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Title: History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 - With Notices of its Principle Framers
Author: Curtis, George Ticknor
Language: English
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*** Start of this LibraryBlog Digital Book "History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 - With Notices of its Principle Framers" ***
by the Posner Memorial Collection
(http://posner.library.cmu.edu/Posner/))
HISTORY
OF THE
ORIGIN, FORMATION, AND ADOPTION
OF THE
CONSTITUTION OF THE UNITED STATES;
WITH
NOTICES OF ITS PRINCIPAL FRAMERS.
BY
GEORGE TICKNOR CURTIS.
IN TWO VOLUMES.
VOLUME I.
NEW YORK:
HARPER AND BROTHERS,
FRANKLIN SQUARE.
1854.
Entered according to Act of Congress, in the year 1854, by
GEORGE T. CURTIS,
in the Clerk's Office of the District Court of the District of
Massachusetts
TO
GEORGE TICKNOR, ESQ.,
THE HISTORIAN OF SPANISH LITERATURE,
BY WHOSE ACCURATE SCHOLARSHIP AND CAREFUL CRITICISM
THESE PAGES HAVE LARGELY PROFITED,
I DEDICATE THIS WORK,
IN AFFECTIONATE ACKNOWLEDGMENT OF TIES,
WHICH HAVE BEEN TO ME CONSTANT SOURCES OF HAPPINESS
THROUGH MY WHOLE LIFE.
PREFACE.
A special history of the origin and establishment of the Constitution of
the United States has not yet found a place in our national literature.
Many years ago, I formed the design of writing such a work, for the
purpose of exhibiting the deep causes which at once rendered the
Convention of 1787 inevitable, and controlled or directed its course and
decisions; the mode in which its great work was accomplished; and the
foundations on which our national liberty and prosperity were then
deliberately settled by the statesmen to whom the American Revolution
gave birth, and on which they have rested ever since.
In the prosecution of this purpose I had, until death terminated his
earthly interests, the encouragement and countenance of that illustrious
person, whose relation to the Constitution of the United States, during
the last forty years, has been not inferior in importance to that of
any of its founders during the preceding period.
Mr. Webster had for a long time the intention of writing a work which
should display the remarkable state of affairs under whose influence the
Constitution was first brought into practical application; and this
design he relinquished only when all the remaining plans of his life
were surrendered with the solemn and religious resignation that marked
its close. It was known to him that I had begun to labor upon another
branch of the same subject. In the spring of 1852 I wrote to him to
explain the plan of my work, and to ask him for a copy of some remarks
made by his father in the Convention of New Hampshire when the
Constitution was ratified by that State. I received from him the
following answer.
"WASHINGTON, March 7th, [1852].
"MY DEAR SIR,--
"I will try to find for you my father's speech, as it was collected from
tradition and published some years ago. If I live to see warm weather in
Marshfield, I shall be glad to see you beneath its shades, and to talk
of your book.
"You are probably aware that I have meditated the writing of something
upon the History of the Constitution and the Administration of
Washington. I have the plan of such a work pretty definitely arranged,
but whether I shall ever be able to execute it I cannot say:--'the wills
above be done.'
"Yours most truly,
"DANL. WEBSTER."
Regarding this kind and gracious intimation as a wish not to be
anticipated in any part of the field which he had marked out for
himself, I replied, that if, when I should have the pleasure of seeing
him, my work should seem to involve any material part of the subject
which he had comprehended within his own plan, I should of course
relinquish it at once. When, however, the period of that summer's
leisure arrived, and brought with it, to his watchful observation, so
many tokens that "the night cometh," he seemed anxious to impress upon
me the importance of the task I had undertaken, and to remove any
obstacle to its fulfilment that he might have suggested. Being with him
alone, on an occasion when his physician, after a long consultation, had
just left him, he said to me, with an earnestness and solemnity that can
never be described or forgotten: "_You_ have a future; _I_ have none.
You are writing a History of the Constitution. _You_ will write that
work; _I_ shall not. Go on, by all means, and you shall have every aid
that I can give you."
The event of which these words were ominous was then only four weeks
distant. Many times, during those short remaining weeks, I sought "the
shades of Marshfield"; but now it was for the offices and duties, not
for the advantages, of friendship;--and no part of my work was ever
submitted to him to whose approbation, sympathy, and aid I had so long
looked forward, as to its most important stimulus and its most
appropriate reward.
But the solemn injunction which I had received became to me an
ever-present admonition, and gave me--if I may make such a
profession--the needful fidelity to my great subject. Whatever may be
thought of the manner in which it has been treated, a consciousness that
the impartial spirit of History has guided me will remain, after every
ordeal of criticism shall have been passed.
And here, while memories of the earlier as well as of the later lost
crowd upon me with my theme, I cannot but think of him, jurist and
magistrate, friend of my younger as well as riper years, who was called
from all human sympathies before I had conceived the undertaking which I
have now completed. Fortunate shall I be, if to those in whom his blood
flows united with mine I can transmit a work that may be permitted to
stand near that noble Commentary, which is known and honored wherever
the Constitution of the United States bears sway.
The plan of this work is easily explained. The first volume embraces the
Constitutional History of the United States from the commencement of the
Revolution to the assembling of the Convention of 1787, together with
some notices of the principal members of that body. The second volume is
devoted to the description of the process of forming the Constitution,
in which I have mainly followed, of course, the ample Record of the
Debates preserved by Mr. Madison, and the official Journal of the
proceedings.[1]
The period of our history from the commencement of the Revolution to the
beginning of Washington's administration is the period when our State
and national institutions were formed. With the events of the
Revolution, its causes, its progress, its military history, and its
results, the people of this country have long been familiar. But the
constitutional history of the United States has not been written, and
few persons have made themselves accurately acquainted with its details.
How the Constitution of the United States came to be formed; from what
circumstances it arose; what its relations were to institutions
previously existing in the country; what necessities it satisfied; and
what was its adaptation to the situation of these States,--are all
points of the gravest importance to the American people, and all of them
require to be distinctly stated for their permanent welfare.
For the history of this Constitution is not like the history of a
monarchy, in which some things are obsolete, while some are of present
importance. The Constitution of the United States is a living code, for
the perpetuation of a system of free government, which the people of
each succeeding generation must administer for themselves. Every line of
it is as operative and as binding to-day as it was when the government
was first set in motion by its provisions, and no part of it can fall
into neglect or decay while that government continues to exist.
The Constitution of the United States was the means by which republican
liberty was saved from the consequences of impending anarchy; it secured
that liberty to posterity, and it left it to depend on their fidelity to
the Union. It is morally certain that the formation of some general
government, stronger and more efficient than any which had existed since
the independence of the States had been declared, had become necessary
to the continued existence of the Confederacy. It is equally certain,
that, without the preservation of the Union, a condition of things must
at once have ensued, out of which wars between the various provinces of
America must have grown. The alternatives, therefore, that presented
themselves to the generation by whom the Constitution was established,
were either to devise a system of republican government that would
answer the great purposes of a lasting union, or to resort to something
in the nature of monarchy. With the latter, the institutions of the
States must have been sooner or later crushed;--for they must either
have crumbled away in the new combinations and fearful convulsions that
would have preceded the establishment of such a power, or else they must
have fallen speedily after its triumph had been settled. With the former
alternative, the preservation of the States, and of all the needful
institutions which marked their separate existence, though a difficult,
was yet a possible result.
To this preservation of the separate States we owe that power of minute
local administration, which is so prominent and important a feature of
our American liberty. To this we are indebted for those principles of
self-government which place their own interests in the hands of the
people of every distinct community, and which enable them, by means of
their own laws, to defend their own particular institutions against
encroachments from without.
Finally, the Constitution of the United States made the people of these
several provinces one nation, and gave them a standing among the nations
of the world. Let any man compare the condition of this country at the
peace of 1783, and during the four years which followed that event, with
its present position, and he will see that he must look to some other
cause than its merely natural and material resources to account for the
proud elevation which it has now reached.
He will see a people ascending, in the comparatively short period of
seventy years, from an attitude in which scarcely any nation thought it
worth while to treat with them, to a place among the four principal
powers of the globe. He will see a nation, once of so little account and
so little strength that the corsairs of the Mediterranean could prey
unchecked upon its defenceless merchantmen, now opening to their
commerce, by its overawing diplomacy and influence, an ancient empire,
on the opposite side of the earth we inhabit, which has for countless
ages been firmly closed against the whole world. He will first see a
collection of thirteen feeble republics on the eastern coast of North
America, inflicting upon each other the manifold injuries of rival and
hostile legislation; and then again he will behold them grown to be a
powerful confederacy of more than thirty States, stretching from the
Atlantic to the Pacific, with all their commercial interests blended and
harmonized by one superintending legislature, and protected by one
central and preponderating power. He will see a people who had at first
achieved nothing but independence, and had contributed nothing to the
cause of free government but the example of their determination to
enjoy it, founding institutions to which mankind may look for hope, for
encouragement and light. He will see the arts of peace--commerce,
agriculture, manufactures, jurisprudence, letters--now languishing
beneath a civil polity inadequate and incompetent, and now expanding
through a continent with an energy and force unexampled in the history
of our race,--subduing the farthest recesses of nature, and filling the
wilderness with the beneficent fruits of civilization and Christianity.
Surveying all this,--looking back to the period which is removed from
him only by the span of one mortal life, and looking around and before
him, he will see, that among the causes of this unequalled growth stands
prominent and decisive, far over all other human agencies, the great
code of civil government which the fathers of our republic wrought out
from the very perils by which they were surrounded.
It is for the purpose of tracing the history of the period in which
those perils were encountered and overcome, that I have written this
work. But in doing it, I have sought to write as an American. For it is,
I trust, impossible to study the history of the Constitution which has
made us what we are, by making us one nation, without feeling how
unworthy of the subject--how unworthy of the dignity of History--would
be any attempt to claim more than their just share of merit and renown
for names or places endeared to us by local feeling or traditionary
attachment. Historical writing that is not just, that is not impartial,
that is not fearless,--looking beyond the interests of neighborhood, the
claims of party, or the solicitations of pride,--is worse than useless
to mankind.
BOSTON, July, 1854.
FOOTNOTE:
[1] In citing the "Madison Papers," I have constantly referred to the
edition contained in the fifth (supplementary) volume of Mr. Jonathan
Elliot's "Debates," &c., because it is more accessible to general
readers. The accuracy of that publication, and its full and admirable
Index, make it a very important volume to be consulted in connection
with the subject of this work. In this relation, I may suggest the
desirableness of a new and carefully revised edition of the Journals of
the old Congress;--an enterprise that should be the care of the national
government. A great magazine of materials for our national history, from
the first Continental Congress to the adoption of the Constitution,
exists in those Journals.
CONTENTS
OF
VOLUME FIRST.
BOOK I.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE
COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE
ARTICLES OF CONFEDERATION.
CHAPTER I.
1774-1775.
ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF
THE UNION.--SITUATION OF THE COLONIES BEFORE THE REVOLUTION.
Page
Political Organizations of the Colonies 3
Provincial Governments 4
Proprietary Governments 5
Charter Governments 5
Causes of the Revolution 6
Local Legislatures 7
Power of the Colonies to unite, asserted by the Revolution 8
Reasons why they were enabled to effect the Union 8
A General Congress 10
First Step towards it 11
Assembling of the Congress 13
Delegates 14
Method of Voting 15
Rights of the Colonies 16
Separation from Great Britain not contemplated 18
Relations of the Congress to the Country 19
Authority of Parliament 20
Declaration of Rights 22
Cessation of Exports and Imports 23
Another Congress proposed 25
Royal Government terminated in Massachusetts 25
Provincial Congress of Massachusetts 26
Battle of Lexington 27
CHAPTER II.
1775-1776.
THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF
THE REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A
COMMANDER-IN-CHIEF.--FIRST ARMY OF THE REVOLUTION.
New Continental Congress 28
Delegates 29
Colonies represented 29
Duration of this Congress 30
War commenced 31
Massachusetts and New York apply to the Congress for Direction
and Assistance 31
The Congress proceeds to put the Country into a State of
Defence 32
American Continental Army created 32
Washington chosen Commander-in-Chief 33
Measures to defray the Expenses of War 34
Treasury Department established 35
General Post-office organized 35
Militia 35
Relations with Indian Tribes 35
Royalists 36
The Congress advise Provisional Governments 37
Separation from England determined upon 38
Suppression of the Royal Authority 39
National Union formed before the State Governments 39
The Revolutionary Government 40
Note on Washington's Appointment as Commander-in-Chief 41
CHAPTER III.
1776-1777.
CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF
INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION
OF THE CONTINENTAL ARMY.
