Corporations in the Early United States, Part II: Hamilton, Jefferson and the Bank of the United States

As I recall I've mentioned previously, the financial situation in the United States during the years of the Revolution and its immediate aftermath was more than a little precarious. In the interest of providing a bit more depth on certain topics, a brief overview of the American experience with banking in general up until 1790 will follow.

 In order to purchase supplies abroad the Continental Congress was forced to borrow millions of dollars from its European allies (France and the Netherlands chief among them) while at the same time possessing no obvious mechanism to repay the debts that resulted. At the same time domestic costs were paid for by the issuance of Continental Currency, a type of paper bill printed on the authority of Congress and totalling, by the end of the war, almost $250 million. Unfortunately, because Congress wasn't able to control the supply of money by either taxing it or selling bonds, the value of the Continentals depreciated rapidly. This loss of value was aided by the fact that the states themselves issued bills of credit in their own names, and by successful British attempts to counterfeit the Continentals and pass them into circulation from their headquarters in occupied New York City. By the end of 1778, three years after their first issue, the Continentals had lost all but 1/5 of their value; by 1780 they’d sunk to 1/40.

In 1782 an attempt to remedy the situation materialized in the form of the Bank of North America. The brainchild of Superintendent of Finance Robert Morris and his ally and confidant Alexander Hamilton, the purpose of the bank was to help fund the war effort by establishing a stable national currency in the United States. The bills of credit issued by the bank were to be backed by a public offering of 1000 shares at $400 each. In addition to those purchases made by private citizens, most of the shares were paid for by Morris with hard currency either loaned from France and the Netherlands or contributed from his own personal fortune. The paper currency that was issued by the bank as a result was then permitted to be used as payment for taxes owed to either the federal government or many of the state governments. This created a mechanism of control over the money supply in order to prevent the runaway inflation that had plagued the Continentals. Unfortunately the Bank of North America operated under a distinct set of limitations that prevented it from becoming the national institution its federal charter envisioned. For one, it didn't operate in more than a handful of states. Controversy over the legality of Congress incorporating a national bank led to the BNA seeking charters from the states instead. Subsequently in its day-to-day operations the Bank of North America operated more like a commercial bank that happened to be headquartered in Philadelphia. This tendency was amplified by Morris’ dominant role as the institution’s chief financial backer. In an effort to prevent inflation Morris recommended that Bank of North America notes should not be used in private transactions, and in high risk situations even took to issuing bills of credit backed by his own fortune rather allow potential harm to come to befall the bank’s credit. Public use of BNA notes was thus far more limited than originally intended. When the Revolutionary War concluded in 1783 Congress removed its deposits and the Bank of North America reverted to the status of a Pennsylvania-chartered state bank, which in many ways it had always been.

While the Bank of North America succeeded in securing some much-needed funding for the American war effort during the latter years of the Revolution, it failed to alleviate the financial woes that plagued many of the states. Congress as well as the various state governments remained severely in debt, and because of the weaknesses inherent in the Articles of Confederation there existed no way for the federal government to reliably collect taxes in order to pay off its obligations. At the same time, the limited scope within which the Bank of North America operated ensured that most Americans continued to be unfamiliar with the fundamental principles behind banking and the day-to-day realities of how such financial institutions operated. Unlike in Great Britain, where in the 18^th century a multitude of private and county banks flourished, people living and working in the United States in the 1770s and 1780s existed in a world where, in addition to coined metal, private wealth was the basis of most transactions. Between merchants, bills of credit were often issued in exchange for goods or services rendered with the understanding that they would be paid at a set date. These bills could be passed on to others as payment for additional goods or services, and in essence functioned as a form of paper money. Those individuals who had accrued large sums of money over the course of their career likewise provided most of the loan capital and subsisted on the accumulated interest. Banking in the European tradition, as facilitated by a mix of private and public corporations, only became necessary in the United States during the Revolutionary War with the need to very quickly raise very large sums of money.

As the delicate economic situation of the United States had been a chief motivator for the calling of the Philadelphia Convention of 1787 and the drafting of a new federal constitution, providing a remedy was among the first major efforts the newly-formed government attempted. Alexander Hamilton, delegate to the Philadelphia Convention from New York and Robert Morris’s erstwhile collaborator, was appointed the first Secretary of the Treasury in 1789 and very quickly brought to the attention of Congress a set of linked proposals he believed would stabilize the economic prospects of the United States. Among the measures he suggested, in his Second Report on Public Credit, was the incorporation of a national bank.

For the record, nowhere in the United States Constitution are the words “bank,” “charter” or “incorporate” utilized. Indeed, the very concept of Congress or any other branch of the federal government possessing a right to issue charters of incorporation is entirely absent. This became an issue for those who considered themselves strict constructionists, believing that that meaning of the Constitution was best determined by as plain a reading of the text as possible. Thomas Jefferson, then Secretary of State, was chief among them, and pointed out at length that the incorporation of a national bank was fundamentally beyond the remit of Congress. Many present at the Philadelphia Convention, however, likely took it for granted that the power of a governmental body to issue such charters was among the standard legislative repertoire that had been established during the colonial era. That the government framed by the Constitution, about as robust as most Americans had ever seen, would lack such a basic legal prerogative would doubtless have seemed strange to some. To this it should be added that the Constitution explicitly states that Congress possesses the right to, “borrow Money on the credit of the United States,” “coin Money, regulate the Value thereof, and of foreign Coin,” and, “provide for the Punishment of counterfeiting the Securities and current Coin of the United States.” While Jefferson claimed that the Treasury Department could have accomplished these things without the need for a national bank, Hamilton and his supporters once more drew on the Necessary and Proper Clause for validation. This sentence at the end of Article I, Section 8 states that, in addition to all of the rights already declared, Congress also has the ability, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” A national bank, Hamilton argued, was necessary (“needful, requisite, incidental, useful, or conductive”) to the accomplishment of the stated aims, and was at the same time not strictly prohibited by the text of the Constitution.

 On their own, Hamilton’s arguments in favour of a national bank are numerous, and in all likelihood could be collected into a not insubstantial volume. That being the case, and the theme of this series being specifically the opinions expressed by the Founders vis-à-vis corporations, I’ll restrict the spotlight I choose to shine to those contentions that I feel touch upon that topic. In that spirit I turn first to the aforementioned Second Report on Public Credit.  

