The First American: The Life and Times of Benjamin Franklin (134 page)

Franklin survived the heat better than many delegates far younger than he, and better than he had feared. To be sure, a three-day illness in mid-July left him “so weak as to be scarce able to finish this letter,” he explained to John Paul Jones in Paris. (In this same letter Franklin asked Jones to convey regards to Jefferson “and acquaint him that the Convention goes on well and that there is hope of great good to result.”) But on the whole his health held up, and he attended the sessions of the convention faithfully.

Though the compromise on representation assured the success of the convention, the members still had work to do. They had to define the powers of the executive and the extent of legislative checks upon him. Should the legislature be able to impeach and remove him during his term? Franklin thought so. He considered the power of removal a guarantee both for the people and for the executive. “What was the practice before this in cases where the chief magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the constitution for the
regular punishment of the executive when his misconduct should deserve it, and for his honourable acquittal when he should be unjustly accused.”

Should the executive be eligible for reelection? Some members thought he must be, else he necessarily suffer the degradation of being returned to the body of the people. Franklin differed strenuously. Such an assertion was “contrary to republican principles,” he said. “In free governments the rulers are the servants, and the people their superiors and sovereigns. For the former therefore to return among the latter was not to
degrade
but to
promote
them.” Doubtless with that sly smile of his, he added, “It would be imposing an unreasonable burden on them to keep them always in a state of servitude and not allow them to become again one of the masters.”

Who should be able to vote? Many delegates thought responsibility attached to property, and irresponsibility to its lack, and said suffrage should be restricted to freeholders. Franklin granted that the person least prone to political pressure was the one who tilled his own farm, but he would not endorse the proposed restriction. “It is of great consequence that we should not depress the virtue and public spirit of our common people, of which they displayed a great deal during the war, and which contributed principally to the favourable issue of it.” Such a restriction would rightly provoke popular upset. “The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description.”

What should be the requirements for candidates to the national legislature? Many delegates again wanted to see proof of owning property. Again Franklin embraced the more democratic position. Once more he voiced his dislike of everything that tended “to debase the spirit of the common people.” Besides, as his own long experience of politics and politicians had taught him, the proposed restriction was no guarantee of good government. “If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues I ever was acquainted with were the richest rogues.” Moreover, other countries were watching America. “This constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich, it will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this country.”

The opinion of Europe—to which, it was fair to say, Franklin was
more sensitive than anyone else at the convention—informed his opinion on a related topic. How long should immigrants be required to live in America before becoming eligible for office? Some said as much as fourteen years. Franklin thought this excessive. He was “not against a reasonable time, but should be very sorry to see any thing like illiberality inserted in the constitution.” The members were writing not simply for an American audience. “The people in Europe are friendly to this country. Even in the country with which we have been lately at war, we have now and had during the war a great many friends not only among the people at large but in both Houses of Parliament. In every other country in Europe all the people are our friends.” How the proposed constitution treated foreign immigrants would have much to do with whether America retained those European friends. In any case, justice dictated fair treatment of the foreign-born, for many had served valiantly during the war. The mere fact of immigrants’ relocation to America should count for something. “When foreigners, after looking about for some other country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence and affection.”

As cooler
weather approached, so did the end of the convention’s work. Franklin had his way on some of the remaining issues, yielded on others. He advocated requiring not one but two witnesses to the same overt act of treason, on grounds that prosecutions for this highest crime were “generally virulent” and perjury was too easily employed against the innocent. The convention agreed. (This requirement of two witnesses would prove critical in the treason trial of Aaron Burr twenty years later.) Franklin seconded a motion calling for an executive council to assist the president. Still advocating a wider distribution of power, he said, “We seem too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons.” Colonial experience with bad governors should have shown the need to restrain a single executive, while his own experience as chief executive of Pennsylvania revealed the positive benefits a council could provide. “A council would not only be a check on a bad president but be a relief to a good one.” The convention disagreed.

The thorniest of the final issues involved slavery. How should slaves be counted toward representation in the lower house? Naturally the delegates
from the states with few slaves wanted to minimize the slave count; they pointed out that since slave owners considered slaves to be property, those same slaves should not be counted as persons. The delegates from states with many slaves objected, less on philosophical grounds than on the pragmatic one that without some allowance for slaves, their states simply would not accept the new constitution. James Wilson of Pennsylvania proposed that the new constitution adopt the expedient devised by the Confederation Congress in 1783, when the legislature allowed the states to count three-fifths of the total number of their slaves. This compromise made no one happy but none so upset as to bolt the convention, and it was accepted.

A similar makeshift disposed of the question of the slave trade. The new constitution would give Congress power to regulate commerce, but the heavily slaved states resisted infringement on the commerce in slaves. Franklin had been sharply critical of the slave trade when it was practiced by the British, and—as he would soon reveal—had come to detest the entire institution of slavery, but when the southern states made clear that the issue of the slave trade was another potential convention-breaker, he acquiesced in another compromise. For twenty years Congress could not bar the traffic in slaves; from 1808 it might do what it chose on the subject.

On September 17 the completed copy of the Constitution was ready for the members’ signatures. Franklin addressed the convention for the last time. Again he spoke through James Wilson, who read his colleague’s prepared remarks. “I confess that there are several parts of this constitution which I do not at present approve,” Franklin said. “But I am not sure I shall never approve them, for having lived long, I have experienced many instances of being obliged by better information or fuller consideration to change opinions even on important subjects which I once thought right but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more attention to the judgment of others.”

Some people felt themselves possessed of all truth; so did most sects in religion. Franklin explained how the Anglican Richard Steele (upon whose writing, many years before, he had modeled his own) once penned a dedication to the Pope, in which he explained, in Franklin’s paraphrase, that “the only difference between our churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong.” Franklin also quoted a Frenchwoman of his acquaintance who, in an argument with her sister,
declared, “I don’t know how it is, Sister, but I meet with nobody but myself that’s always in the right.”

As the chuckles subsided, Franklin made his point. “In these sentiments, Sir, I agree to this constitution with all its faults, if they are such; because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered.” He reminded once more that the strength of any government rested on the virtue of the people. “This is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other.”

Franklin doubted whether any convention could have done better. “When you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” The wonder was how well the present assembly had done. “I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel, and that our states are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, sir, to this constitution, because I expect no better, and because I am not sure that it is not the best.”

Franklin closed by suggesting that the confidentiality that had surrounded the proceedings ought to continue upon the members’ parting. “The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die.” If each delegate, returning to his constituents, complained at this point or that of the new government, the total of the complaints would probably scuttle the project. On the other hand, unanimity would encourage ratification. “I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously.”

Achieving this unanimity required a final bit of finesse. Franklin knew full well that unanimity of delegates was not possible. Edmund Randolph was holding out, as were Elbridge Gerry and George Mason. But unanimity of the states might be attained, by polling the members within each delegation and heeding the majorities therein. Gouverneur Morris framed a formula for the signing: “Done in Convention, by the unanimous consent of the States present the 17th of September.”

Franklin moved that the convention adopt this formula, and the motion carried.

George Washington
signed first, followed by thirty-seven others, state by state. James Madison related the convention’s close:

Whilst the last members were signing it, Doctor Franklin, looking towards the president’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had often found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun.