The third part of our trilogy is that of constructive statesmanship. The Declaration of Independence, like a sharp knife, cut the tie that bound the colonies to the throne. Each fell back upon its own inherent sovereignty, and each with the exception of Rhode Island formed for itself a Constitution, local, separate and apart. But all were engaged in a common defensive warfare. On the very same day that a committee was appointed to draft a Declaration of Independence, a committee was appointed to draft Articles of Confederation 'and Perpetual Union. The draftsmen, principally Franklin and Dickinson, were not without experience or material. Combinations or leagues had been frequently attempted. There was the New England Confederation against the Dutch and Indians in 1643; in 1697, William Penn had proposed a plan for a Congress of Colonial Deputies to consider general questions of trade and defensive war. 1754, there was The Albany Convention, of which Franklin was the ruling spirit. In 1765, there was the Stamp Act Congress"the Day Star of the Revolution " as John Adams called it. In 1774, there was the First Continental Congress, with its declaration and resolves which called forth the splendid encomium of the Earl of Chatham. The Articles of Confederation were reported out in December, 1776, in the darkest hour of the great struggle. It took a year of subsequent debate in the Continental Congress to settle their terms, and it was not until four years more had passed that the requisite nine States had ratified them. From Lexington, in April, 1775, to the surrender of Cornwallis, in September, 1781, there was no Federal Government. The Continental Congress was not a government. It had eyes and ears but it had no hands. It could see the naked and shivering soldiers in the camps, and could hear the cries of state governors for aid, but it could not help them. It lacked an executive; it lacked a judiciary; it lacked a legislature with power to act. It was but an assembly of state delegates without power to bind their states, meeting in a single chamber, presided over by a moderator of debates. It could appoint committees to report ordinances and resolves, but these, through the inherent weakness of the referendum as an agency of government, could only become effective if ratified by nine states, and even then depended upon state action for their enforcement. It could emit bills, but it

had no credit. It had no power to tax even for necessary revenue. It could not touch the person or the property of the individual citizen. It could not command his allegiance. It could not punish his disloyalty. In short, it could declare everything, but do nothing.

When the Articles were ratified the war was practically over, and they proved incompetent to cure the ills of state. Ruin, despair, dishonor and disorder ensued. Shay's rebellion reared its horrid crest in Massachusetts, the army mutinied, and the Continental Congress that had braved King, Lords and Commons fled from Philadelphia to Princeton when threatened by a squad of rowdies commanded by a sergeant. I need not dwell upon details. The story is tersely told by Washington when he wrote "It is a half starved limping government, moving upon crutches and tottering at every step." No one more clearly saw than he the needs of the hour. To James Warren he wrote: "To me it is a solecism in politics, indeed it is one of the most extraordinary things in nature that we should confederate as a nation, and yet be afraid to give the rulers of that nation sufficient power to order and direct its affairs. The necessity of a controlling power is obvious, and why it should be withheld is beyond my comprehension." To "Light-horse Harry" Lee, who had appealed to him to use his influence in quelling a riot, he exclaimed: "Influence is not government. Let us have a government by which our lives, our liberties and our property shall be secured and preserved, or let us know the worst at once." To Benjamin Harrison, Governor of Virginia, he wrote: "The disinclination of the individual states to yield competent powers to Congress for the Federal Government, their unreasonable jealousy of that body and of one another, and the disposition which seems to pervade each of being all wise and all powerful within itself, will, if there is not a change in the system, be the cause of our downfall as a nation. This is just as clear to me as the A, B, C, and I think we have opposed Great Britain, and arrived at the present state of peace and independence, to very little purpose, if we cannot conquer our own prejudices."

Happily these views prevailed. A conference was held at Mt. Vernon, followed by the Annapolis Convention, attended by but five states, and then in May, 1787, the Federal Convention

met. By September the Constitution of the United States was framed.

