification period, and the succeeding chapter to that which has been produced since the Constitution became the law of the land.

§ 237. The Federalist; its appearance and its effect.The foremost position in the list of pre-ratification literature must be given to the eighty-five numbers of the Federalist,1 which, appearing under the single assumed, and at that 2 The best collection of these pam- An extensive bibliography of this phlets can be found in two volumes: class of Constitutional literature Pamphlets on the Constitution will be found at pp. 385-441 of the of the United States, published" Pamphlets," which will also be during its Discussion by the People, 1787-1788, edited with notes and a Bibliography, by Paul Leicester Ford, Brooklyn, N. Y. 1888.

Essays on the Constitution of the United States, published during its Discussion by the People, 1787-1788, edited by Paul Leicester Ford, Brooklyn, N. Y., Historical Printing Club, 1892. § 237.

found as an appendix to the second volume of Curtis' Constitutional History of the United States.

Some of the pamphlets and essays published in Pennsylvania will be found at the end of McMaster and Stone's Pennsylvania and the Federal Constitution.

See also § 250 and note thereunder, p. 387, post.

There are over twenty-four different editions of the Federalist enumerated in Paul Leicester Ford's bibliography of the Constitution, compiled in 1888 and included as an appendix to his Pamphlets on the Constitution. Ford's bibliography is also found at pp. 709, et seq. of volume II of Curtis' Constitutional History of the United States; a list of 24 editions will also be found in Lodge's Federalist, pp. xxxv, et seq. The author of this volume has consulted four editions of the Federalist, compiled and annotated respectively, by Henry B. Dawson, Henry Cabot Lodge, Paul Leicester Ford and J. C. Hamilton. References will not be given in notes to the extracts from the Federalist in this, and the succeeding sections, as editions vary as to paging, but the numbers are practically the same in all; the only change being that the insertion of No. XXX in modern editions makes a difference of one in subsequent numbers (see Dawson's edition, p. lv). The author has followed the text in the edition edited by Henry Cabot Lodge and published by G. P. Putnam's Sons, New York and London, 1894.

§ 237 time unrecognized, name of Publius, stand as a monument to the joint and co-operating genius of Hamilton, Madison and Jay, whose efforts as delegates to the Federal and State conventions, and as authors of the Federalist, undoubtedly accomplished more practical results than those of any other three men in originally framing the Constitution in the Federal Convention, and finally procuring its ratification by the States. It not only served its purpose in America, in advocating the adoption of the Constitution, but it has also taken its place in Europe as a text book of high authority on popular government.2 The Supreme Court of the United States

2

AN ENGLISH VIEW OF THE FEDERALIST.

"The antecedents of a body of institutions like this, and its mode of growth, manifestly deserve attentive study; and fortunately the materials for the inquiry are full and good. The papers called the 'Federalist,' which were published in 1787 and 1788 by Hamilton, Madison, and Jay, but which were chiefly from the pen of Hamilton, were originally written to explain the new Constitution of the United States, then awaiting ratification, and to dispel misconstructions of it which had got abroad. They are thus, undoubtedly, an ex post facto defence of the new institutions, but they show us with much clearness either the route by which the strongest minds among the American statesmen of that period had traveled to the conclusions embodied in the Constitution, or the arguments by which they had become reconciled to them. The 'Federalist' has generally excited something like enthusiasm in those who have studied it, and among these there have been some not at all given to excessive eulogy. Talleyrand strongly recommended it; and Guizot said of it that, in the application of the elementary principles of government to practical administration, it was the greatest work known to him. An early number of the 'Edinburgh Review' (No. 24), described it as a 'work little known in Europe, but which exhibits a profundity of research and an acuteness of understanding which would have done honour to the most illustrious statesmen of modern times.' The American commendations of the Federalist' are naturally even less qualified. 'I know not,' wrote Chancellor Kent, of any work on the principles of free government that is to be compared in instruction and in intrinsic value to this small and unpretending volume of the 'Federalist; ' not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the freshness, patriotism, candour, simplicity, and eloquence, with which its truths are uttered and recommended.' Those who have attentively read these papers will not think such praise pitched, on the whole, too high. Perhaps the part of it least thoroughly deserved is that given to their supposed profundity of research.