Independence proposed 49
Committee to prepare the Declaration 50
Instructions to the Delegates 51
Declaration adopted 51
Consequences of its Adoption 51
The Title "United States of America" first used 52
Articles of Confederation proposed 53
The Revolutionary Congress, the Real Government 54
Power of the Congress 55
General Washington's Position 55
Difficulties which he had to encounter 56
Machinery of Government defective 57
Formation of the Army 58
Remodelling of the Army 59
Difficulties attending it 59
Committee appointed to confer with General Washington 60
Error of Short Enlistments 60
Washington does not concur in their Expediency 60
Powers of the National Government 62
Difficulties attending their Exercise 63
Popular Feeling about the Grievances 64
Tories 65
Officers of the Royal Government in New Hampshire seized 66
General Lee's Offer to seize the Tories of New York 66
He prepares to defend New York 67
Orders to disarm the Tories in Queen's County 68
Orders countermanded 68
Washington's Regret 69
His Directions to Lee 70
Tories of Queen's County arrested 71
Inhabitants of New York alarmed 71
Congress compelled to submit the Subject to the Colonial
Authorities 72
Questions of Prize 73
Origin of the American Navy 73
Vessels fitted out to intercept the Enemy's Supplies 73
Falmouth burned 74
Letters of Marque and Reprisal 75
Prizes captured 75
Adjudication of Prizes 76
Delay in obtaining Decisions 77
Means of defraying the Public Expenses 77
Paper Money issued 78
Delay in Signing the Bills 79
Pressing Wants of the Army 79
Washington borrows Money of the Province of Massachusetts
Bay 80
Defects of the Revolutionary Government 80
Jealousy of Standing Armies 80
Note on the Authorship of the Declaration of Independence 81
CHAPTER IV.
JULY, 1776-NOVEMBER, 1777.
CONSEQUENCES OF THE DECLARATION OF
INDEPENDENCE.--REORGANIZATION OF THE CONTINENTAL
ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN OF THE
CONFEDERATION PROPOSED.
Effect of the Declaration of Independence 89
More vigorous and decisive Measures adopted by the Congress 90
Mischievous Adhesion to State Interests 90
History of the Army 91
General Washington abandons the City of New York 91
Writes to the President of Congress 91
He retreats to the Heights of Haerlem, and again appeals to
Congress 92
The Congress organizes a new Army 92
Number of Battalions raised by each State 93
Inducements to enlist 93
Serious Defects in the Plan 93
Washington suggests a Remedy 94
Promotion of the Officers provided for 95
Another Defect in the Plan 95
Massachusetts and Connecticut offer further Pay to their Men 95
Washington remonstrates 96
Congress augments the Pay of the Army 96
Ill Effects of the System 96
Number of the American Forces near New York 96
Washington's Discouragement 97
His Situation and Trials 97
His Retreat through New Jersey 98
Loss of Philadelphia threatened 99
Washington asks for Extraordinary Powers from the Congress 100
Powers intrusted to him 100
Unsettled Condition of the Political System 101
The Congress apologizes to the Governors of the States 102
Inaccuracy of their Position 103
The States acquiesce in the Powers granted to Washington 104
Articles of Confederation pending in Congress 104
Eminent Men retire from Congress 104
Delegations of the States renewed 105
Striking Instance of State Jealousy 106
Washington requires an Oath of Allegiance to the United
States 107
The Requisition denounced as improper 107
Its Propriety 108
Formation of a new Army 110
Embarrassments in the Formation of the Army 110
Persistence of the States in giving Extra Bounties 110
Bounty offered by Massachusetts 111
Army greatly reduced 111
Washington hindered in his Efforts to plan and carry out a
Campaign 112
Applications for Troops to defend particular Neighborhoods 112
Battle of the Brandywine 113
The Congress leaves Philadelphia 113
Sir William Howe takes Possession of it 113
The Congress removes to Yorktown 113
They resolve to consider the Articles of Confederation 114
The Plan of a Confederacy submitted to the several
Legislatures 114
Necessity for a National Government 114
End of the Revolutionary Government approaching 115
Want of a Civil Executive 115
States engaged in forming Governments 116
Colonies accustomed to the Business of Government 116
Practice of Representation familiar 117
Previous Political Training of the People 118
Distinctions between the Departments of Government 119
Ideas not yet applied to a General Government 120
Union of the People of the United States, as distinguished
from a Union of the States, learned by a bitter Experience 122
First Stage in the Constitutional History of the Country 123
CHAPTER V.
NOVEMBER, 1777-MARCH, 1781.
ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF
WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES.
Adoption of the Articles of Confederation 124
Causes which delayed the Adoption of the Confederation 125
Changes of the Members of Congress 126
The present Congress compared with that of 1776 127
Objections made to the Articles of Confederation 128
Propositions for Amendments rejected 129
Objection made by the State of New Jersey 129
Their Suggestion rejected 130
Claims of the Larger States to Vacant Lands 131
Objection of the Smaller States 131
Assent of Maryland to the Confederation withheld 133
New York authorizes its Delegates in Congress to limit the
Western Boundaries of the State 134
Congress urges other States to surrender a Portion of their
Claims 134
Generous Example of New Jersey 135
Delaware follows it 135
Maryland adopts the Articles of Confederation 136
Virginia yields her Claim to some of her Territory 137
Progress of the People of the United States towards a
National Character 139
Security against a Dissolution of the Confederacy 140
CHAPTER VI.
NATURE AND POWERS OF THE CONFEDERATION.
Nature of the Government established by the Confederation 142
Provisions in the Confederation for the States as separate
Communities 143
Form of Government established by it 143
The Confederation a League for Mutual Defence and Protection 144
Powers of Congress with regard to the External Relations of
the Country 144
Powers of Congress with regard to Internal Affairs 145
Committee of the States to sit in the Recess of Congress 146
Restrictions imposed upon Congress 146
Revenues of the Country 147
No Provision for enforcing Measures adopted by Congress 148
The United States enter upon a New Era of Civil Polity 149
The Confederation demonstrates the Necessity for a more
perfect Union 149
BOOK II.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE
ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE
PEACE OF 1783.
CHAPTER I.
1781-1783.
REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH
ADDRESSES.--PEACE PROCLAIMED.--THE ARMY DISBANDED.
Congress assembles under the Confederation 155
Treaty of Peace signed 155
Treaty of Alliance with France 156
Delay of the States in complying with the Requisitions of
Congress 156
Washington addresses Letters to the States on the Subject of
Finance, and completing their Quotas of Troops 157
Force of the Army 158
Discontents in the Army 158
The Newburgh Addresses 159
Congress votes an Establishment of Half-Pay for the Officers 160
Impracticable Adherence to the Principles of Civil Liberty 161
Provision for the Officers found to be inadequate 162
Congress recommends to the States to make Provision for the
Officers and Soldiers 162
Pennsylvania places her Officers upon Half-Pay for Life 163
Congress pass a Resolve giving Half-Pay for Life to the
Officers 163
Disappointment of the Officers 164
The Congress of the Confederation refuse to redeem the Pledge
of the Revolutionary Congress 164
Officers offer to commute the Half-Pay for Life 165
Breach of Public Faith 166
Situation of Washington 167
Anonymous Address circulated among the Officers at Newburgh 168
Washington forbids an Assemblage at the Call of an Anonymous
Paper 168
He appoints a Day to hear the Report of their Committee 168
The Officers again refer their Claims to the Consideration of
Congress 169
Half-Pay commuted to Five Years' Full Pay 170
The Army disbanded 170
Value of the Votes which fixed the Compensation of the
Officers 171
CHAPTER II.
1781-1783.
FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY
DEBT.--REVENUE SYSTEM OF 1783.
Public Debt of the United States 172
Congress recommend a Duty upon Importations 173
Office of Superintendent of Finance established 174
Rhode Island refuses to grant to Congress the Power of Levying
Duties 174
Virginia repeals the Act by which she had granted this Power
to Congress 175
No Means of paying the Public Debts 175
Another Plan for collecting Revenues recommended to the
States 176
Strong Appeal to the People in Favor of it 177
Claims of the various Classes of the Public Creditors 178
Character of the United States involved 179
The Confederation a Government for Purposes of War 181
Its Great Defects 181
The Moral Feelings an Unsafe Reliance for the Operations of
Government 183
Proofs of this in the History of the Confederation 184
Design of the Framers of the Revenue System 185
Claims of the Army 186
Wisdom of proposing a Scheme of Finance during the Continuance
of the War 186
Influence of the Revenue System of 1783 188
The System of 1783 different from the Present Constitution 188
Note on the Half-Pay for the Officers of the Revolution 190
Note on the Newburgh Addresses 194
CHAPTER III.
1781-1783.
OPINIONS AND EFFORTS OF WASHINGTON, AND OF HAMILTON.--DECLINE
OF THE CONFEDERATION.
Washington's Relations to the People of this Country 200
His Address to them on resigning his Office 201
His Views at the Close of the War 202
Hamilton's Opinions 203
His Advice and Suggestions 204
The Necessity for a Complete Sovereignty in Congress 204
Hamilton's Entry into Congress 206
Nature of a Federal Constitution not understood 206
Hamilton urges the Necessity of vesting the Appointment of
Collectors of Revenue in the General Government 208
Ratio of Contribution by the States to the Treasury uncertain 210
Hamilton desires to change the Principle of the Confederation 211
Advises General Taxes to be collected under Continental
Authority 212
An Attempt to substitute Specific Taxes on Land and Houses 212
It is determined to adopt Population as the Basis of
Contribution 213
Hamilton's Views on a Peace Establishment 214
Committee to arrange the Details of such a System 215
An Army and Navy necessary 216
No Provision in the Articles of Confederation for their
Maintenance during Peace 216
Hamilton advises Federal Provision for Defence 219
Congress driven from Philadelphia 220
Hamilton examines the Confederation 221
Its Defects 222, 223
He proposes to revise it 224
His Plan unsuccessful 224
Improvement in the Revenue System 225
Causes of the Decline of a National Spirit 226
Falling off in the Attendance of Members of Congress 226
Results of the Confederation 228
Its Defects displayed 229
Another Government necessary for the great Duties of Peace 230
BOOK III.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE
PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787.
CHAPTER I.
JANUARY, 1784-MAY, 1787.
DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE
STATES.--REVENUE SYSTEM OF 1783.
State of the Union from 1783 to 1787 233
Dangers and Evils which existed during the Four Years after
the War 234
A New Congress 235
Washington's Resignation 235
Congress urge the Attendance of absent Members 236
Ratification of the Treaty of Peace 237
Congress perpetually in Session during the War 238
Number of Delegates from each State 238
Low State of the Representation 239
Duties of the Government 240
Supplies for the Year 1784 240
How to be obtained 241
Old Requisitions unpaid 241
Supplies necessary for the Year 1785 242
Supplies necessary for the Year 1786 242
Rhode Island and New Jersey propose to pay their Quotas in
their own Paper Currency 242
Inadequacy of Requisitions 243
States which had assented to the Revenue System in February,
1786 244
Congress make known the Public Embarrassments 245
Impost granted by all the States except New York 246
Argument used in Support of her Refusal 247
Hamilton's Answer to it 247
Congress recommend to New York to reconsider the Revenue
System 247
The Governor refuses to summon the Legislature 247
Failure of the Revenue System 248
CHAPTER II.
1784-1787.
INFRACTIONS OF THE TREATY OF PEACE.
Provisions of the Treaty of Peace 249
Departure of the British Troops from the Atlantic Coast 249
Western Posts retained 249
Interests of British Subjects 250
Confiscated Property 250
Power of Confiscation belonging to the United States 252
Refugees 252
State Laws prohibiting the Recovery of British Debts 253
Articles of the Treaty infringed by New York 254, 255
Powers of the Government inadequate 255
Treaty of Peace 256
Violations of its Articles 257
Congress recommend to the States to repeal all Acts repugnant
to the Treaty 258
The two Countries remain in the same Position 259
CHAPTER III.
1786-1787.
NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE
GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS
KINDRED DISTURBANCES.
Defence against External Assaults, the Object of the
Confederation 260
Construction of the State Constitutions 261
Fundamental Doctrine of the American Constitutions 262
Commencement of Discontents in Massachusetts 263
The Confederation without Power to act upon the Internal
Condition of a State 264, 265
State Governments exposed to the Dangers of Anarchy 265
Insurrection in Massachusetts 266
Debt of that State at the Close of the War 266
Decrease of Exports and Fisheries 267
General Condition of the State 267, 268
Private Debts 268
The Tender Act 268
Effects of this Law 269
Shays's Rebellion 269
Firmness of Governor Bowdoin 270
Insurrection suppressed 270
Congress unable to interpose 271
Hostile Disposition of the Western Indians 271
Troops to be raised by the New England States 272
Extent of the Disaffection in New England 273
Beneficial Effect of these Disturbances 273
The Union necessary to the Preservation of Order 274
Washington's Anxieties 274
CHAPTER IV.
ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE.