 The first of three reports delivered to Congress concerning the economic prospects of the newly formed United States government, Hamilton’s Second Report was presented to that legislative body in December, 1790. A lengthy and well-argued document, befitting the meticulous Hamilton, it argued strongly in favor of the formation of a national bank on the grounds that, among other things, it would increase the productive capital of the United States, decrease incidents of various financial calamities, and strengthen the federal government by making it easier to collect tax revenues and receive foreign loans. Amidst the various points that Hamilton brought to bear was the common refrain that a national bank was a public entity whose primary beneficiaries would be, directly or indirectly, the citizens of the United States. The institution that Hamilton proposed was not just another commercial bank, of which the United States possessed a good number already, but a “national bank,” or “public bank,” that would become a “nursery of national wealth,” render financial assistance to the federal government in times of emergency, and facilitate the payment of federal taxes by making loans available for that purpose. He made no secret of the fact that it was a species of corporation he was promoting, and went into significant detail describing the sale of shares, the circumstances of annual shareholder meetings and the distribution of dividends, but the greatest benefits he seemed keen to reserve to the United States government and the American public.

The capital of the national bank, meaning the sum total of currency it would be entitled to loan out as a factor of the total amount of hard currency it possessed, was one of the things which critics of the proposal believed was most rife for abuse. Paper money printed in excess without being backed by a form of stable, material wealth (in the 18^th century, gold and/or silver), they argued, could lead to rapid devaluation, rampant speculation, and general economic calamity. Hamilton’s Second Report responded to this claim by once more pointing to the degree of public accountability under which the proposed national bank would function. It would be the domain of the legislature that created the bank, he stated, to set or adjust the limit of its capital in such a way as to both facilitate the expansion of business and trade as well as provide for the security of the public. Another criticism levelled at the model Hamilton proposed was the degree to which it would allow foreigners to purchase shares of the bank and thereby benefit from or influence the financial affairs of a country not their own. Admitting that foreigners would be entitled to both own bank stock and collect half-yearly dividends as a result, Hamilton asserted in his Second Report that the benefits these alien investors brought with them would be far in excess of what they might potentially extract. Purchases of bank shares by any source would bring in hard currency (again, gold and silver) that would serve to increase or at least solidify the institution’s existing capital; this capital in turn would be at the behest of American citizens whose economic activities directly enhance the overall wealth of the United States. While in either case, concerning overall capital or foreign investors, there existed the potential for abuse Hamilton believed this was hardly reason for outright disapproval. “If the abuses of a beneficial thing are to determine its condemnation,” he wrote, “there is scarcely a source of public prosperity which will not speedily be closed.” Though a national bank would inevitably benefit certain individuals more than others, and even generate a degree of harm if improperly managed, to Hamilton it was still a source of, “general profit and advantage.” The American public, he seemed keen to point out, would still exercise control over certain aspects of the proposed bank, and would draw the greatest share of the advantages it promised. 

The number of times that Hamilton returned to this chorus, of public oversight and public benefit, in his proposal for a national bank would seem to indicate that his conception of the purpose of at least some kinds of corporations was based on the concept of public utility. A national bank, he wrote, would protect merchants from unforeseen economic shocks (by providing credit), increase the quantity of hard currency in the United States (by facilitating foreign trade), and stamp out the speculation and financial instability of the post-Revolutionary era. Amidst these claims there was little talk of customers, private property or shareholders and a great deal of public good, public accommodation and the, “security of the community.” Though again Hamilton made no effort to obscure the fact that the proposed bank would be privately administered and financed by primarily private capital, he stated with equal candor that, “public utility is more truly the object of public banks than private profit. And it is the business of Government to constitute them on such principles, that, while the latter will result in a sufficient degree to afford competent motives to engage in them, the former be not made subservient to it.” Accepting the fact that Hamilton may have simply been phrasing his proposal just so as to assuage the fears of those who were unfamiliar with banking or felt the practice was inherently corrupt, it would at least appear that his take on the mixed public/private corporation that is the national bank leaned heavily in the direction of the public aspects.

From where Hamilton derived his particular conception of national banks, and perhaps of nationally-chartered corporations in general, is also evident in his Second Report. Near the end of his lengthy proposal, after explaining the utility of allowing the bank to accept United States public debt as payment for bank shares, Hamilton saw fit to put forth an example of a similar national institution which functioned successfully on the same grounds. Specifically he referred to the Bank of England, chief financial institution of the Government of Great Britain. Like the proposed Bank of the United States, the Bank of England was a privately owned corporation (charted in 1694) that provided government access to credit and issued bank notes. The very existence of the Bank of England, Hamilton was keen to point out, was based on a loan to the British government and the resulting debt (£1,200,000). That this same institution, in the decades that followed, was able to augment its capital to something on the order of £12,000,000 while at the same time helping to propel Great Britain to the status of unequivocal world power was doubtless considered by the Treasury Secretary as a mark in its favour, and cause for emulation. This unabashed praise of the Bank of England by Hamilton would seem to be the most revealing of all the argument he put forth in his Second Report. While most Americans in the 1770s and 1780s would have been at least somewhat familiar with the type of corporations that had typically been chartered during the colonial era in order to provide building or maintenance services, they might only have had limited knowledge of the more complex, explicitly profit-driven corporate institutions that were the mainstay of European empire, such as national banks or trading companies. Hamilton was doubtless familiar with both, but it was the latter that were most essential to his vision of the potential and prosperity of the United States of America.

Though they had doubtless facilitated their share of abuses, and would go on to do so, the Bank of England or the British East India Company were primarily sources of wealth, prestige, and power for Great Britain during the 17^th, 18^th and 19^th centuries. By allowing the personal wealth of their shareholders to primarily finance their activities they allowed Britain to expand its economy and trade network at a relatively low cost to the government and the average British taxpayer. Hamilton, it seemed, envisioned something similar for the United States; the use of private resources backed by government approval, used to accomplish public ends. While some might have questioned the propriety of placing control of national monetary policy in private hands, or giving what was essentially carte blanche to a group of independently-minded entrepreneurs, Hamilton likely saw the utility of nationally-charted corporations as being rather obvious. Something of an anglophile – a fact which often played to his detriment – his estimation of the surest path for the United States to pursue toward power and prestige on the world stage was very much rooted in the model set by Great Britain during the 17^th and 18^th centuries. At the core of this model was the creating and expansion of a national banking system along with a stable currency. At the same time there was also inherent in the United States Constitution, which had recently been adopted and which Hamilton had a hand in shaping, a realist and utilitarian approach to some of the less flattering aspects of human nature. Just as the notion of creating a strict separation of powers was an attempt to channel personal ambition in such a way as to ensure that no one branch of government was able to dominate the others, the chartering of corporations on the British model was a means of utilizing the inherently avaricious qualities of capitalism for the benefit of the public.