The chief problems that arose involved the delegation, distribution and regulation of power. Following the Declaration of Independence, the states, with the exception of Rhode Island, had framed constitutions for themselves. These, so far as the delegation of power to the Federal Government was concerned, were formidable obstacles. Each State claimed to be a separate sovereignty and was reluctant to surrender its newly acquired dignity. The ill starred Articles of Confederation stood as an awful warning against the dangers of selfish jealousy in adhering to insufficient grants, and supplied the broad minded and far seeing members of the Convention with arguments too strong to be overcome. As debate went on the national idea prevailed, and "We the People of the United States" became the opening words of the Preamble. In the distribution of power the State Constitutions stood as crude but interesting original studies, imperfect though they were. In none of them was there a clear cut cleavage between legislative, executive and judicial functions. Plural executives, unicameral chambers and indistinct conceptions of judicial authority choked the way. Fortunately the value of a system of checks and balances was not new to the Framers. The great work of Montesquieu, which had appeared in 1748, in which he had dwelt with impressive emphasis upon the wisdom of separating legislative, executive and judicial powers, was familiar to Americans, and years before 1787 had provoked an intellectual struggle, with the storm center in Pennsylvania. Franklin, with blood heated by a long struggle with the Penns, who had the chartered family right as proprietors to appoint the Governor, believed in the concentration in a single house of all effective checks upon an executive. Two assemblies appeared to him like a wagoner descending a hill, hitching half of his team to the hinder part of the wagon and driving it up hill, while the pair before and the weight of the load overbalanced the strength of those behind pulling against the grade. When the learned doctor reached France his views were applauded by Turgot and the Abbé De Mably. On the other hand, John Adams in Massachusetts, Richard Henry Lee in Virginia, and Dr. Price in England upheld the views of Montesquieu. The

scale was turned, as is always the case with Anglo-Saxon people, by political experience. In Virginia, the oldest of the colonies, the burgesses first met in the same room with the Governor, but it was not long before the example of Massachusetts was followed, where, as early as 1635, a dispute having arisen between factional deputies, a split into two bodies took place, which in time led to the formation of two houses. Similar results followed in the other colonies, with the exception of Georgia which became enamored of the Franklin idea. Local conditions, and institutional habits in the majority of the states rather than the model of the British Constitution, shaped the state constitutions, and these cooperating with the discussion over proportional representation antagonized by the fears of the larger states entertained by the smaller ones, resulted in the adoption of the Bicameral feature of Congress.

The dread of a King in a single Executive finally gave way to the greater dread of the inefficiency of plural executives.

In the Regulation of the legislative and executive departments. under the provisions of a written constitution the Framers established the Judiciary, in words which, as expounded by John Marshall, have proved to be the sheet anchor of the Constitution. Too little attention has been paid by our jurists to the fact that during the first five years prior to the meeting of the Federal Convention, state judges in Virginia, New Jersey, New York, North Carolina and Rhode Island had asserted the supremacy of a written state constitution over conflicting acts of their legislatures. It is no less significant that three of these judges, George Wythe and John Blair, of Virginia, and David Brearley, of New Jersey, were members of the Convention as also were Alexander Hamilton, of counsel in the New York case, and James Wilson, who in an argument against a legislative repeal of a charter in Pennsylvania anticipated the doctrine of the Dartmouth College Case; while Richard Dobbs Spaight, a member of the Federal Convention from North Carolina, had received during the sessions a letter from James Iredell of the same state, in which with the utmost precision and strength he urged the subsequently familiar doctrine of Marbury vs. Madison.

The era of constructive statesmanship was at an end and our trilogy is complete.

I have often entered the room where the debates were held in the old State House in Philadelphia, and reverently facing the chair, in which Washington had sat, endeavored to conjure up the scene. I have been there alone when there was no one to interrupt my musings. I was encompassed by the spirits of the men who had filled history with their deeds and the earth with their renown. I could feel the presence of Franklin, of Wilson, of Madison and of Morris. I could thrill beneath the touch of Hamilton, Rutledge, and the Pinckneys, and hear the voices of Randolph and Paterson as they opened up the merits of their respective plans. I could listen to Oliver Ellsworth and to Roger Sherman. I could see John Dickinson, with hair as white as wool, and the eager face of the youthful Nicholas Gilman. I could read the agitations, the passions, the ambitions, and even the visions that stirred the breasts of those gravely deliberate men. I could see Washington in the midst of them and the air seemed to vibrate with his solemn admonition: "If, to please the people, we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and honest can repair: the event is in the hands of God." I was intellectually in the presence of the most renowned statesmen of their day. They were the Vulcans and the Titans of our politically constructive age. The fires of the Revolution were still hot in their furnaces; their thews and sinews had been hardened by the chill of privation; their minds had been trained by selfdiscipline; their eyes were bright with the inspiration of a great faith. Their lips were set with the grimness of their purpose; their united wisdom was the fruit of practice in the art of selfgovernment. Themselves the children of the past, they were the architects of a new world, and the temple that they built was to contain the altar of the best and brightest hopes of an agonized old world.

Who were these men, and how was it that they built so wisely and so well? Although revolutionists, they were not wild eyed theorists, ranters for license, preachers of anarchy or foes to property. They had neither the cowardice nor the cunning of demagogues. They did not build in the darkness of a total eclipse of the past, but in the broad and wholesome sunlight of their own experiences, and those of their sires. They preserved in their