Inability of the Confederation to manage Foreign Commerce 276
Essential that it should be managed by the United States 277
Views of the Revolutionary Statesmen 277, 278
Commercial Relations of the United States with Foreign
Countries 279
Negotiation of the Treaty with the Netherlands 280
Duties and Imposts 281
Congress without Power to enforce Treaty Stipulations upon
the States 282
Relations of the United States with Great Britain 282
Measure of Mr. Pitt 282
Change of the English Administration 283
Mr. Pitt's Bill 283
Views of the New English Administration 283, 284
American Trade excluded from the British West Indies 284
The three great Branches of American Commerce 285
Congress apply to the States for further Powers 286
Action of the States thereupon 286
Success of Treaties dependent on the Grant of further Powers 287
Incongruities in the Grants of the several States 288
Failure of the Attempt to negotiate Commercial Treaties 289
Discordant Legislation of the States 290
CHAPTER V.
1783-1787.
THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN
TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS.
Relations of Congress to the Public Lands 291
Efforts to procure Cessions from the States 292
Cession by New York 293
Disposal of the Territories 293
Power of Congress to acquire and hold Lands 293
Its Constitutional Authority to deal with acquired Territory 294
Cession of Northwestern Territory by Virginia 295
States to be formed from this Territory 296
Congress pass a Resolve for the Regulation of ceded Territory 296
Principles on which the Government of New States should be
established 297
Provision for admitting New States into the Union 298
Compact between the Old and New States 299
The Public Lands the true Resources for the Payment of the
Public Debt 299
Slavery to be excluded from the New States 299
Cession by Massachusetts and Connecticut of a Portion of their
Territorial Claims 299, 300
Modification by Virginia of her Act of Cession 300
Cession of Lands by South Carolina 301
No other Lands ceded to the United States before 1787 301
Ordinance for the Government of the Northwestern Territory
enacted 302
Its Provisions concerning Property 302
Civil Government of the Territory 303
Laws to be adopted 303
Appointment of Civil Officers 304
Counties and Townships to be formed 304
Representation in the Legislature provided for 304
Articles of Compact between the Original States and the
People and States in the Territory 305, 306
Wisdom of this Scheme of Government 306, 307
Political Difficulties in the Management of this Territory 308
Threatened Loss of the Western Settlements 309, 310
Washington's Plan of uniting the Eastern and Western States 310
He considers the Opening of the Mississippi not important 311
The Southern Boundary of the United States, by the Treaty of
Peace 312
Secret Article in that Treaty 312
Spain refuses to concede the Navigation of the Mississippi 313
Arrival of Guardoqui as Minister from Spain 313
The United States insist on the Right to navigate the
Mississippi 314
The Right refused, but a Commercial Treaty tendered 314
Importance of this Treaty 314
The States divided with Regard to the Mississippi 314, 315
Mr. Jay proposes a Middle Course 315
Treaty to be limited to Twenty-five Years 316
Use of the River to be suspended for the same Period 316
Change in Mr. Jay's Instructions 317
Seizure of American Property at Natchez 318
Inhabitants of the Western Settlements alarmed 318
Richness of their Territory 319
Their Complaints of Congress 320
Their Resolves 321
Retaliatory Seizure of Spanish Property 322
The Executive of Virginia disavows the Act 322
Guardoqui adheres to his Position 323
Committees of Correspondence formed in the West 323
The Inhabitants of Kentucky in Motion 323
Remonstrances of Virginia on the Subject of shutting up the
Mississippi 323
Their Delegates intercede with the Spanish Minister 324
Their Efforts ineffectual 324
The Vote of Seven States attacked in Congress 325
Unconstitutionality of that Vote 325, 326
It is not rescinded 326
Critical Position of the Country 326
The Subject of the Mississippi postponed to await the Action
of the Federal Convention 326, 327
CHAPTER VI.
1783-1787.
DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF
OPINION.--STEPS WHICH LED TO THE CONVENTION OF
1787.--INFLUENCE AND EXERTIONS OF HAMILTON.--MEETING OF THE
CONVENTION.
The Federal Power under the Confederation unequal to the
Discharge of its Duties 328
The Confederation destitute of Political Sovereignty 329
Capacities of the Country 330
Difficulties in the Formation of a Federal Constitution 331
Progress of Opinion upon the Subject of a General
Government 332, 333
Important Centres of Opinion 334
Action of Massachusetts 334
Distress pervading the Commercial Classes 334, 335
Governor Bowdoin's Message 336
The Legislature recommend a General Convention 336, 337
Their Delegates in Congress refuse to present the Resolves 337
Congress desire only a Temporary Power over Commerce 337
Jealousy in Congress of the Changes likely to be made in the
Government 338
The Legislature of Massachusetts rescind their Resolutions 339
Condition of Congress in 1785 339
Action of Virginia 340
Proposed Enlargement of the Powers of Congress over Trade 340
Difficulties between the Citizens of Virginia and Maryland 341
Meeting at Alexandria 341
Report of the Commissioners of Virginia and Maryland to their
Governments 342
Virginia invites a Meeting of Commissioners from all the
States at Annapolis 343
Action of New York 343
Final Appeal by Congress for the Establishment of the Revenue
System of 1783 344
Exertions of Hamilton 345
The Revenue System again rejected by the New York Legislature 346
Commissioners appointed by New York to attend the Commercial
Convention 346
Course of New York upon the Revenue System 346
Five States only represented at Annapolis 347
Hamilton's Original Plan, and its Modification 347, 348
His Report 348
He desires an entirely New System of Government 349
Caution in his Proposal 350
His extensive Views 350
Reception of the Recommendation of the Annapolis Commissioners
in Virginia 351
Objections to it in Congress 352-355
Report of the Commissioners taken into Consideration 355
Opinions of different Members upon the Subject 355
Legal Difficulties in the Way of a Convention 356
Views entertained in Congress 357
Critical State of the Country 357, 358
It impels Congress to Action 358
Influence of the Course of New York upon Congress 358, 359
Their Delegation instructed to move a Convention 360
Failure of this Proposition 360
Adoption of a Resolve proposed by the Massachusetts Members
for the same Purpose 361
Mode of Amendment recommended by Congress 362
Importance of this Action of Congress 362
Dangers of Inaction 363
Importance of the Sanction of the Old Government, in the
Formation of a new one 364
Hamilton's Wisdom 365
Reason for not intrusting the Revision of the System of
Government to Congress 365, 366
Powers of the Convention not defined by Congress 367
Nature of the Crisis 368
Danger of an Attempt to establish Monarchical Government 369
Washington's Opinions 370, 371
Other Difficulties attending the Revision of the Federal
System 371
Sectional Jealousy and its Causes 371, 372
New Idea of a Union 372, 373
Prevailing Feeling among Statesmen concerning the Convention 373
Hamilton fully equal to the Demands of the Crisis 373, 374
Assembling of the Convention 374
Novelty of their Undertaking 374, 375
State of Political Science in Modern Europe 375
The Results of English Liberty 376, 377
French Discussions 377, 378
The English Constitution an imperfect Guide 378
Nature of the Problem 379
CHAPTER VII.
THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF
THE CONVENTION.
Embarrassments attending the Assembling of the Convention 380
Discipline to which the American People had been subjected 381, 382
The Constitution the Result of Circumstances 382
Consequences of a Want of Power in the First Government 383
Its Incapacity 384
Sufferings of the People 384
Civil Liberty the Result of Trial and Suffering 385, 386
Qualities of the Framers of the Constitution 386, 387
Hamilton 387
Washington 388
Madison 388
Franklin 388
Gouverneur Morris 388
Their Characters formed during the Revolution 388, 389
Diversities of Opinion in such an Assembly 389
Patriotism of its Members 390
A Republican System their great Object 390
Slight Value of the Examples of other Countries 391
Necessity for a National Head 392
The New Government established without Violence 393
Washington at Mount Vernon 393, 394
His Opinions upon the Powers of the Federal Government 394-396
His Fears as to the Result of a Convention 396, 397
The Legislature of Virginia desire to place him at the Head
of their Delegation 397
Refuses informally 398
Declines a Re-election as President of the Society of the
Cincinnati 398
Receives Official Notice of his Appointment to the Convention 399
Declines the Appointment 399
The Insurrection in Massachusetts changes his
Determination 399, 400
He leaves Mount Vernon for Philadelphia 401
Is elected President of the Convention 401
His great Object, to secure a Republican Government 402
The Idea of a Monarchical Government entertained to some
Extent 402
Coercive Power necessary in the General Government 403
Washington's Character as a Statesman 404
His Fitness for the Chair of the Convention 405
CHAPTER VIII.
HAMILTON.
Causes why Hamilton is less known at the present Day, than
other Statesmen of the Revolution 406
Immediate Effect of his Death upon the Country 407
His Birth and Education 408
Very early Entrance upon Political Life 408
His Essays on the Rights of the Colonies 408
Appointed Aide-de-Camp to Washington 409
Elected to Congress from New York 409
A Member of the Legislature 409
Delegate to the Federal Convention 409
One of the Authors of the Federalist 409
Elected to the State Convention 409
Secretary of the Treasury 409
Retirement 409
Command of the Provisional Army 409
Practice of the Law 409
Death 409, 410
Character 410-419
CHAPTER IX.
MADISON.
His Birth and Education 420
Entrance into Congress 421
His Influence in inducing Virginia to yield the Northwest
Territory 422
Other important Services in the Congress of the
Confederation 422, 423
Retires to Virginia 423
Efforts for the Enlargement of Commercial Powers 423, 424
His Connection with the Events which led to the Convention 424-427
Appointed one of the Commissioners to Annapolis 427
Drafts the Act of Virginia appointing Delegates to the Federal
Convention 427
His Labors in the Convention 427, 428
Records the Debates 428
His Character 428-431
CHAPTER X.
FRANKLIN.
His long Career of Public Service 433, 434
His distinguished Residences abroad 434, 435
Importance and Influence of his Presence in the Convention 435-437
His Objections to the Constitution 437
Sacrifices them to the Public Good 437
His Efforts to produce Unanimity 437, 438
CHAPTER XI.
GOUVERNEUR MORRIS.
Birth and Education 440
Views on the Independence of America 441
Services in Congress 442
Appointed Assistant Financier 443
Elected to the Federal Convention 444
His Character 444-447
CHAPTER XII.
KING.
Birth and Education 448
Elected to Congress 448
His Opinions on the Subject of a Federal Convention 449
His Views of the Insurrection in Massachusetts 450
Disappointment concerning the Powers of the Confederation 450
Change of Opinion 450, 451
View of the true Principle for the new Government 451
Introduces the Prohibition against Laws affecting the
Obligation of Contracts 452
His Character 453
CHAPTER XIII.
CHARLES COTESWORTH PINCKNEY.
Descent and Education 454
Military Career 454
Appointed to the Federal Convention 455
His Course on the Slave-Trade, and the Regulation of Commerce 456
Vindication of the Framers of the Constitution 456-460
Note on the Abolition of the Slave-Trade 460
CHAPTER XIV.
WILSON.
Birth and Education 462
Emigration to America 462
Services in Congress 462, 463
His Opinions in the Convention 463, 464
Exertions for a Representative Government 464
Appointed Judge of the Supreme Court of the United States 465
His Speech on the Constitution in the Pennsylvania
Convention 465-479
CHAPTER XV.
RANDOLPH.
An Aide-de-camp to Washington 480
Services in Congress 480
Elected Governor of Virginia 481
Procures the Attendance of Washington 481
His Opinions on the Constitution, and the existing Crisis 481-485
Genealogy 485
CHAPTER XVI.
CONCLUSION OF THE PRESENT VOLUME.
The Other Members of the Convention 486, 487
Responsible Position of the American People 487, 488
APPENDIX.
Circular Letter of Congress recommending the Articles of
Confederation 491
Representation of New Jersey on the Articles of Confederation 493
Act of New Jersey accepting the Confederation 497
Resolutions passed by the Council of Delaware respecting the
Articles of Confederation 498
Act to authorize the Delegates of the Delaware State to ratify
the Articles of Confederation 500
Instructions of the General Assembly of Maryland to their
Delegates, respecting the Articles of Confederation 501
Act of the Legislature of New York, to facilitate the
Completion of the Articles of Confederation and Perpetual
Union among the United States of America 505
Report of the Committee of Congress as to the Proceedings of
the Legislatures of Maryland, New York, and Virginia in
Relation to the Articles of Confederation 506
Act to empower the Delegates of Maryland to ratify the
Articles of Confederation 508
Articles of Confederation and Perpetual Union between the
States 509
Members of the Convention which formed the Constitution 516
BOOK I.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT
OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION.
CHAPTER I.
1774-1775.
ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS.--ORIGIN OF THE UNION.
The thirteen British colonies in North America, by whose inhabitants the
American Revolution was achieved, were, at the commencement of that
struggle, so many separate communities, having, to a considerable
extent, different political organizations and different municipal laws:
but their various populations spoke almost universally the English
language. These colonies were Virginia, Massachusetts, New Hampshire,
Connecticut, Rhode Island, Maryland, New York, New Jersey, Pennsylvania,
Delaware, North Carolina, South Carolina, and Georgia. From the times
when they were respectively settled, until the union formed under the
necessities of a common cause at the breaking out of the Revolution,
they had no political connection; but each possessed a domestic
government peculiar to itself, derived directly from the crown of
England, and more or less under the direct control of the mother
country.