Though he was but one of the many prominent individuals whose efforts shaped and guided the direction of the United States during its early decades, Alexander Hamilton was in many ways the exemplar of a highly influential intellectual strain of American nationalism. An arch-Federalist, realist, utilitarian and anglophile, Hamilton believed in strong central government, regarded manufacturing and other mercantile interests as the key to sustainable economic growth, and saw corporations as essential tools in achieving both of these ends. Certainly, he granted, the shareholders of these corporate entities stood to profit to a greater extent than the average citizen, and may even abuse the privileges granted them via incorporation, but this was hardly cause to abandon the scheme altogether. Public good was public good; so long as a corporation served that end, be it by issuing paper currency, distributing loans, conducting foreign trade or building a bridge, it fulfilled its purpose and justified its existence. If it did not; if its net benefit to society at large was negligible and a grant of corporate privilege would only serve to enrich private wealth further, then no such grant was called for. It was not a perfect arrangement – Hamilton being a man who seemingly did not believe in perfection – but its success was proven by experience.   

Mr. Jefferson, as was so often the case, did not agree.

Corporations in the Early United States, Part I: An Introduction

For the next several weeks, of perhaps even months, I'm going to be trying something a little different. I do hope that you’ll bear with me.

Not long ago I had a conversation with a friend of mine who, bless him, reads this very blog. In the course of our discussion he speculated as to what the Founding Fathers’ general opinions might have been on the topic of corporations. This, I agreed, was a very topical line of inquiry, and it very quickly set me to thinking. Corporations, as I explained to my friend at the time, served a different purpose in the late 18^th and early 19^th centuries than they do here at the dawn of the 21^st. The multi-national conglomerate entities which we now associate with the word “corporation” would have been almost completely beyond the experience and understanding of the Founders. That being said, at least one type of corporate entity very common in the present day did exist in substantially the same form in the 18^th and 19^th centuries, and was well known to many among the Founding Generation. I refer, of course, to banks.

Though they have greatly increased in complexity, and in the number and kinds of financial operations they carry out on a day-to-day basis, banks have existed in their modern form since at least the 14^th century. Originally a product of the Italian Renaissance, banks spread throughout Europe in the centuries that followed. Over time, with the establishment of state banks and the permanent issue of paper currency, places like Amsterdam and London became regional banking centres whose influence reached, in some cases, across the globe. More to the point, however, banks and banking have figured heavily in the history of the United States about as long as that entity has existed. In order to achieve their independence from one of the wealthiest empires in human history the American revolutionaries required plenty of capital, only a modicum of which could be collected in taxes. State banks, and later the federally-chartered Bank of North America, provided much of the credit required by the war effort. Since its very inception, therefore, the prospects and prosperity of the United States have been inextricably linked to a particular species of corporation. This fact, however, has not always been met without controversy.

Indeed, banking has been at the core of any number of national controversies that have enveloped the United States over the course of its two and a half centuries. Within the first fifty or sixty of those years debates over the philosophical and social acceptability and financial necessity of banks were particularly intense. Passionate as they were about concepts like natural rights, public service and republicanism, the Founders could be similarly fervent on the subject of debts, interest rates, and loans. At times practicality seemed to win out, as when the First Bank of the United States was chartered in 1791 in an effort to stabilize the nation’s rather delicate financial state, and in other instances higher principles ruled the day, as when the United States government almost went bankrupt trying to fund its half of the War of 1812 without the use of a national bank. Charting these shifting cultural and institutional opinions on banks and banking over the course of the first half-century of American history provides a fascinating window into the growth and evolution of the United States from a philosophical experiment into a modern nation state. This was not always a linear process, however. Backlashes against the principle and purpose of banking were not infrequent, and at times originated in the highest echelons of power.

Bearing that in mind, I propose to survey the changing attitudes towards banks in the early United States by examining the words of some of the Founders on the subject. These will include works by Alexander Hamilton, Thomas Jefferson, James Madison and John Marshall, among those I’ve discussed previously, as well as several by newcomer Andrew Jackson. Granted, though Jackson is not traditionally included among the group commonly labelled the “Founding Fathers,” I think there’s an argument to be made that he did as much to shape what we've come to recognize as the modern United States as any of those august personages just mentioned. The timeline of this feature series, or whatever you want to call it, will thus stretch from about 1790 until the late 1830s. In another break with the usual format I plan on devoting only one or two entries to each document, provided liberal context throughout. As per usual, however, I will include relevant links to the original document(s) at the bottom of the final entry on that topic.

Before I close this inaugural entry I’d like to take a moment to clarify a few things. Specifically, I’d like to discuss how the Founders understood the term “corporation,” and what they regarded the purpose of such entities to be.

Finding its origins in Ancient Rome, the role of the corporation as it evolved in the European tradition was as a legal entity with accompanying properties, rights and privileges that existed independently of its owners or officers. Corporations could thus sue and be sued, own buildings or other resources, and continue to function regardless of the death of their founders or other fluctuations in their ownership. Aside from banks, some of the most prominent early modern corporations in Western Europe took the form of joint-stock companies. These entities were granted a charter of incorporation by the relevant legal authority (the Crown of England, or the States General of the Netherlands, for instance) that effectively ceded a portion of that authority’s power for a strictly stated purpose. Shares in these companies were sold to the public in order to raise money for, say, trading ventures in Asia and Africa, and in exchange the corporations paid out healthy dividends. The British and Dutch East India companies were arguably the most famous of these types of corporations, and functioned as effective extensions of state power that made use of private capital. The London Company and the Plymouth Company, who between them attempted to settle most of the Eastern seaboard of North America, were also joint-stock companies, chartered by James I in the 17^th century in order to settle and exploit the natural resources of what would become Virginia and Massachusetts. In spite of their private means of finance, however, these corporations enjoyed extensive support from the governments that had chartered them. In addition to military aid, which the East India Companies in particular required in order to function in at-times hostile trading environments, they often requested and received monetary assistance during occasions of economic hardship. Because many of these corporations succeeded in attracting large numbers of shareholders, many of them wealthy members of the merchant elite, a declaration of bankruptcy would have had a potentially disastrous economic effect. Corporation in this era were therefore generally understood to be neither wholly public nor entirely private institutions, but rather blended elements of each.  

In addition to these large, in some cases globe-spanning financial and mercantile entities, there existed a much more prosaic class of corporation in the European tradition that served to provide a variety of construction, maintenance, educational and infrastructural services. During the colonial era it was not unheard of for the legislatures of, for instance, Massachusetts or New York, to grant a charter of incorporation to a private business as a form of government contract. The business in question, tasked with maintaining roads, building bridges, or cleaning the streets, would be permitted to exercise certain functions otherwise exclusive to the government for a set period of time and at a set rate of pay. Institutes of higher education, often operated by the established churches, received charters as well. These documents granted the schools, like Harvard or the College of New Jersey (now Princeton), legal rights, the ability to own property, and access to public funding while also clearly delineating their civic obligations. In either case it was understood that the purpose of incorporation was to make use of private money, expertise and resources in order to achieve an end determined necessary to the public good. The colonies themselves were another type of corporation, all of them having either received their charters from the Crown or having enjoyed Crown approval of an existing charter. Within the context of the 17^th-and-18^th-century British Empire these charters where highly prized and closely guarded because of the strict limits they placed on outside interference by the Crown or Parliament. Opinions in America concerning the purpose and necessity of corporations changed greatly, however, in the years following the Revolution.

Political independence and self-government in the newly declared United States brought with it a kind of egalitarian fervor that greatly disdained the institutionalization of certain kinds of economic or social classes. While legal restrictions on people’s ability to vote or stand for office remained in place, and slavery in many states was still stubbornly supported, efforts were made by many of the Revolutionary elite to place legal and social conditions in their respective states on a somewhat more equal footing than had previously been the case. Corporations were among those existing elements that reformers set their sight on. It was their opinion that because charters of incorporation granted to a select body a set of advantages not enjoyed by the majority of the population that they were at odds with basic republican principles. Accordingly, many of the state constitutions that were written in the 1770s and 1780s contained provisions that either severely limited or outright prohibited the ability of future governments to charter new corporations. The Constitution of Massachusetts (1780), for example, stated explicitly that, “No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public.” In spite of these legal restrictions, however, state governments became aware all too quickly that they simply did not possess the resources to see to every one of the responsibilities they claimed. Because legislatures in the 1780s were generally loath to raise taxes, states never seemed able to pay for the initiatives their political leaders devised. Corporations, the public utilization of private wealth, were the obvious solution.

This practical concession now made, the philosophical objections to government-sponsored privilege were met with a re-evaluation of the purpose of incorporation and its traditionally exclusive nature. Rather than try to restrict or abolish the granting of charters, which simply wasn't feasible, incorporations began to be distributed far more widely in the 1780s and 1790s than in the entirety of the colonial era. This expansion of the number and variety of corporations existing in the United States was facilitated by the fact that many state representatives were involved in the businesses that were being chartered. Accompanied by the high turnover present in the legislatures, it became common for special interests not previously eligible for incorporation to be granted such a privilege when one of their members was himself elected to the state assembly. In spite of these outwardly selfish motivations, concern for public welfare played a role in the growing number of incorporations as well. Anxious to discourage the formation of monopolies, states began to charter multiple corporations of the same type as a means of spurring competition and, theoretically at least, keeping prices low. Multiple ferry companies or banks were believed to ensure that no one corporation would be able to abuse its privileges to the detriment of the public, foster innovation, and guarantee that valuable goods and services were available to as many people as possible.

As an increasing number of charters were granted to more and more diverse interests and organizations in America, many states began to re-evaluate the process by which corporations had traditionally been formed. Rather than grant incorporation as a direct act of the legislature, as had been the case previously, many states began to move towards general incorporation laws. These statutes laid down a set of standard requirements that had to be met in order for a given organization to meet the status of corporation but otherwise required no direct or specific approval on the part of lawmakers. These kinds of flexible regulations extended corporate status to not only religious establishments, institutes of higher learning, and banks, but to any number of manufacturers and entrepreneurs to whom the term corporation would not have previously applied. As a result, the power of the various state governments became progressively dispersed beginning in the 1780s as privately-funded organizations began to assume a much greater share of public authority in areas like transportation, communication, infrastructure and commerce. This evolution of the practical role that corporations could fulfil in the United States also brought about a corresponding, albeit more gradual, alteration in their legal status.

When the Supreme Court was forced to examine and ultimately describe the nature and purpose of corporations in the United States as a part of its 1804 ruling in Head v. Providence Insurance Company, Chief Justice Marshall still clung to the traditional definition. Corporations, he maintained, were public entities; formed by acts of state assemblies, they could likewise be altered by the same. In spite of the rapidly changing social and economic conditions of the era, during which American society was becoming more fluid, egalitarian and democratic, no less a  figure of authority than the Chief Justice of the Supreme Court clung to a legal definition of corporations that was very much rooted in convention and precedent. Eleven years later however, as part of its 1815 ruling in Terrett v. Taylor, the Court changed its tune. No longer, Associate Justice Story decreed in the majority opinion, could corporations be considered strictly public in nature; in reality some were public institutions while others were wholly private. The former included counties, towns, cities, and other similar legal entities that functioned as administrative units of government. The latter, and much larger, category included all businesses, colleges and universities. While this ruling didn't explicitly delineate all of the differences between the two types of corporations it planted the conception of certain corporate entities as private property firmly in the American social consciousness. This conception was subsequently tested and clarified in 1819 as a part of the Marshall Court’s ruling in Dartmouth College v. Woodward. Attempting to resolve a conflict between the trustees of Dartmouth College and a disgruntled former president of that institution, Marshall ruled that the Dartmouth charter, which had been revoked by the New Hampshire General Court, was in fact the private property of the trustees and thus immune from seizure or alteration without proper compensation. This effectively recast the private corporate charter as a kind of contract by which both signatories (in this case the legislature of New Hampshire and the Dartmouth trustees) were equally bound. Horrifying as this turn of events was to certain members of the Founding Generation, Thomas Jefferson chief among them, the newfound freedom and legal protection that corporations enjoyed thanks to the rulings of the Marshall Court would have a dramatic effect on the nature of American commerce, law, and self-identity in the decades to come.

I hasten again to point out that, although the narrative I just described of the evolution of the role of the corporation in the early United States might appear to be rather straightforward, significant resistance existed at various levels of American society throughout this era to the increased power and independence that corporate entities came to wield. It is perhaps a testament to this fact that it took until 1819, almost thirty years after the chartering of the Bank of the United States, for American jurisprudence to both recognize and define the difference between public and private corporations. In that time, between 1790 and the beginning of the 1820s, the United States witnessed the establishment of a robust federal government, a failed tax rebellion, a quasi-war with Revolutionary France, an economically disastrous blockade and an actual war with one of history’s great empires. Each of these events prompted, in some way or another, a re-examination of the purpose and definition of the American corporation, and specifically that of the chartered bank. 

Anti-Federalist No. 85 (A Plebian), Part V: Rhetoric, contd.

There are, before I conclude my examination of Anti-Federalist No. 85, a few more elements or passages I’d like to bring to the attention of the court. They are relatively minor when compared to those I've discussed thus far, but still worth mentioning for how they characterize Melancton Smith, his assumptions and perspective.

As mentioned previously, a list of what Smith considered to be distinctly disagreeable elements of the proposed federal constitution followed the eighth paragraph of No. 85. Some of Smith’s characterizations of these elements are, as I've explained, either false or grossly exaggerated. Others, however, are somewhat more ambiguous, as they are based on subjective judgements and not facts. For instance, the second in Smith’s list of reservations claimed that, “the general legislature is too small to secure liberty, or to answer the intention of representation.” Though Smith chose to phrase it rather bluntly he was not wrong to want to bring the matter to the attention of his contemporaries. In a representative democracy issues of size are always valid; how many people should each representative be responsible for? At what point does the size of a legislature become detrimental to its basic function? It is even possible for representative government to function as intended beyond a certain population threshold? Though Smith did not ask these specific questions in Anti-Federalist No. 85, they certainly stem from the same philosophical root concern that he expressed when claiming that the proposed House of Representative would be too small. In this he was far from alone; records of the various debates that took place during the Philadelphia Convention indicate that the basis of political representation was a topic frequently discussed by the delegates present. That they subsequently agreed to implement proportional representation in the lower house of Congress and enshrined the United States Census (the determining instrument) in Article I, Section 2 of the Constitution indicates that the Framers were similarly concerned as their critic Melancton Smith about the underpinnings of representative government.