The political organizations of the colonies have been classed by jurists
and historians under the three heads of Provincial, Proprietary, and
Charter governments.
To the class of Provincial governments belonged the Provinces of New
Hampshire, New Jersey, Virginia, the two Carolinas, and Georgia. These
had no other written constitutions, or fundamental laws, than the
commissions issued to the Governors appointed by the crown, explained by
the instructions which accompanied them. The Governor, by his
commission, was made the representative or deputy of the King, and was
obliged to act in conformity with the royal instructions. He was
assisted by a Council, the members of which, besides participating with
him, to a certain extent, in the executive functions of the government,
constituted the upper house of the provincial legislature; and he was
also authorized to summon a general assembly of representatives of the
freeholders of the Province. The three branches thus convened,
consisting of the Governor, the Council, and the Representatives,
constituted the provincial Assemblies, having the power of local
legislation, subject to the ratification and disapproval of the crown.
The direct control of the crown over these provincial governments may
also be traced in the features, common to them all, by which the
Governor had power to suspend the members of the Council from office,
and, whenever vacancies occurred, to appoint to those vacancies, until
the pleasure of the crown should be known; to negative all the
proceedings of the assembly; and to prorogue or dissolve it at his
pleasure.
The Proprietary governments, consisting of Maryland, Pennsylvania, and
Delaware, were those in which the subordinate powers of legislation and
government had been granted to certain individuals called the
proprietaries, who appointed the Governor and authorized him to summon
legislative assemblies. The authority of the proprietaries, or of the
legislative bodies assembled by the Governor, was restrained by the
condition, that the ends for which the grant was made to them by the
crown should be substantially pursued in their legislation, and that
nothing should be done, or attempted, which might derogate from the
sovereignty of the mother country. In Maryland, the laws enacted by the
proprietary government were not subject to the direct control of the
crown; but in Pennsylvania and Delaware they were.[2]
The Charter governments, consisting, at the period of the Revolution, of
Massachusetts, Rhode Island, and Connecticut, may be said, in a stricter
sense, to have possessed written constitutions for their general
political government. The charters, granted by the crown, established an
organization of the different departments of government similar to that
in the provincial governments. In Massachusetts, after the charter of
William and Mary granted in 1691, the Governor was appointed by the
crown; the Council were chosen annually by the General Assembly, and the
House of Representatives by the people. In Connecticut and Rhode
Island, the Governor, Council, and Representatives were chosen annually
by the freemen of the colony. In the charter, as well as the provincial
governments, the general power of legislation was restrained by the
condition, that the laws enacted should be, as nearly as possible,
agreeable to the laws and statutes of England.
One of the principal causes which precipitated the war of the Revolution
was the blow struck by Parliament at these charter governments,
commencing with that of Massachusetts, by an act intended to alter the
constitution of that Province as it stood upon the charter of William
and Mary; a precedent which justly alarmed the entire continent, and in
its principle affected all the colonies, since it assumed that none of
them possessed constitutional rights which could not be altered or taken
away by an act of Parliament. The "Act for the better regulating the
government of the Province of Massachusetts Bay," passed in 1774, was
designed to create an executive power of a totally different character
from that created by the charter, and also to remodel the judiciary, in
order that the laws of the imperial government might be more certainly
enforced.
The charter had reserved to the King the appointment of the Governor,
Lieutenant-Governor, and Secretary of the Province. It vested in the
General Assembly the choice of twenty-eight councillors, subject to
rejection by the Governor; it gave to the Governor, with the advice and
consent of the Council, the appointment of all military and judicial
officers, and to the two houses of the legislature the appointment of
all other civil officers, with a right of negative by the Governor. The
new law vested the appointment of councillors, judges, and magistrates
of all kinds, in the crown, and in some cases in the Governor, and made
them all removable at the pleasure of the crown. A change so radical as
this, in the constitution of a people long accustomed to regard their
charter as a compact between themselves and the crown, could not but
lead to the most serious consequences.
* * * * *
The statements which have now been made are sufficient to remind the
reader of the important fact, that, at the commencement of the
Revolution, there existed, and had long existed, in all the colonies,
local legislatures, one branch of which was composed of representatives
chosen directly by the people, accustomed to the transaction of public
business, and being in fact the real organs of the popular will. These
bodies, by virtue of their relation to the people, were, in many
instances, the bodies which took the initiatory steps for the
organization of the first national or Continental Congress, when it
became necessary for the colonies to unite in the common purpose of
resistance to the mother country. But it should be again stated, before
we attend to the steps thus taken, that the colonies had no direct
political connection with each other before the Revolution commenced,
but that each was a distinct community, with its own separate political
organization, and without any power of legislation for any but its own
inhabitants; that, as political communities, and upon the principles of
their organizations, they possessed no power of forming any union among
themselves, for any purpose whatever, without the sanction of the Crown
or Parliament of England.[3] But the free and independent power of
forming a union among themselves, for objects and purposes common to
them all, which was denied to their colonial condition by the principles
of the English Constitution, was one of the chief powers asserted and
developed by the Revolution; and they were enabled to effect this union,
as a revolutionary right and measure, by the fortunate circumstances of
their origin, which made the people of the different colonies, in
several important senses, one people. They were, in the first place,
chiefly the descendants of Englishmen, governed by the laws, inheriting
the blood, and speaking the language of the people of England. As
British subjects, they had enjoyed the right of dwelling in any of the
colonies, without restraint, and of carrying on trade from one colony to
another, under the regulation of the general laws of the empire, without
restriction by colonial legislation. They had, moreover, common
grievances to be redressed, and a common independence to establish, if
redress could not be obtained: for although the precise grounds of
dispute with the Crown or the Parliament of England had not always been
the same in all the colonies, yet when the Revolution actually broke
out, they all stood in the same attitude of resistance to the same
oppressor, making common cause with each other, and resting upon certain
great principles of liberty, which had been violated with regard to many
of them, and with the further violation of which all were threatened.
* * * * *
It was while the controversies between the mother country and the
colonies were drawing towards a crisis, that Dr. Franklin, then in
England as the political agent of Pennsylvania, of Massachusetts, and of
Georgia, in an official letter to the Massachusetts Assembly, dated July
7th, 1773, recommended the assembling of a general congress of all the
colonies. "As the strength of an empire," said he, "depends not only on
the _union_ of its parts, but on their readiness for united exertion of
their common force; and as the discussion of rights may seem
unseasonable in the commencement of actual war, and the delay it might
occasion be prejudicial to the common welfare; as likewise the refusal
of one or a few colonies would not be so much regarded, if the others
granted liberally, which perhaps by various artifices and motives they
might be prevailed on to do; and as this want of concert would defeat
the expectation of general redress, that might otherwise be justly
formed; perhaps it would be best and fairest for the colonies, in a
general congress now in peace to be assembled, or by means of the
correspondence lately proposed, after a full and solemn assertion and
declaration of their rights, to engage firmly with each other, that they
will never grant aids to the crown in any general war, till those rights
are recognized by the King and both houses of Parliament; communicating
at the same time to the crown this their resolution. Such a step I
imagine will bring the dispute to a crisis."[4]
The first actual step towards this measure was taken in Virginia. A new
House of Burgesses had been summoned by the royal Governor to meet in
May, 1774. Soon after the members had assembled at Williamsburg, they
received the news that, by an act of Parliament, the port of Boston was
to be closed on the first day of the succeeding June, and that other
disabilities were to be inflicted on the town. They immediately passed
an order, setting apart the first day of June as a day of fasting,
humiliation, and prayer, "to implore the Divine interposition for
averting the heavy calamity which threatened destruction to their civil
rights, and the evils of civil war, and to give them one heart and one
mind firmly to oppose, by all just and proper means, every injury to
American rights." Thereupon, the Governor dissolved the House. But the
members immediately assembled at another place of meeting, and, having
organized themselves as a committee, drew up and subscribed an
Association, in which they declared that the interests of all the
colonies were equally concerned in the late doings of Parliament, and
advised the local Committee of Correspondence to consult with the
committees of the other colonies on the expediency of holding a general
Continental Congress. Pursuant to these recommendations, a popular
convention was holden at Williamsburg, on the 1st of August, which
appointed seven persons as delegates to represent the people of Virginia
in a general Congress to be held at Philadelphia in the September
following.[5]
The Massachusetts Assembly met on the last of May, and, after negativing
thirteen of the Councillors, Governor Gage adjourned the Assembly to
meet at Salem on the 7th of June. When they came together at that place,
the House of Representatives passed a resolve, declaring a meeting of
committees from the several colonies on the continent to be highly
expedient and necessary, to deliberate and determine upon proper
measures to be recommended to all the colonies for the recovery and
establishment of their just rights and liberties, civil and religious,
and for the restoration of union and harmony with Great Britain. They
then appointed five delegates[6] to meet the representatives of the
other colonies in congress at Philadelphia, in the succeeding September.
These examples were at once followed by the other colonies. In some of
them, the delegates to the Continental Congress were appointed by the
popular branch of the legislature, acting for and in behalf of the
people; in others, they were appointed by conventions of the people
called for the express purpose, or by committees duly authorized to make
the appointment.[7] The Congress, styling themselves "the delegates
appointed by the good people of these colonies," assembled at
Philadelphia on the 5th of September, 1774, and organized themselves as
a deliberative body by the choice of officers and the adoption of rules
of proceeding. Peyton Randolph of Virginia was elected President, and
Charles Thompson of Pennsylvania Secretary of the Congress.
No precedent existed for the mode of action to be adopted by this
assembly. There was, therefore, at the outset, no established principle
which might determine the nature of the union; but that union was to be
shaped by the new circumstances and relations in which the Congress
found itself placed. There had been no general concert among the
different colonies as to the numbers of delegates, or, as they were
called in many of the proceedings, "committees" of the colonies, to be
sent to the meeting at Philadelphia. On the first day of their
assembling, Pennsylvania and Virginia had each six delegates in
attendance; New York had five; Massachusetts, New Jersey, and South
Carolina had four each; Connecticut had three; New Hampshire, Rhode
Island, Delaware, and Maryland had two each. The delegates from North
Carolina did not arrive until the 14th.[8]
As soon as the choice of officers had taken place,[9] the method of
voting presented itself as the first thing to be determined; and the
difficulties arising from the inequalities between the colonies in
respect to actual representation, population, and wealth, had to be
encountered upon the threshold. Insuperable obstacles stood in the way
of the adoption of interests as the basis of votes. The weight of a
colony could not be ascertained by the numbers of its inhabitants, the
amount of their wealth, the extent of their trade, or by any ratio to be
compounded of all these elements, for no authentic evidence existed from
which data could be taken.[10] As it was apparent, however, that some
colonies had a larger proportion of members present than others,
relatively to their size and importance, it was thought to be equally
objectionable to adopt the method of voting by polls. In these
circumstances, the opinion was advanced, that the colonial governments
were at an end; that all America was thrown into one mass, and was in a
state of nature; and consequently, that the people ought to be
considered as represented in the Congress according to their numbers, by
the delegations actually present.[11] Upon this principle, the voting
should have been by polls.
But neither the circumstances under which they were assembled, nor the
dispositions of the members, permitted an adoption of the theory that
all government was at an end, or that the boundaries of the colonies
were effaced. The Congress had not assembled as the representatives of a
people in a state of nature, but as the committees of different
colonies, which had not yet severed themselves from the parent state.
They had been clothed with no legislative or coercive authority, even of
a revolutionary nature; compliance with their resolves would follow only
on conviction of the utility of their measures; and all their resolves
and all their measures were, by the express terms of many of their
credentials, limited to the restoration of union and harmony with Great
Britain, which would of course leave the colonies in their colonial
state. The people of the continent, therefore, as a people in the state
of nature, or even in a national existence as one people standing in a
revolutionary attitude, had not then come into being.
The nature of the questions, too, which they were to discuss, and of the
measures which they were to adopt, were to be considered in determining
by what method of voting those questions and measures should be decided.
The Congress had been called to secure the _rights_ of the colonies.
What were those rights? By what standard were they to be ascertained? By
the law of nature, or by the principles of the English Constitution, or
by the charters and fundamental laws of the colonies, regarded as
compacts between the crown and the people, or by all of these combined?