It’s also worth noting that the states themselves have since adopted numerous different schemes for apportioning seats in their respective legislatures. Nebraska’s unicameral legislature is the smallest at only 49, each representing approximately 36,000 people, while New Hampshire’s 400 state representatives (the largest number by far) are each responsible for only 3,200. Alaska’s 40 state representatives are each accountable to 18,000 people, while California’s 80 each represent 475,000. Between these extremes there is a great deal of variation, and each distinction was doubtless motivated by the same or a similar concern to that which Smith expressed in 1788, that the existing legislature was either too large or too small. Though he was perhaps too quick to condemn what had yet to be tested his underlying concern was eminently valid.

The similarity between some of the topics Smith discussed and the rhetoric he deployed in Anti-Federalist No. 85 to those of the Framers and the Federalists extended beyond concerns over the practicalities of representative government. Indeed, I am struck by the similarity of sentiment between certain sections of Smith’s No. 85 and Alexander Hamilton’s and John Jay’s Federalist No. 1 & 2. In the fifteenth paragraph of the former Smith wrote that, “Consequences are under the control of that all-wise and all-powerful being, whose providence conducts the affairs of all men. Our part is to act right, and we may then have confidence that the consequences will be favorable.” This non-explicit invocation of God and use of the term “providence” to signify an abstract but beneficent universal guiding force were highly typical among those 18^th-century thinkers educated in the tradition of the Enlightenment. Jay was very much one of those men and made use of similar language in arguing for the opposite end result. In Federalist No. 2 he asserted that Providence played a principle role in shaping the fate and features of the United States and its inhabitants. Both men, it seems, believed that the critical endeavour in which they were engaged was being guided by a higher moral force, and that it was to a degree the responsibility of all men to try to understand and submit to the will of that force.

After invoking providence and exhorting his readers to “act right” in their judgement of the proposed constitution, Smith then more plainly stated what he considered that “right” to be. “The path in which you should walk is plain and open before you,” he wrote, “be united as one man, and direct your choice to such men as have been uniform in their opposition to the proposed system in its present form, or without proper alterations.” Rather than rely on providence to guide his fellow men or trust in their individual determination of what is right, it seemed that Smith had no qualms about informing his readers quite plainly on which side of the ratification debate they ought to have fallen. Hamilton’s Federalist No. 1 seems to exhibit similarly divided sentiments. In the sixth paragraph of the same, Hamilton claimed that his desire was to put his fellow Americans, “Upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare by impressions other than those which may result from the evidence of truth.” Not three paragraphs earlier, however, Hamilton warned his readers of what he considered, “Among the most formidable obstacles which the new Constitution will have to encounter.” These were, by his reckoning, state politicians who were attached to their offices and the authority that accompanied them, and those whose “perverted ambition” was to either utilize the “confusions of their country” so as to aggrandize themselves or elevate their prospects by seeing the United States divided into “several partial confederacies.” Far from guarding his fellow citizens against all attempts to influence their decision, Hamilton was explicitly attempting to shape it by casting those who stood against the Constitution as self-interested, avaricious and untrustworthy. Though their aims were undeniably opposed both Smith and Hamilton – Anti-Federalist and Federalist – made use of the same kind of rhetorical language; professing neutrality or claiming to trust in people’s sense of what was “right” and “true” while at times explicitly courting or manipulating the sympathies of their audience.

Where Smith seemed to differ from his Federalist opponents, however, was in his apparent disregard for their Enlightenment-derived emphasis on the primacy of debate and the toleration of error. It was, after all, one of the key contentions of the philosophical Enlightenment that truth in its theoretical absolute form was not the possession of any one person, organization or authority but was equally discoverable by every person. And as truth had nothing to fear from error if the two were permitted to confront each other it was agreed that the best, indeed the only way, to discover this truth was through open debate. Within this arrangement discussion on all manner of topics was encouraged and people were urged to change their opinions and beliefs as they were challenged by coming into contact with new ideas. The members of the Founding Generation tended to endorse this conception of truth and its relationship to error, particularly as expressed in rejections of absolutism (monarchy) and clericalism (church establishments). In fact their support of republicanism in general constituted a tacit acceptance of this formulation of truth and the importance of debate, republican governments being by their nature public, consultative and often fluid.

Melancton Smith, conversely, seemed to take the opposite tack. In the fifteenth paragraph of his Anti-Federalist No. 85, after exhorting his readers to support those men who had long been “uniform in their opposition to the proposed system,” he cautioned that, “When men are uniform in their opinions, it affords evidence that they are sincere. When they are shifting, it gives reason to believe, they do not change from conviction.” On first blush this would appear to be a categorical rejection of the purpose of open debate. If men who changed their minds were to be subjects of suspicion, what would be the benefit of anyone ever admitting that they were wrong? Why should an inflexibility of opinion be taken as a sign of sincerity? After a fashion Smith seemed to be defeating his own purpose. By the logic he deployed the Federalists would have seemed dishonest if they admitted that their opponents were right, and there would have been no purpose in trying to convince supporters of the Constitution to alter their stance as doing so would have revealed a lack of conviction on their part. Alexander Hamilton, in Federalist No. 1, approached the same core idea from the opposite perspective. In the fourth paragraph of said document he attempted to counter the suspicion he had cast on a particular group who stood in opposition to the proposed constitution by admitting that, “even such men may be actuated by upright intentions,” and that whatever mistakes they had committed were likely, “the honest errors of minds led astray by preconceived jealousies and fears.”  It was thus common, Hamilton argued, to see, “wise and good men on the wrong as well as on the right side of questions, of the first magnitude to society.” Unlike Smith, who appeared to believe that sincerity was a greater measure of worth than whether a person was right or wrong, Hamilton held that men who were motivated by what they perceived as the truth could end up on the wrong side of an argument, and that moderation and respect were required to correct their errors and foster consensus. Though it’s a matter of speculation as to whether Hamilton truly believed this was the case – indeed his later career would indicate that he was as capable of the intolerance of error that Smith professed – his written position at least possessed a degree of logical consistency.