If the law of nature alone was to determine their rights, then all
allegiance to the British crown was to be regarded as at an end. If the
principles of the English Constitution, or the charters, were to be the
standard, the law of nature must be excluded from consideration. This
exclusion would of necessity narrow the ground, and deprive them of a
resource to which Parliament might at last compel them to look.[12] In
order, therefore, to leave the whole field open for consideration, and
at the same time to avoid committing themselves to principles
irreconcilable with the preservation of allegiance and their colonial
relation to Great Britain, it was necessary to consider themselves as an
assembly of committees from the different colonies, in which each colony
should have one voice, through the delegates whom it had sent to
represent and act for it. But, as if foreseeing the time when population
would become of necessity the basis of congressional power, when the
authority of Parliament should have given place to a system of American
continental legislation, they inserted, in the resolve determining that
each colony should have one vote, a caution that would prevent its being
drawn into precedent. They declared, as the reason for the course which
they adopted, that the Congress were not possessed of, or able to
procure, the proper materials for ascertaining the importance of each
colony.[13]
It appears, therefore, very clear, that an examination of the relations
of the first Congress to the colonies which instituted it will not
enable us to assign to it the character of a government. Its members
were not elected for the express purpose of making a revolution. It was
an assembly convened from separate colonies, each of which had causes of
complaint against the imperial government to which it acknowledged its
allegiance to be due, and each of which regarded it as essential to its
own interests to make common cause with the others, for the purpose of
obtaining redress of its own grievances. The idea of separating
themselves from the mother country had not been generally entertained by
the people of any of the colonies. All their public proceedings, from
the commencement of the disputes down to the election of delegates to
the first Congress, including the instructions given to those delegates,
prove, as we have seen, that they looked for redress and relief to means
which they regarded as entirely consistent with the principles of the
British Constitution.[14]
Still, although this Congress did not take upon themselves the functions
of a government, or propose revolution as a remedy for the wrongs of
their constituents, they regarded and styled themselves as "the
guardians of the rights and liberties of the colonies";[15] and in that
capacity they proceeded to declare the causes of complaint, and to take
the necessary steps to obtain redress, in what they believed to be a
constitutional mode. These steps, however, although not directly
revolutionary, had a revolutionary tendency.
On the 6th of September, 1774, a resolve was passed, that a committee be
appointed to state the rights of the colonies in general, the several
instances in which those rights had been violated or infringed, and the
means most proper to be pursued for obtaining a restoration of them.
Another committee was ordered on the same day, to examine and report the
several statutes affecting the trade and manufactures of the colonies.
On the following day, it was ordered that the first committee should
consist of two members, and the second of one member, from each of the
colonies.[16] Two questions presented themselves to the first of these
committees, and created a good deal of embarrassment. The first was,
whether, in stating the rights of the colonies, they should recur to the
law of nature, as well as to the British Constitution and the American
charters and grants. The second question related to the authority which
they should allow to be in Parliament;--whether they should deny it
wholly, or deny it only as to internal affairs, admitting it as to
external trade; and if the latter, to what extent and with what
restrictions. It was soon felt that this question of the authority of
Parliament was the essence of the whole controversy. Some denied it
altogether. Others denied it as to every species of taxation; while
others admitted it to extend to the regulation of external trade, but
denied it as to all internal affairs. The discussions had not proceeded
far, before it was perceived that this subject of the regulation of
trade might lead directly to the question of the continuance of the
colonial relations with the mother country. For this they were not
prepared. It was apparent that the right of regulating the trade of the
whole country, from the local circumstances of the colonies and their
disconnection with each other, could not be exercised by the colonies
themselves: it was thought that the aid, assistance, and protection of
the mother country were necessary to them; and therefore, as a proper
equivalent, that the colonies must admit the right of regulating the
trade, to some extent and in some mode, to be in Parliament. The
alternatives were, either to set up an American legislature, that could
control and regulate the trade of the whole country, or else to give the
power to Parliament. The Congress determined to do the latter; supposing
that they could limit the admission, by denying that the power extended
to taxation, but ceding at the same time the right to regulate the
external trade of the colonies for the common benefit of the whole
empire.[17] They grounded this concession upon "the necessities of the
case," and "the mutual interests of both countries";[18] meaning by
these expressions to assert that all legislative control over the
external and internal trade of the colonies belonged of right to the
colonies themselves, but, as they were part of an empire for which
Parliament legislated, it was necessary that the common legislature of
the whole empire should retain the regulation of the external trade,
excluding all power of taxation for purposes of revenue, in order to
secure the benefits of the trade of the whole empire to the mother
country.
The Congress, therefore, after having determined to confine their
statement to such rights as had been infringed by acts of Parliament
since the year 1763, unanimously adopted a Declaration of Rights, in
which they summed up the grievances and asserted the rights of the
colonies. This document placed the rights of the colonies upon the laws
of nature, the principles of the English Constitution, and the several
charters or compacts. It declared, that, as the colonies were not, and
from their local situation could not be, represented in the English
Parliament, they were entitled to a free and exclusive power of
legislation in their several provincial legislatures, where their right
of representation could alone be preserved, in all cases of taxation and
internal polity, subject only to the negative of their sovereign, in
such manner as had been before accustomed. At the same time, from the
necessity of the case and from a regard to the mutual interests of both
countries, they cheerfully consented to the operation of such acts of
Parliament as were in good faith limited to the regulation of their
external commerce, for the purpose of securing the commercial advantages
of the whole to the mother country, and the commercial benefit of its
respective members; excluding every idea of taxation, internal and
external, for raising a revenue on the subjects in America, without
their consent.[19]
In addition to this, they asserted, as great constitutional rights
inherent in the people of all these colonies, that they were entitled to
all the rights, liberties, and immunities of free and natural-born
subjects within the realm of England; to the common law of England, and
especially to trial by a jury of the vicinage; to the immunities and
privileges granted and confirmed to them by royal charters, or secured
by their several codes of provincial laws; and to the right of peaceably
assembling to consider grievances and to petition the King.[20]
In order to enforce their complaints upon the attention of the
government and people of Great Britain, and as the sole means which were
open to them, short of actual revolution, of coercing the ministry into
a change of measures, they resolved that after the 10th of September,
1775, the exportation of all merchandise, and every commodity
whatsoever, to Great Britain, Ireland, and the West Indies, ought to
cease, unless the grievances of America should be redressed before that
time; and that after the first day of December, 1774, there should be no
importation into British America, from Great Britain or Ireland, of any
goods, wares, or merchandise whatever, or from any other place, of any
such goods, wares, or merchandise as had been exported from Great
Britain or Ireland, and that no such goods, wares, or merchandise be
used or purchased.[21] They then prepared an association, or agreement,
of non-importation, non-exportation, and non-consumption, in order, as
far as lay in their power, to cause a general compliance with their
resolves. This association was subscribed by every member of the
Congress, and was by them recommended for adoption to the people of the
colonies, and was very generally adopted and acted upon.[22] They
resorted to this as the most speedy, effectual, and peaceable measure to
obtain a redress of the grievances of which the colonies complained; and
they entered into the agreement on behalf of the inhabitants of the
several colonies for which they acted.
* * * * *
This Congress, which sat from the 5th of September to the 26th of
October, 1774, had thus made the restoration of commercial intercourse
between the colonies and the other parts of the British empire to depend
upon the repeal by Parliament of the obnoxious measures of which they
complained, and upon the recognition of the rights which they asserted;
for although their acts had not the foundation of laws, the general
adoption of their recommendations throughout the colonies gave them a
power that laws rarely possess. Before they adjourned, they recommended
that another Congress of all the colonies should be held at Philadelphia
on the 10th of the following May, unless their grievances were redressed
before that time, and that the deputies to such new Congress should be
chosen immediately.[23]
But while the Continental Congress were engaged in the adoption of these
measures of constitutional resistance, and still acknowledged their
colonial relations to the imperial government, the course of events in
Massachusetts had put an end to the forms of law and government in that
colony, as established or upheld by imperial authority. The last
Assembly held in the Province upon the principles of its charter had
been dissolved by the Governor's proclamation, at Salem, on the 17th of
June, 1774. The new law for the alteration of the government had taken
effect; and in August the Governor received from England a list of
thirty-six councillors, who were to be called into office by the King's
writ of _mandamus_, instead of being elected, as under the charter, by
the House of Representatives. Two thirds of the number accepted their
appointment; but popular indignation, treating them as enemies of their
country, compelled the greater part of them to renounce their offices.
The new judges were prevented everywhere from proceeding with the
business of the courts, which were obstructed by assemblies of the
people, who would permit no judge to exercise his functions, save in
accordance with the ancient laws and usages of the Colony.
Writs had been issued for a new General Assembly, which was to meet at
Salem in October; but it was found, that, while the old constitution had
been taken away by act of Parliament, the new one had been rejected by
the people. The compulsory resignation of so many of the councillors
left that body without power, and the Governor deemed it expedient to
countermand the writs by proclamation, and to defer the holding of the
Assembly until the popular temper should have had time to cool. But the
legality of the proclamation was denied; the elections were everywhere
held, and the members elect assembled at Salem, pursuant to the
precepts. There they waited a day for the Governor to attend, administer
the oaths, and open the session; but as he did not appear, they resolved
themselves into a Provincial Congress, to be joined by others who had
been or might be elected for that purpose, and adjourned to the town of
Cambridge, to take into consideration the affairs of the Colony, in
which the regular and established government was now at an end. Their
acts were at first couched in the form of recommendations to the people,
whose ready compliance gave to them the weight and efficacy of laws,
and there was thus formed something like a new and independent
government. Under the form of recommendation and advice, they settled
the militia, regulated the public revenue, provided arms, and prepared
to resist the British troops. In December, 1774, they elected five
persons to represent the Colony in the Continental Congress that was to
assemble at Philadelphia in the ensuing May. They were met by a
proclamation, issued by the Governor, in which their assembly was
declared unlawful, and the people were prohibited, in the King's name,
from complying with their recommendations, requisitions, or resolves.
Through the winter, the Governor held the town of Boston, with a
considerable body of royal troops, but the rest of the Province
generally yielded obedience to the Provincial Congress. In this posture
of affairs, the encounter between a detachment of the King's forces and
a body of militia, commonly called the battle of Lexington, occurred, on
the 19th of April, 1775.
FOOTNOTES:
[2] Story's Commentaries on the Constitution, § 160.
[3] That a union of the colonies into one general government, for any
purpose, could not take place without the sanction of Parliament, was
always assumed in both countries. The sole instance in which a plan of
union was publicly proposed and acted upon, before the Revolution, was
in 1753-4, when the Board of Trade sent instructions to the Governor of
New York to make a treaty with the Six Nations of Indians; and the other
colonies were also instructed to send commissioners to be present at the
meeting, so that all the provinces might be comprised in one general
treaty, to be made in the King's name. It was also recommended by the
home government, that the commissioners at this meeting should form a
plan of union among the colonies for their mutual protection and defence
against the French. Twenty-five commissioners assembled at Albany in
May, 1754, from New Hampshire, Massachusetts, Rhode Island, Connecticut,
New York, Pennsylvania, and Maryland. In this body, a plan of union was
digested and adopted, which was chiefly the work of Dr. Franklin. It was
agreed that an act of Parliament was necessary to authorize it to be
carried into effect. It was rejected by all the colonial Assemblies
before which it was brought, and in England it was not thought proper by
the Board of Trade to recommend it to the King. In America it was
considered to have too much of _prerogative_ in it, and in England to be
too _democratic_. It was a comprehensive scheme of government, to
consist of a Governor-General, or President-General, who was to be
appointed and supported by the crown, and a Grand Council, which was to
consist of one member chosen by each of the smaller colonies, and two or
more by each of the larger. Its duties and powers related chiefly to
defence against external attacks. It was to have a general treasury, to
be supplied by an excise on certain articles of consumption. See the
history and details of the scheme, in Sparks's Life and Works of
Franklin, I. 176, III. 22-55; Hutchinson's History of Massachusetts,
III. 23; Trumbull's History of Connecticut, II. 355; Pitkin's History of
the United States, I. 140-146. In 1788, Franklin said of it: "The
different and contradictory reasons of dislike to my plan make me
suspect that it was really the true medium; and I am still of opinion it
would have been happy for both sides, if it had been adopted. The
colonies so united would have been sufficiently strong to have defended
themselves: there would have been no need of troops from England: of
course the subsequent pretext for taxing America, and the bloody contest
it occasioned, would have been avoided. But such mistakes are not new:
history is full of the errors of states and princes." (Life, by Sparks,
I. 178.) We may not join in his regrets now.
[4] It is not certain by whom the first suggestion of a Continental
Congress was made. Thomas Cushing, Speaker of the Massachusetts
Assembly, and a correspondent of Dr. Franklin, appears to have expressed
to him the opinion, previously to the date of Franklin's official letter
quoted in the text, that a congress would grow out of the committees of
correspondence which had been recommended by the Virginia House of
Burgesses. But Mr. Sparks thinks that no other direct and public
recommendation of the measure can be found before the date of Franklin's
letter to the Massachusetts Assembly. Sparks's Life of Franklin, I. 350,
note. In the early part of the year 1774, the necessity of such a
congress began to be popularly felt throughout all the colonies.
Sparks's Washington, II. 326.
[5] These delegates were Peyton Randolph, Richard Henry Lee, George
Washington, Patrick Henry, Richard Bland, Benjamin Harrison, and Edmund
Pendleton.
[6] Thomas Cushing, Samuel Adams, Robert Treat Paine, James Bowdoin, and
John Adams.
[7] The delegates in the Congress of 1774 from New Hampshire were
appointed by a Convention of Deputies chosen by the towns, and received
their credentials from that Convention. In Rhode Island, they were
appointed by the General Assembly, and commissioned by the Governor. In
Connecticut, they were appointed and instructed by the Committee of
Correspondence for the Colony, acting under authority conferred by the
House of Representatives. In New York, the mode of appointment was
various. In the city and county of New York, the delegates were elected
by popular vote taken in seven wards. The same persons were also
appointed to act for the counties of West Chester, Albany, and Duchess,
by the respective committees of those counties; and another person was
appointed in the same manner for the county of Suffolk. The New York
delegates received no other instructions than those implied in the
certificates, "to attend the Congress and to represent" the county
designated. In New Jersey, the delegates were appointed by the
committees of counties, and were simply instructed "to represent" the
Colony. In Pennsylvania, they were appointed and instructed by the House
of Assembly. In the counties of New Castle, Kent, and Sussex on
Delaware, delegates were elected by a convention of the freemen
assembled in pursuance of circular letters from the Speaker of the House
of Assembly. In Maryland, the appointment was by committees of the
counties. In Virginia, it was by a popular convention of the whole
Colony. In South Carolina, it was by the House of Commons. Georgia was
not represented in this Congress.
[8] Journals, I. 1, 12.
[9] The President and Secretary appear to have been chosen _viva voce_
or by a hand vote. John Adam's Works, II. 365.
[10] Adams, II. 366.
[11] This opinion, we are told by Mr. Adams, was advanced by Patrick
Henry. See notes of the debate, in Adams, II. 366, 368.
[12] See the very interesting notes of their debates in Adams's Works,
II. 366, 370-377.
[13] Journals, I. 10.
[14] The instructions embraced in the credentials of the delegates to
the first Congress were as follows:--NEW HAMPSHIRE,--"to devise,
consult, and adopt such measures as may have the most likely tendency to
extricate the colonies from their present difficulties; to secure and
perpetuate their rights, liberties, and privileges; and to restore that
peace, harmony, and mutual confidence which once happily subsisted
between the parent country and her colonies." MASSACHUSETTS,--"to
deliberate and determine upon wise and proper measures, to be by them
recommended to all the colonies, for the recovery and establishment of
their just rights and liberties, civil and religious, and the
restoration of union and harmony between Great Britain and the colonies,
most ardently desired by all good men." RHODE ISLAND,--"to meet and join
with the other commissioners or delegates from the other colonies in
consulting upon proper measures to obtain a repeal of the several acts
of the British Parliament for levying taxes upon his Majesty's subjects
in America without their consent, and particularly the commercial
connection of the colonies with the mother country, for the relief of
Boston and the preservation of American liberty." VIRGINIA,--"to
consider of the most proper and effectual manner of so operating on the
commercial connection of the colonies with the mother country, as to
procure redress for the much injured Province of Massachusetts Bay, to
secure British America from the ravage and ruin of arbitrary taxes, and
speedily to procure the return of that harmony and union so beneficial
to the whole empire, and so ardently desired by all British America."
SOUTH CAROLINA,--"to consider the acts lately passed and bills depending
in Parliament with regard to the port of Boston and Colony of
Massachusetts Bay, which acts and bills, in the precedent and
consequences, affect the whole continent of America;--also the
grievances under which America labors by reason of the several acts of
Parliament that impose taxes or duties for raising a revenue, and lay
unnecessary restraints and burdens on trade;--and of the statutes,
parliamentary acts, and royal instructions, which make an invidious
distinction between his Majesty's subjects in Great Britain and America;
with full power and authority to concert, agree to, and effectually
prosecute such legal measures as, in the opinion of the said deputies
and of the deputies so to be assembled, shall be most likely to obtain a
repeal of the said acts and a redress of these grievances." The
delegates from New York and New Jersey were simply instructed "to
represent" those colonies in the Congress. Journals, I. 2-9.
[15] Letter of the Congress to Governor Gage, October 10, 1774.
Journals, I. 25, 26.
[16] Additions were made to it.
[17] Works of John Adams.
[18] See the origin of these expressions explained, in Adams's Works,
II. 373-375.
[19] Journals, I. 29.
[20] Ibid. They adopted also an Address to the People of Great Britain,
and a Petition to the King, embodying similar principles with those
asserted in the Declaration of Rights. Ibid. 38, 67.
[21] Journals, I. 21.
[22] This association, signed by the delegates, of Maryland, Virginia,
North Carolina, and South Carolina, as well as of the other colonies,
contained, among other things, the following agreement:--"We will
neither import nor purchase any slaves imported after the first day of
December next; after which time we will wholly discontinue the
slave-trade, and will neither be concerned in it ourselves, nor will we
hire our vessels, nor sell our commodities or manufactures, to those who
are concerned in it." Journals, I. 33.
[23] Journals, I. 56. Oct. 22, 1774.
CHAPTER II
1775-1776.
THE SECOND CONTINENTAL CONGRESS.--FORMATION AND CHARACTER OF THE
REVOLUTIONARY GOVERNMENT.--APPOINTMENT OF A COMMANDER-IN-CHIEF.--FIRST
ARMY OF THE REVOLUTION.
A new Continental Congress assembled at Philadelphia on the 10th of May,
1775; and in order to observe the growth of the Union, it is necessary
to trace the organization of this body, and to describe briefly the kind
of sovereignty which it exercised, from the time of its assembling until
the adoption and promulgation of the Declaration of Independence.[24]
The delegates to this Congress were chosen partly by the popular branch
of such of the colonial legislatures as were in session at the time, the
choice being afterwards ratified by conventions of the people; but they
were principally appointed by conventions of the people held in the
various colonies. All these appointments, except those made in New York,
took place before the battle of Lexington, and most of them had been
made in the course of the previous winter.[25] The credentials of the
delegates, therefore, while they conferred authority to adopt measures
to recover and establish American rights, still expressed, in many
instances, a desire for the restoration of harmony between Great Britain
and her colonies. In some cases, however, this desire was not expressed,
but a naked authority was granted, to consent and agree to all such
measures as the Congress should deem necessary and effectual to obtain a
redress of American grievances.
When this Congress assembled, it seems to have been tacitly assumed that
each colony should continue to have one vote through its delegation
actually present. All the thirteen colonies were represented at the
opening of the session, except Georgia and Rhode Island. Three days
after the session commenced, a delegate appeared from the Parish of St.
Johns in Georgia, who was admitted to a seat, but did not claim the
right of voting for the colony. On the 15th of May, a delegation from
Rhode Island appeared and took their seats.
The credentials of the delegates contained no limitation of their powers
with respect to time, with the exception of those from Massachusetts and
South Carolina, whose authority was not to extend beyond the end of the
year. The Congress continued in session until the 1st of August, and
then adjourned for a recess to the 5th of September. When they were
again assembled, the delegations of several of the colonies were
renewed, with different limitations as to their time of service. Georgia
sent a full delegation, who took their seats on the 13th of September.
Still later, the delegations of several other colonies were renewed from
time to time, and this practice was pursued both before and after the
Declaration of Independence, thus rendering the Congress a permanent
body.[26]
Notwithstanding the absence of any express authority in their
instructions to enter upon revolutionary measures, the circumstances
under which the Congress assembled placed it in the position and cast
upon it the powers of a revolutionary government. Civil war had actually
commenced, and blood had been shed. Whether this war was to be carried
on for independence, or was only to be waged until the British ministry
could be compelled to acknowledge the rights which the colonies had
asserted, the Congress necessarily became, at once, the organ of the
common resistance of the colonies against the parent state. The first
thing which evinces its new relation to the country was the application
made to it by the Provincial Congress of Massachusetts, immediately
after the battle of Lexington, for direction and assistance. While they
informed the Continental Congress that they had proceeded, at once, to
raise a force of thirteen thousand six hundred men, and had made
proposals to the other New England colonies to furnish men in the same
proportions, stating that the sudden exigency of their affairs precluded
the possibility of waiting for direction, they suggested that an
American army ought forthwith to be raised for the common cause.[27] In
the same manner, the city and county of New York applied for the advice
of Congress, how to conduct themselves with regard to the British troops
expected in that quarter. These applications caused the Congress at once
to resolve itself into a committee of the whole, to take into
consideration the state of America.[28]
These proceedings were soon followed by another application on the part
of the Provincial Convention of Massachusetts, setting forth the
difficulties under which they were laboring for want of a regular form
of government; requesting explicit advice respecting the formation of a
new government; and offering to submit to such a general plan as the
Congress might direct for the colonies, or to endeavor to form such a
government for themselves as should not only promote their own
advantage, but the union and interest of the whole country.[29]
Placed in this manner at the head of American affairs, the Continental
Congress proceeded, at once, to put the country into a state of defence,
and virtually assumed a control over the military operations of all the
colonies. They appointed committees to prepare reports on military
measures: first, to recommend what posts should be occupied in the city
of New York; secondly, to devise ways and means for procuring ammunition
and military stores; thirdly, to make an estimate of the moneys
necessary to be raised; and fourthly, to prepare rules and regulations
for the government of the army.
They then proceeded to create a continental, or national army. To the
battle of Lexington had succeeded the investment of Boston, by an army
composed of regiments raised by the New England provinces, under the
command of General Ward of Massachusetts. This army was adopted by the
Congress; and, with other forces raised for the common defence, became
known and designated as the American Continental Army.[30] Six companies
of riflemen were ordered to be immediately raised in Pennsylvania, two
in Maryland, and two in Virginia, and directed to join the army near
Boston, and to be paid by the continent.[31]
On the 15th of June, 1775, Colonel George Washington, one of the
delegates in Congress from Virginia, was unanimously chosen to be
commander-in-chief of the continental forces.[32] Having accepted the
appointment, he received from the Congress a commission, together with a
resolution by which they pledged their lives and fortunes to maintain,
assist, and adhere to him in his great office, and a letter of
instructions, in which they charged him to make it his special care,
"that the liberties of America receive no detriment."[33] In the
commission given to the general, the style of "the United Colonies" was
for the first time adopted, and the defence of American Liberty was
assumed as the great object of their union.[34] On the 21st of June,
Washington left Philadelphia to take command of the army, and arrived at
Cambridge in Massachusetts on the 2d of July. Four major-generals and
eight brigadier-generals were also appointed by the Congress for the
continental army; rules and regulations for its government were adopted
and proclaimed, and the pay of the officers and privates was fixed.[35]
The Congress also proceeded, as the legislative authority of the United
Colonies, to create a continental currency, in order to defray the
expenses of the war. This was done by issuing two millions of dollars,
in bills of credit, for the redemption of which the faith of the
confederated colonies was pledged. A quota of this sum was apportioned
to each colony, and each colony was made liable to discharge its
proportion of the whole, but the United Colonies were obligated to pay
any part which either of the colonies should fail to discharge.[36] The
first of these quotas was made payable in four, the second in five, the
third in six, and the fourth in seven years from the last day of
November, 1775, and the provincial assemblies or conventions were
required, by the resolves of the Congress, to provide taxes in their
respective provinces or colonies, to discharge their several quotas.[37]
The Congress also directed reprisals to be made, both by public and
private armed vessels, against the ships and goods of the inhabitants of
Great Britain found on the high seas, or between high and low
water-mark; this being a measure of retaliation against an act of
Parliament, which had authorized the capture and condemnation of
American vessels, and which was considered equivalent to a declaration
of war. They also threw open the ports of the United Colonies to all
the world, except the dominions and dependencies of Great Britain.
Further, they established a general Treasury Department, by the
appointment of two joint Treasurers of the United Colonies, who were
required to give bonds for the faithful performance of the duties of
their office,[38] and they organized a general Post-Office, by the
appointment of a Postmaster-General for the United Colonies, to hold his
office at Philadelphia, to appoint deputies, and to establish a line of
posts from Falmouth in Massachusetts to Savannah in Georgia, with such
cross posts as he should judge proper.[39]
The proceedings of the Congress on the subject of the Militia were, of
course, in the nature of recommendations only. They advised the arming
and training of the militia of New York, in May, 1775,[40] and in July
they recommended to all the colonies to enroll all the able-bodied,
effective men among their inhabitants, between sixteen and fifty years
of age, and to form them into proper regiments.[41] The powers of the
Congress to call into the field the militia thus embodied were
considered to be subject to the consent of those exercising the
executive powers of government in the colony, for the time being.[42]
The relations of the country with the Indian tribes and nations were
deemed to be properly within the exclusive jurisdiction of the Congress.