However Smith intended this particular rhetorical jab at his opponents, claiming they’d displayed inconsistent judgement by admitting the proposed Constitution wasn't perfect, the end result appears both paradoxical and self-defeating. That being said, the question remains as to why he was willing to commit such a statement to print. The simple answer would be that he wished to easily and effectively discredit his opponents in the eyes of the public. Claiming that they were inconsistent and hypocritical doubtless seemed like a potentially fruitful approach, and was likely intended to play into the sense of suspicion and distrust that many Americans still felt in the aftermath of the Revolution towards the idea centralized government. Just as the revolutionaries in the 1770s had been suspicious of the motives of the British Parliament in laying taxes on the colonies, many Americans in the 1780s were wary of once more recognizing the authority of a powerful and in some cases distant federal government. For many of them it followed that those who supported the creation of such a government were likewise of questionable motivations. By pointing out the seeming changeability of their opinions concerning the quality of the Constitution, Smith perhaps intended to feed into and exploit this latent distrust.

Then again, perhaps Smith was just a narrow-minded sort of person.

Though the members of the Founding Generation were far from perfect, many of them at least appeared to possess strong convictions about concepts like virtue, personal integrity, truth, and public service. For many of them these convictions were the result of their being the beneficiaries of classical educations whose curricula had been shaped by the intellectual currents of the Enlightenment. Men like Thomas Jefferson, John Adams, James Madison and Alexander Hamilton were greatly influenced by the study of Ancient Greek and Roman texts, philosophy, rhetoric and logic, and in many cases full imbibed the values that these topics were intended to impart. As a result the Founders and the Framers tended to value logic over adherence to tradition, were generally well-read in matters of contemporary philosophy and economics, and often expressed themselves in terms that were distinctly universal (having to do with humanity, human history, human civilization, etc…). Melancton Smith may not have been one of these men. Admitting that I am unaware of the circumstances of his education, I will say that his career biography and the sentiments he expressed in Anti-Federalist No. 85 lead me to believe that his worldview was somewhat more parochial than that of some of his contemporaries. Potentially lacking the kind of education that encouraged a wide-ranging view of humanity and human society, deeply entrenched in the politics of his home state and anxious of ensuring its continued prestige and influence, Melancton Smith thus may have simply felt no affinity for moderation, and felt little respect for the opinions of those he believed were in error.

Still, I don’t suppose I could really say one way or the other what kind of man Melancton Smith was. His relative obscurity makes him difficult to grasp, and though Anti-Federalist No. 85 provides a fascinating window into a particular moment in both his life and the life of the United States, there is little else on which to base even a cursory character evaluation. That being said, I do believe that Smith was one of the state politicians that Hamilton described as chief among the opposition to the proposed Constitution. The thrust of his arguments in No. 85 often seemed to relate to guarding against diminutions of state power and demonstrating how unnecessary a strengthened federal government was. As Smith expressed in the eighth paragraph of No. 85 and in the list of specific concerns that followed, it was his belief that the main objective of the government framed by the Constitution was the eventual erosion of the power and purpose of the existing state government to the point of rendering them obsolete. “The new system,” he wrote, “…is calculated to and will effect such a consolidation of the States, as to supplant and overturn the state governments.” As concerns this claim I believe that there are two things worth noting.

One is that the text of the Constitution itself, though laying a variety of restrictions on the ability of the various states to either compete with one another or execute foreign and trade policies independent of the federal government, also explicitly reserves several powers and responsibilities to the said states. Just as, for instance, the states were prohibited by Article I, Section 10 from entering into treaties of their own accord, minting currency, raising troops in times of peace or laying duties on imports or exports, Article I, Section 3 ensured that Senators would be exclusively elected by the legislatures of the various states. Likewise Article I, Section 8 ensured that the states would maintain control over the appointment of militia officers, Article III, Section 2 guaranteed that trials were to be held in the states in which the relevant crimes were committed, and Article IV, Section 3 declared that the division or reorganization of existing states would not occur unless accompanied by the consent of the state legislatures concerned. Rather than attempt to render the states obsolete, the Constitution created a specific legal and organizational role for them to fulfil. Their elimination could only be accomplished by a series of amendments that would drastically alter the form and function of the United States government.

The second fact worth noting is that Alexander Hamilton, arch-Federalist and supporter of the Constitution and the resulting federal government, did in fact favour the gradual elimination of the various states. Like his colleague James Madison, he took a dim view of the rampant populism that had dominated state politics in the 1780s. Combined with his experiences during the Revolutionary War of having to negotiate with stubborn, short-sighted state governments for supplies and recruits, Hamilton developed an acute disdain for what he perceived as unchecked state power.  During the Philadelphia Convention he even went so far as to propose to his fellow delegates a framework that would have made state governors appointed by the federal government and given the President (elected for life) an absolute veto over state legislation. This plan was handily rejected, as few if any of the delegates present were willing to countenance such an aggressive weakening of state prerogatives. While again it bears remembering that this fact, along with all other proceedings of the Philadelphia Convention, would not have become public knowledge until several decades after the fact, Hamilton’s pseudo-monarchist proclivities and antipathy towards the ideas of strong state governments were relatively well-known at the time.

If the original, unamended text of the United States Constitution does not contain measure that would have afforded the elimination of the individual states then Melancton Smith’s conviction to the contrary must have been drawn from elsewhere. Alexander Hamilton was an ardent supporter of the proposed Constitution whose opposition to strong, largely-autonomous states was no secret. Though Smith had no way of knowing it, Hamilton had even proposed a plan of government that would have made the states far more subservient to the federal government than that which was contained in the final draft of the Constitution. Taking these facts into consideration, along with Smith’s personal, financial and political attachment to the government of his home state of New York, I would speculate that Anti-Federalist No. 85 was directed as much at a perceived threat as an explicit one. While he had every reason to treat certain elements of the proposed constitution with a degree of caution, his most ardent suspicions were perhaps directed more at the individuals he believed were championing the new government than the thing itself. By positioning himself as a defender of the, “common people, the yeomanry of the country,” against, “those who urge the adoption of a bad constitution, under the delusive expectation of making amendments after it is acceded to,” Smith demonstrated a plain antipathy for the class of men he perceived as hustling the proposed government to an all-too hasty adoption. By claiming that replacing the Articles of Confederation had never entered into the minds of the state governments that had agreed to take part in the Philadelphia Convention in 1787, he argued for a clear division of interests between the states themselves and the supporters and Framers of the Constitution. And by attempting to demonstrate the peace and prosperity that the states had already come to enjoy under the Articles of Confederation in the 1780s, he tacitly questioned the necessity of altering the existing form of the United States government and the speed with which that change was being attempted.