Three departments of Indian Affairs, Northern, Southern, and Middle,
with separate commissioners for each, were therefore established in
July, having power to treat with the Indians in the name and on behalf
of the United Colonies.[43] Negotiations and treaties were entered into
by these departments, and all affairs with the Indians were conducted by
them, under the direction and authority of the Congress.[44]
With regard to those inhabitants of the country who adhered to the
royalist side of the controversy, the Congress of 1775-6 did not assume
and exercise directly the powers of arrest or restraint, but left the
exercise of such powers to the provincial assemblies, or conventions,
and committees of safety, in the respective colonies, with
recommendations from time to time as to the mode in which such powers
ought to be exercised.[45]
Besides all this, the different applications made to the Congress by the
people of Massachusetts,[46] of New Hampshire,[47] of Virginia,[48] and
of South Carolina, concerning the proper exercise of the powers of
government in those colonies, and the answers to those applications,
furnish very important illustrations of the position in which the
Congress were placed. To the people of Massachusetts, they declared
that no obedience was due to the act of Parliament for altering their
charter, and that, as the Governor and Lieutenant-Governor would not
observe the directions of that instrument, but had endeavored to subvert
it, their offices ought to be considered vacant; and, as the Council was
actually vacant, in order to conform as near as might be to the spirit
and substance of the charter, they recommended to the Provincial
Convention to write letters to the inhabitants of the several towns
entitled to representation in the Assembly, requesting them to choose
representatives, and requesting the Assembly when chosen to elect
councillors; adding their wish, that these bodies should exercise the
powers of government until a Governor of the King's appointment would
consent to govern the colony according to its charter.[49] The
Provincial Conventions of New Hampshire, Virginia, and South Carolina
were advised to call a full and free representation of the people, in
order to establish such a form of government as, in their judgment,
would best promote the happiness of the people and most effectually
secure peace and good order in their Provinces, during the continuance
of the dispute with Great Britain.[50] This advice manifestly
contemplated the establishment of provisional governments only.
But between the date of these last proceedings and the following spring
a marked change took place, both in the expectations and wishes of the
people of most of the colonies, with regard to an accommodation of the
great controversy. The last petition of the Congress to the King was
refused a hearing in Parliament, as emanating from an unlawful assembly,
in arms against their sovereign. In November, the town of Falmouth in
Massachusetts was bombarded and destroyed by the King's cruisers. In the
latter part of December, an act was passed in Parliament, prohibiting
all trade and commerce with the colonies; warranting the capture and
condemnation of all American vessels, with their cargoes, and
authorizing the commanders of the King's ships to compel the masters,
crews, and other persons found in such vessels, to enter the King's
service. The act also empowered the King to appoint commissioners, with
authority to grant pardon, on submission, to individuals and to
colonies, and after such submission to exempt them from its
operation.[51] Great preparations were made to reduce the colonies to
the submission required by this act, and a part of the troops that were
to be employed were foreign mercenaries.
The necessity of a complete separation from the mother country, and the
establishment of independent governments, had, therefore, in the winter
of 1775-6, become apparent to the people of America. Accordingly, the
Congress, asserting it to be irreconcilable to reason and good
conscience for the people of the colonies any longer to take the oaths
and affirmations necessary for the support of any government under the
crown of Great Britain, and declaring that the exercise of every kind of
authority under that crown ought to be suppressed, and a government of
the people of the colonies substituted in its place, recommended to the
respective assemblies and conventions of the colonies, where no
government sufficient for the exigencies of their affairs had been
already established, to adopt such a government as in the opinion of the
representatives of the people would best conduce to the happiness and
safety of their constituents and of America in general.[52]
* * * * *
It is apparent, therefore, that, previously to the Declaration of
Independence, the people of the several colonies had established a
national government of a revolutionary character, which undertook to
act, and did act, in the name and with the general consent of the
inhabitants of the country. This government was established by the
union, in one body, of delegates representing the people of each colony;
who, after they had thus united for national purposes, proceeded, in
their respective jurisdictions, by means of conventions and other
temporary arrangements, to provide for their domestic concerns by the
establishment of local governments, which should be the successors of
that authority of the British crown which they had "everywhere
suppressed." The fact that these local or state governments were not
formed until a union of the people of the different colonies for
national purposes had already taken place, and until the national power
had authorized and recommended their establishment, is of great
importance in the constitutional history of this country; for it shows
that no colony, acting separately for itself, dissolved its own
allegiance to the British crown, but that this allegiance was dissolved
by the supreme authority of the people of all the colonies, acting
through their general agent, the Congress, and not only declaring that
the authority of Great Britain ought to be suppressed, but recommending
that each colony should supplant that authority by a local government,
to be framed by and for the people of the colony itself.
The powers exercised by the Congress, before the Declaration of
Independence, show, therefore, that its functions were those of a
revolutionary government. It is a maxim of political science, that, when
such a government has been instituted for the accomplishment of great
purposes of public safety, its powers are limited only by the
necessities of the case out of which they have arisen, and of the
objects for which they were to be exercised. When the acts of such a
government are acquiesced in by the people, they are presumed to have
been ratified by the people. To the case of our Revolution, these
principles are strictly applicable, throughout. The Congress assumed, at
once, the exercise of all the powers demanded by the public exigency,
and their exercise of those powers was fully acquiesced in and confirmed
by the people. It does not at all detract from the authoritative
character of their acts, nor diminish the real powers of the
Revolutionary Congress, that it was obliged to rely on local bodies for
the execution of most of its orders, or that it couched many of those
orders in the form of recommendations. They were complied with and
executed, in point of fact, by the provincial congresses, conventions,
and local committees, to such an extent as fully to confirm the
revolutionary powers of the Congress, as the guardians of the rights and
liberties of the country. But we shall see, in the further progress of
the history of the Congress, that while its powers remained entirely
revolutionary, and were consequently coextensive with the great national
objects to be accomplished, the want of the proper machinery of civil
government and of independent agents of its own rendered it wholly
incapable of wielding those powers successfully.
* * * * *
NOTE TO PAGE 33.
ON WASHINGTON'S APPOINTMENT AS COMMANDER-IN-CHIEF.
The circumstances which attended the appointment of
Washington to this great command are now quite well known. He
had been a member of the Congress of 1774, and his military
experience and accomplishments, and the great resources of
his character, had caused his appointment on all the
committees charged with making preparations for the defence
of the colonies. Returned as a delegate from Virginia to the
Congress of 1775, his personal qualifications pointed him out
as the fittest person in the whole country to be invested
with the command of any army which the United Colonies might
see fit to raise; and it is quite certain that there would
have been no hesitation about the appointment, if some
political considerations had not been suggested as obstacles.
At the moment when the choice was to be made, the scene of
actual operations was in Massachusetts, where an army
composed of troops wholly raised by the New England colonies,
and under the command of General Ward, of that Province, was
besieging the enemy in Boston. This army was to be adopted by
the Congress into the service of the continent, and serious
doubts were entertained by some of the members of the
Congress as to the policy of appointing a Southern general to
the command of it, and a good deal of delicacy was felt on
account of General Ward, who, it was thought, might consider
himself injured by such an appointment. On the other hand,
there were strong reasons for selecting a general-in-chief
from Virginia. That colony had taken the lead, among the
Southern provinces, in the cause of the continent, and the
appointment seemed to be due to her, if it was to be made
upon political considerations. The motives for this policy
were deemed sufficient to outweigh the objections arising
from the character and situation of the army which the
general would, in the first instance, have to command. But
after all, it cannot be doubted, that the preëminent
qualifications of Washington had far more weight with the
majority of the Congress, than any dictates of mere policy,
between one part of the Union and another, or any local
jealousies or sectional ambition.
Mr. John Adams, whose recently published autobiography
contains some statements on this subject, speaks of the
existence of a Southern party against a Northern, and a
jealousy against a New England army under the command of a
New England general, which, he says, he discovered after the
Congress had been some time in session, and after the
necessity of having an army and a general had become a topic
of conversation. (Works, II. 415.) In a letter, also, written
by Mr. Adams in 1822 to Timothy Pickering, he states that, on
the journey to Philadelphia, he and a party of his
colleagues, the delegates from Massachusetts to this
Congress, were met at Frankfort by Dr. Rush, Mr. Mifflin, Mr.
Bayard, and others of the Philadelphia patriots, who desired
a conference with them; that, in this conference, the
Philadelphia gentlemen strongly advised the Massachusetts
delegates not to come forward with bold measures, or to
endeavor to take the lead; and represented that Virginia was
the most populous State in the Union, proud of its ancient
dominions, and that "they [the Virginians] think they have a
right to take the lead, and the Southern States, and the
Middle States, too, are too much disposed to yield it to
them."
"I must confess," says Mr. Adams, "that there appeared so
much wisdom and good sense in this, that it made a deep
impression on my mind, and it had an equal effect on all my
colleagues." "This conversation," he continues, "and the
principles, facts, and motives suggested in it, have given a
color, complexion, and character to the whole policy of the
United States from that day to this. _Without it, Mr.
Washington would never have commanded our armies_; nor Mr.
Jefferson have been the author of the Declaration of
Independence; nor Mr. Richard Henry Lee the mover of it; nor
Mr. Chase the mover of foreign connections. _If I have ever
had cause to repent of any part of this policy, that
repentance ever has been and ever will be unavailing._ I had
forgot to say, nor had Mr. Johnson ever have been the
nominator of Washington for general." (Works, II. 512, 513.)
Without impeaching the accuracy of Mr. Adams's recollection,
on the score of his age when this letter was written, and
without considering here how or why Mr. Jefferson came to be
the author of the Declaration of Independence, it is believed
that Mr. Adams states other facts, in his autobiography,
sufficient to show that motives of policy towards Virginia
were _not_ the sole or the principal reasons why Washington
was elected general. Mr. Adams states in his autobiography,
that at the time when he observed the professed jealousy of
the South against a New England army under the command of a
Northern general, it was very visible to him "that Colonel
Washington was their object"; "and," he adds, "so many of our
stanchest men were in the plan, that we could carry nothing
without conceding it." (Works, II. 415.) When Mr. Adams came,
as he afterwards did, to put himself at the head of this
movement, and to propose in Congress that the army at
Cambridge should be adopted, and that a general should be
appointed, he referred directly to Washington as the person
whom he had in his mind, and spoke of him as "a gentleman
from Virginia who was among us and very well known to all of
us, a gentleman whose skill and experience as an officer,
whose independent fortune, great talents, and excellent
universal character, would command the approbation of all
America, and unite the cordial exertions of all the colonies
better than any other person in the Union. Mr. Washington,
who happened to sit near the door, as soon as he heard me
allude to him, from his usual modesty, darted into the
library-room." (Works, II. 417.) It is quite clear,
therefore, that Mr. Adams put the appointment of Washington,
in public, upon his qualifications and character, known all
over the Union. He further states, that the subject came
under debate, and that nobody opposed the appointment of
Washington on account of any personal objection to him; and
the only objection which he mentions as having been raised,
was on the ground that the army near Boston was all from New
England, and that they had a general of their own, with whom
they were entirely satisfied. He mentions one of the Virginia
delegates, Mr. Pendleton, as concurring in this objection;
that Mr. Sherman of Connecticut and Mr. Cushing of
Massachusetts also concurred in it, and that Mr. Paine of
Massachusetts expressed strong personal friendship for
General Ward, but gave no opinion upon the question.
Afterwards, he says, the subject being postponed to a future
day, "pains were taken out of doors to obtain a unanimity,
and the voices were generally so clearly in favor of
Washington, that the dissentient members were persuaded to
withdraw their opposition, and Mr. Washington was nominated,
I believe, by Mr. Thomas Johnson of Maryland, unanimously
elected, and the army adopted." (Ibid.)
It is worth while to inquire, therefore, what were the
controlling reasons, which so easily and so soon produced
this striking unanimity. If it was brought about mainly by
the exertions of a Southern against a Northern party, and by
the yielding of Northern men to the Virginians from motives
of policy, it would not have been accomplished with so much
facility, although even a Washington were the candidate of
Virginia. Sectional jealousies and sectional parties inflame
each other; the struggles which they cause are protracted;
and the real merits of men and things are lost sight of in
the passions which they arouse. If policy, as a leading or a
principal motive, gave to General Washington the great body
of the Northern votes, there would have been more
dissentients from that policy than any of the accounts
authorize us to suppose there were, at any moment, while the
subject was under consideration. Nor does the previous
conduct of Virginia warrant the belief, that her subsequent
exertions in the cause of American liberty were mainly
purchased by the honors bestowed upon her great men, or by so
much of precedence as was yielded in the public councils to
the unquestionable abilities of her statesmen. Some of them
had undoubtedly been in favor of measures of conciliation to
a late period; and some of them, as Washington, Patrick
Henry, and Richard Henry Lee, had been, from an early period,
convinced that the sword must decide the controversy. They
were perhaps as much divided upon this point, until the army
at Boston was adopted, as the leading men of other colonies.
But when the necessity of that measure became apparent, it
was the peculiar happiness of Virginia to be able to present
to the country, as a general, a man whose character and
qualifications threw all local and political objects at once
into the shade. In order to form a correct judgment, at the
present day, of the motives which must have produced a
unanimity so remarkable and so prompt, we have only to
recollect the previous history of Washington, as it was known
to the Congress, at the moment when he shrank from the
mention of his name in that assembly.