Anyway, that’s how I see it. Give it a read and decide for yourself: http://www.thefederalistpapers.org/antifederalist-paper-85

Anti-Federalist No. 85 (A Plebian), Part IV: Rhetoric

Facts, or otherwise, aside, many of the assertions that Melancton Smith made in Anti-Federalist No. 85 employ rhetoric, generalizations or speculation rather than outright falsehoods or omissions. In this sense Smith was no different than Alexander Hamilton, one of his Federalist opposite numbers and a fellow New Yorker. Smith and Hamilton were alike in their desire to manipulate the terms of the debate in which they took part in order to best suit their respective positions. Just as Hamilton was willing to exaggerate the degree to which the United States was threatened by disunion or even civil war, Smith seemed to have no trouble painting the troubled 1780s as a time of peace and prosperity, in spite of limited evidence to back up either claim. The reason for this apparent impulse to dishonesty, I believe, was that both men understood the importance of rhetoric and debate, and both felt that the stakes they were playing for were exceedingly high. Hamilton stood to help craft what would become perhaps the single most powerful and influential state in human history, while Smith feared watching the state he’d worked to advance, protect and prosper lose a significant portion of its sovereignty and become once again subject to a potentially distant central government. Both were perfectly valid causes, and I hasten to point out once again that it’s not my intention to expose the extent of Smith’s attempt to mislead or deceive his readers. Rather, I only wish to promote a sense of understanding in regards to a group that has often been looked upon as among history’s losers. Just as with the ultimately successful Federalists, I feel it’s important to understand what Anti-Federalists like Melancton Smith were really arguing for, what elements of the constitutional debate they prioritized, and how they attempted to appeal to their audience.

Among the rhetorical devices that Smith made use of in No. 85 are what might be called “unqualified generalizations,” whereby the eminent Plebian laid out bold, blanket statements which he treated as well-known facts in spite of providing no evidence to support them. I would not consider these declarations to be outright falsehoods because I can see no way of unequivocally disproving them, though their accuracy is clearly suspect. The seventh paragraph contains such an instance, in which Smith discussed the recent Federalist victories at the Massachusetts and Connecticut ratifying conventions. Specifically he asserted that though Massachusetts had voted in favour of the proposed constitution it did so by only a slight margin, and in consequence there was no way to know on which side the majority of that state’s population truly fell. This is fair enough; accounts from the period and subsequent events point to Massachusetts being among the most evenly split in terms of supporting or opposing the Constitution. Though one might fairly assume that the 187 to 168 margin was a decent indicator of where the majority of that state’s population stood (having elected the delegates themselves), I wouldn't consider Smith’s claim of uncertainty in this case to be unreasonable. That being said, his further claims that though a larger majority in Connecticut voted in favour of the Constitution (128 to 40), it was still well-known that, “a large portion of the yeomanry of the country are against it,” and that, “In both these states the body of the common people, who always do the fighting of a country, would be more likely to fight against it that for it,” seem much harder to justify. Indeed the question which to my mind begs answering is how did a wealthy New York merchant know what the common people in other states were thinking and feeling?

There almost certainly is no satisfying answer. Perhaps by some alchemy Smith was able to gather information about the common sentiments among the New England yeomanry, though it seems highly improbable. The kinds of demographic and statistical information and opinion polls which we are so used to seeing our modern politicians and pundits deploy in making their various arguments simply didn't exist in the late 18^th century. There were virtually no mechanisms for gathering and synthesizing public opinion, and few publications that would have reached to the lowermost social strata of early American society. Indeed, until at least the mid-19^th century the “common people” were more distrusted than embraced by the political classes in the United States, and few members of the Founding Generation ever had much cause to consider the opinions of the masses during their respective careers in public service. Though it’s possible that Smith gathered anecdotal information from friends or colleagues who lived and worked in other states and formulated his arguments based on their sense of the public opinion, this scenario strikes me as something of a stretch. That being said, Smith may well have been correct in his assessment. As Shays Rebellion had shown, farmers and workers in Massachusetts were both capable and willing to engage in armed resistance in response to measures taken by their government that displeased them or threatened their economic integrity. Taking into consideration as well the kinds of popular displays that went on in that state in the 1760s and 1770s in response to unpopular British taxes, and the fact that Massachusetts was where the armed portion of the American Revolution began, it certainly wouldn't have been beyond reason to suppose that the common people of the Bay State were generally sceptical of authority and unafraid to take up arms against it. Nevertheless, Smith’s claim was still a dubious one for its total lack of corroborating evidence and ought to be regarded as an example of rhetoric and not reason.

In the eighth paragraph of Anti-Federalist No. 85 Smith further called into question the transparency of the events surrounding the drafting and ratification of the proposed constitution. Addressing once again the spirit of haste that seemed to him to characterize the efforts and rhetoric of the document’s supporters, Smith questioned whether or not the calling of a second convention to amend the Constitution was as impossible as the Federalists claimed. The Philadelphia Convention, they argued, brought together a group of men who collectively represented a wide variety of ideals and sentiments. The spirit of consensus that had emerged by the time the gathering adjourned was thus hard-won, and the result of lengthy disagreements that only grudgingly gave way to concession and understanding. The Constitution, far from perfect in itself, was thus as perfect as was possible to achieve. A second convention would accomplish little, as all parties had already conceded on as many points as their respective consciences would allow. To this assertion Smith supposed that, “the contrary inference was the fair one.” If the delegates at Philadelphia, he reasoned, had truly been possessed of such a keen sense of moderation and compromise, and had through debate and negotiation become accustomed to and understanding of each-other’s opinions and prejudices, there was ample reason to believe that, “this same spirit will continue and prevail in a future convention, and produce an union of sentiments on the points objected to.” While I would once again grant that Smith’s central point is not without merit – that a second convention might have conceivably produced worthwhile amendments – the specific argument he deployed in paragraph eight of No. 85 seems rather illogical.

The compromises that emerged out of the Philadelphia Convention were indeed hard-won, and though few of the delegates present later claimed that the resulting draft of the Constitution was all that they could have hoped, most of them agreed that further conciliation would have been virtually impossible. The divisions that emerged during the months-long convention where too numerous – agricultural vs. commercial, small states vs. large states, North vs. South, anti-slavery vs. pro-slavery – and in some cases too fundamental to afford an easy process of give and take. As well, much of the final character of the draft constitution was doubtless owed to the specific personalities involved in its creation, the likes of James Madison, Benjamin Franklin, James Wilson, Alexander Hamilton, John Dickinson and John Rutledge, to name but a few. Each of these men played an essential part in shaping some aspect of the Constitution or the debate that produced it. It would thus, I think, be fair to say that a different group of men would have produced a fundamentally different document. With that in mind I would agree that calling a second constitutional convention made up of an entirely new set of delegates for the purpose of amending the draft produced by the first would surely have resulted in new and different debates taking place and generated compromises simply not possible in Philadelphia in 1787. This is not, however, what Melancton Smith seemed to be suggesting.           

                       

It was Smith’s contention that the, “spirit of moderation and condescension,” that came to characterize the deliberations of the Philadelphia Convention, coupled with the fact that the various delegates came to, “accommodate themselves to each other’s opinions, and even prejudices,” would suggest that a second convention of the same delegates would have no trouble proceeding in the same spirit. The wisdom of this I am forced to question. Even some of the Constitution’s most ardent supporters – Madison, Hamilton, Wilson – felt that the final draft was in certain aspects unsatisfactory. Still, seeing in the new plan of government a vast improvement over that which existed under the Articles of Confederation they threw their all behind its ratification. If these men who with gusto wrote and campaigned for the adoption of the Constitution felt that it was an imperfect thing, it should then follow that its outwardly less-enthusiastic supports held an even lower opinion of its quality. Nevertheless, few if any of the men that signed their name to the final draft of the document agreed subsequently that a second convention was either possible or desirable. For all their well-documented ideological and philosophical differences they seemed to be in fundamental accord that they could do no better. How they might have been persuaded otherwise Smith failed to offer in Anti-Federalist No. 85, for which I can see at least two possible reasons.

He may have truly believed it was possible to reunite the Framers of the Constitution at a second convention and have them reach something other than a stalemate. Smith hadn't attended the first convention in Philadelphia, the proceedings of which would not become public for decades, and so likely had little idea of how difficult it had been for those present to arrive at anything like a consensus. Thinking perhaps that the subsequent protestations of many of the Framers against further revisions of the Constitution were mere subterfuge (since they likely stood to gain by its quick ratification), Smith was perhaps trying to call their bluff. More likely, however, Smith was aware of how doubtful a second meeting of the Framers would have been of producing the revisions he and his allies desired but pushed for it anyway. Perhaps he did so simply in an attempt to sow doubt among those responsible for ratifying the proposed constitution in the remaining states. If they could be convinced that not only was the document itself flawed but its authors stubbornly refused to make good on their error maybe the entire enterprise could be defeated. Whatever Smith’s reasons may have been, they are not made clear in the text of Anti-Federalist No. 85. What is clear, however, is that his stated rationale for convening a second convention composed of the same delegates as before defies the opinions to the contrary expressed by those same delegates. Thus I would argue that his assertion of the viability of a second convention was probably intended as a means of harnessing and manipulating the American public’s existing anxieties in order to produce what Smith considered to be a desirable outcome.

Indeed, much of the language Melancton Smith made use of in Anti-Federalist No. 85 seemed carefully chosen in order to cast the debate over the proposed constitution in a populist light. In numerous instances Smith invoked, “the people,” or, “the common people,” “the general opinion,” and “the yeomanry,” as well as specifically farmers, mechanics (workers) and merchants. These were whom he claimed to represent (and said as much in paragraph fifteen), while the Framers and supporters of the Constitution were conversely characterized as distant, distinctly separate and possessed of priorities and an agenda all their own. The people, he argued, had had the Constitution foisted upon them by the delegates in Philadelphia and had subsequently been asked to consider and approve something they had no say in shaping. Indeed the secrecy with which the deliberations of the Philadelphia Convention were carried out and the fact that it was convened with the stated intent of only revising the Articles of Confederation led many American into a state of confusion as to how and why an entirely new national constitution had come into being at all. Specifically, Smith wrote that the idea of drafting a plan of government similar to the one put before the states for ratification, “never entered the minds of the legislatures who appointed the convention, and of but very few of the members who composed it, until they had assembled and heard it proposed in that body.” He went on to add that the secrecy of the Convention ensured that, “no opportunity was given for well informed men to offer their sentiments upon the subject,” and that the proposed constitution was, “not known to the people until after it was proposed.” Based on these statements the reader would seem forced to conclude that the Plebian who authored No. 85 considered the state legislatures to be more trustworthy representatives of the American people than the delegates they sent to the Philadelphia Convention, that these same delegates were themselves not “well informed men,” and that they were not even worthy of being considered among “the people.” Considering what Smith had previously intimated about the delegates to the Philadelphia Convention there would seem to be something of a contradiction at work in his argument.

At the beginning of the eighth paragraph of Anti-Federalist No. 85 Smith seemed satisfied enough with the abilities and knowledge of the Framers of the Constitution to want to call them back into attendance for a second convention in order to address the errors he and his colleagues managed to detect in the finished document. Whatever he may have thought of their initial efforts he must have been confident enough in their ability to get it right the second time around to say as much in print. That being said it would seem rather odd for him to then, within the same paragraph, cast the Framers as distant, secretive, and perhaps even untrustworthy.

The logical progression of his argument seems to be, if I have it right:

a)      The state legislatures selected delegates to attend the Philadelphia Convention with the understanding that its purpose would be to discuss revisions of the Articles of Confederation

b)     The delegates attended the Convention with this same understanding in mind, and only came upon the idea of drafting a new national constitution after they’d already assembled

c)      The delegates, now set on drafting a national constitution, proceeded to do so in secrecy

d)     The delegates presented a completed draft of the proposed constitution to the people of the various states for ratification, much to their surprise

This scenario seems place the state legislatures and “the people” on one side of the debate as having been in favour of only modifying the existing federal government and the convention delegates on the other as having secretly originated, discussed and drafted an entirely new plan of government. This arrangement would appear to belie the fact that the state legislatures presumably chose the various delegates to attend the Philadelphia Convention because they felt that each man selected could be depended on to represent the interests of his particular state. Since the suggestion of drafting a new plan of government came from the delegates themselves, and since of the 55 delegates in attendance only 16 either left before affairs had concluded or refused to sign the final draft of the Constitution, it would seem a fair conclusion that approximately 70% of those in attendance felt that the creating of a new national government was not inconsistent with their respective responsibilities to represent the interests of their states.

If my inference is correct, that Melancton Smith intended to portray the Framers of the Constitution as having worked in opposition to the wishes of the legislatures that initially sent them to Philadelphia, then the logical culmination of this line of thinking would conceivably be that the Constitutional Convention of 1787 represented some form of elitist conspiracy. The 39 delegates that ultimately signed the Constitution came from 12 different states. All were chosen by the elected legislatures of their home states to be in attendance. It would seem either the height of coincidence or a pre-planned collusion that the overwhelming majority supported the idea of creating a new plan of national government when it was presented to them and were willing to sign their names to the finished product. Or that is to say, it would seem that way were it not more reasonable to conclude that at least some of the state legislatures were aware of their chosen delegates’ pro-federal leanings and sent them to Philadelphia for that reason. Perhaps they sensed that a change was coming and wanted to ensure that their interests were represented in the process by someone(s) they trusted. Or perhaps they were in favour of the creation of a stronger federal government and were keen to see it accomplished by sending men they believed were “well informed.” Whatever the truth of the matter I at least feel comfortable asserting that Melancton Smith’s admittedly subtle attempt to create distance between the interests of the states/the people and the Framers in Anti-Federalist No. 85 is another example of his various efforts to use rhetoric to shape the terms of the debate in which he was engaged.