He was forty-three years of age. From early youth, he had had
a training that eminently fitted him for the great part which
he was afterwards to play, and which unfolded the singular
capacities of his character to meet the extraordinary
emergencies of the post to which he was subsequently called.
That training had been both in military and in civil life.
His military career had been one of much activity and
responsibility, and had embraced several brilliant
achievements. In 1751, it became necessary to put the militia
of Virginia in a condition to defend the frontiers against
the French and the Indians. The province was divided into
military districts, in each of which an adjutant-general,
with the rank of major, was commissioned to drill and inspect
the militia. Washington, at the age of nineteen, received the
appointment to one of these districts; and in the following
year, the province was again divided into four grand military
divisions, of which the northern was assigned to him as
adjutant-general. In 1753, the French crossed the lakes, to
establish posts on the Ohio, and were joined by the Indians.
Major Washington was sent by the Governor of Virginia to warn
them to retire. This expedition was one of difficulty and of
delicacy. He crossed the Alleghany Mountains, reached the
Ohio, had interviews with the French commander and the
Indians, and returned to Williamsburg to make report to the
Governor. Of this journey, full of perilous adventures and
narrow escapes, he kept a journal, which was published by the
Governor; was copied into most of the newspapers of the other
colonies; and was reprinted in London, as a document of much
importance, exhibiting the views and designs of the French.
In 1754, he was appointed, with the rank of
lieutenant-colonel, second in command of the provincial
troops raised by the Legislature to repel the French
invasion. On the first encounter with a party of the enemy
under Jumonville, on the 28th of May, 1754, the chief command
devolved on Washington, in the absence of his superior. The
French leader was killed, and most of his party were taken
prisoners. Washington commanded also at the battle of the
Great Meadows, and received a vote of thanks for his services
from the House of Burgesses. This was in 1754, when he was at
the age of twenty-two. During the next year, in consequence
of the effect of some new arrangement of the provincial
troops, he was reduced from the rank of colonel to that of
captain, and thereupon retired from the army, with the
consolation that he had received the thanks of his country
for the services he had rendered. In 1755, he consented to
serve as aide-de-camp to General Braddock, who had arrived
from England with two regiments of regular troops. In this
capacity he served in the battle of the Monongahela with much
distinction. The two other aids were wounded and disabled
early in the action, and the duty of distributing the
General's orders devolved wholly upon Washington. It was in
this battle that he acquired with the Indians the reputation
of being under the special protection of the Great Spirit,
because he escaped the aim of many of their rifles, although
two horses were shot under him, and his dress was perforated
by four bullets. His conduct on this occasion became known
and celebrated throughout the country; and when he retired to
Mount Vernon, as he did soon after, at the age of
three-and-twenty, he not only carried with him a decisive
reputation for personal bravery, but he was known to have
given advice to Braddock, before the action, which all men
saw, after it, would, if it had been duly heeded, have
prevented his defeat. But he was not allowed to remain long
in retirement. In August, 1755, he was appointed
commander-in-chief of all the provincial forces of Virginia,
and immediately entered upon the duties of reorganizing the
old and raising new troops, in the course of which he visited
all the outposts along the frontier. Soon afterwards, a
dispute about rank having arisen with a person who claimed to
take precedence of provincial officers because he had
formerly held the King's commission, it became necessary for
Colonel Washington to make a visit to Boston, in order to
have the point decided by General Shirley, the
commander-in-chief of his Majesty's armies in America. He
commenced his journey on the 4th of February, 1756, and
passed through Philadelphia, New York, New London, Newport,
and Providence, and visited the Governors of Pennsylvania and
New York. In all the principal cities his character, and his
remarkable escape at Braddock's defeat, made him the object
of a strong public interest. At Boston, he was received with
marked distinction by General Shirley and by the whole
society of the town, and the question of rank was decided
according to his wishes. General Shirley explained to him the
intended operations of the next campaign; and, after an
absence from Virginia of seven weeks, he returned to resume
his command. The next three years were spent in the duties of
this laborious and responsible position, the difficulties and
embarrassments of which bore a strong resemblance to those
which he afterwards had to encounter in the war of the
Revolution. In 1758, he commanded the Virginia troops in the
expedition against Fort Duquesne, under General Forbes. Great
deference was paid by that officer to his opinions and
judgment, in arranging the line of march and order of battle,
on this important expedition; for the fate of Braddock was
before him. The command of the advanced division, consisting
of one thousand men, was assigned to him, with the temporary
rank of brigadier. When the army had approached within fifty
miles of Fort Duquesne, the French deserted it; its
surrender to the English closed the campaign; and in December
Washington resigned his commission, and retired to Mount
Vernon. What he had been, and what he then was, to the Colony
of Virginia, is shown by the Address presented to him by the
officers of the provincial troops, on his retirement. "In our
earliest infancy," said they, "you took us under your
tuition, trained us up in the practice of that discipline
which alone can constitute good troops, from the punctual
observance of which you never suffered the least deviation.
Your steady adherence to impartial justice, your quick
discernment, and invariable regard to merit, wisely intended
to inculcate those genuine sentiments of true honor and
passion for glory, from which the greatest military
achievements have been derived, first heightened our natural
emulation and our desire to excel. How much we improved by
those regulations and your own example, with what alacrity we
have hitherto discharged our duty, with what cheerfulness we
have encountered the severest toils, especially while under
your particular directions, we submit to yourself, and
flatter ourselves that we have in a great measure answered
your expectations.... It gives us additional sorrow, when we
reflect, to find our unhappy country will receive a loss no
less irreparable than our own. Where will it meet a man so
experienced in military affairs, one so renowned for
patriotism, conduct, and courage? Who has so great a
knowledge of the enemy we have to deal with? Who so well
acquainted with their situation and strength? Who so much
respected by the soldiery? Who, in short, so able to support
the military character of Virginia? Your approved love to
your King and country, and your uncommon perseverance in
promoting the honor and true interest of the service,
convince us that the most cogent reasons only could induce
you to quit it; yet we, with the greatest deference, presume
to entreat you to suspend those thoughts for another year,
and to lead us on to assist in the glorious work of
extirpating our enemies, towards which so considerable
advances have already been made. In you we place the most
implicit confidence. Your presence only will cause a steady
firmness and vigor to actuate every breast, despising the
greatest dangers, and thinking light of toils and hardships,
while led on by the man we know and love. But if we must be
so unhappy as to part, if the exigencies of your affairs
force you to abandon us, we beg it as our last request, that
you will recommend some person most capable to command, whose
military knowledge, whose honor, whose conduct, and whose
disinterested principles we may depend on. Frankness,
sincerity, and a certain openness of soul, are the true
characteristics of an officer, and we flatter ourselves that
you do not think us capable of saying any thing contrary to
the purest dictates of our minds. Fully persuaded of this, we
beg leave to assure you, that, as you have hitherto been the
actuating soul of our whole corps, we shall at all times pay
the most invariable regard to your will and pleasure, and
shall be always happy to demonstrate by our actions with how
much respect and esteem we are," &c.
Washington's marriage took place soon after his resignation
(January 6th, 1759), and his civil life now commenced. He had
been elected a member of the House of Burgesses, before the
close of the campaign, and in the course of the winter he
took his seat. Upon this occasion, his inability, from
confusion and modesty, to reply to a highly eulogistic
address made to him by the Speaker, Mr. Robinson, drew from
that gentleman the celebrated compliment, "Sit down, Mr.
Washington, your modesty equals your valor, and that
surpasses the power of any language that I possess." He
continued a member of the House of Burgesses until the
commencement of the Revolution, a period of fifteen years. He
was not a frequent speaker; but his sound judgment, quick
perception, and firmness and sincerity of character, gave him
an influence which the habit of much speaking does not give,
and which is often denied to eloquence. As the time drew
near, when the controversies between the colonies and England
began to assume a threatening aspect, he was naturally found
with Henry, Randolph, Lee, Wythe, and Mason, and the other
patriotic leaders of the colonies. His views concerning the
policy of the non-importation agreements were early formed
and made known. In 1769, he took charge of the Articles of
Association, drawn by Mr. Mason, which were intended to bring
about a concert of action between all the colonies, for the
purpose of presenting them to the Assembly, of which Mr.
Mason was not a member. In 1774, he was chosen a member of
the first Virginia Convention, and was by that body elected a
delegate to the first Continental Congress, where he was
undoubtedly the most conspicuous person present. The second
Virginia Convention met in March, 1775, and reflected the
former delegates to the second Continental Congress, from
which Washington was removed by his appointment as
Commander-in-chief.
There can be no doubt, therefore, that Washington was chosen
Commander-in-chief for his unquestionable merits, and not as
a compromise between sectional interests and local
jealousies.
(The authorities for the statements in this note concerning
Washington's history are the biographies by Marshall and
Sparks, and the Writings of Washington, edited by the
latter.)
FOOTNOTES:
[24] Peyton Randolph, President of the first and reëlected President of
the second Congress, died very suddenly at Philadelphia on the 22d of
October, 1775, and was succeeded in that office by John Hancock. Mr.
Randolph was one of the most eminent of the Virginia patriots, and an
intimate friend of Washington. Richard Henry Lee wrote to Washington, on
the day after his death, that "in him American liberty lost a powerful
advocate, and human nature a sincere friend." He was formerly
Attorney-General of Virginia, and in 1753 went to England as agent of
the House of Burgesses, to procure the abolition of a fee, known as the
pistole fee, which it had been the custom of the Governors of Virginia
to charge for signing land patents, as a perquisite of their office. He
succeeded in getting the fee abolished in cases where the quantity of
land exceeded one hundred acres. He was commander of a company of
mounted volunteers called the Gentlemen Associators, who served in the
French war. He was President of the Virginia Convention, as well as a
Delegate in Congress, at the time of his death. Sparks's Washington, II.
58, 161; III. 139, 140; XII. 420.
[25] In Massachusetts, Pennsylvania, and Maryland, they were made in
December; in Connecticut, in November; in New Jersey, in January; in
South Carolina, in February; in the Lower Counties on Delaware and in
Virginia, in March; in North Carolina, on the 5th of April; and in New
York, on the 22d of April.
[26] Virginia renewed her delegation for one year from the 11th of
August, 1775, and Maryland hers with powers to act until the 25th of
March, 1776. These new delegations, as well as that of Georgia, appeared
on the 13th of September, 1775. On the 16th of September, a renewed
delegation appeared from New Hampshire, without limitation of time;
Connecticut sent a new delegation on the 16th of January, 1776, and
Massachusetts did the same on the 31st of January, for the year 1776.
The persons of the delegates were not often changed.
[27] Journals, I. 81, 82.
[28] May 15, 1775. Journals, I. 162.
[29] Journals, I. 112.
[30] Form of enlistment, Journals, I. 118.
[31] Ibid.
[32] See note at end of the chapter.
[33] Secret Journals of Congress, I. 18; Pitkin's History of the United
States, I. 334, 335.
[34] Journals, I. 122.
[35] June 16-July 4, 1775. Journals, I. 112-133.
[36] Journals, I. 125, June 23, 1775. Ibid., I. 185, July 29, 1775.
[37] Ibid.
[38] Journals, I. 186, July 29, 1775. Michael Hillegas and George
Clymer, Esquires, were elected Treasurers.
[39] Journals, I. 177, 178, July 26, 1775. Dr. Franklin was elected
Postmaster-General for one year, and until another should be appointed
by a future Congress.
[40] Journals, I. 106.
[41] Journals, I. 170.
[42] Journals, I. 285.
[43] Journals, I. 161, 162.
[44] Journals, II. 112, 141, 163, 201, 255, 302, 304.
[45] Journals, I. 213; II. 5.
[46] June 9, 1775.
[47] November 3, 1775.
[48] December 4, 1775.
[49] Journals, I. 115.
[50] Journals, I. 231, 235, 279.
[51] Annual Register.
[52] May 10, 1776. Journals, II. 166, 174.
CHAPTER III.
1776-1777.
CONTINUANCE OF THE REVOLUTIONARY GOVERNMENT.--DECLARATION OF
INDEPENDENCE.--PREPARATIONS FOR A NEW GOVERNMENT.--FORMATION OF THE
CONTINENTAL ARMY.
On the 7th of June, 1776, after the Congress had in fact assumed and
exercised sovereign powers with the assent of the people of America, a
resolution was moved by Richard Henry Lee of Virginia, and seconded by
John Adams of Massachusetts, "That these United Colonies are, and of
right ought to be, free and independent states; and that all political
connection between them and the state of Great Britain is and ought to
be totally suppressed."[53] This resolution was referred to a committee
of the whole, and was debated until the 10th, when it was adopted in
committee. On the same day, a committee, consisting of five members,[54]
was instructed to prepare a declaration "that these United Colonies are,
and of right ought to be, free and independent states; that they are
absolved from all allegiance to the British crown; and that all
political connection between them and the state of Great Britain is, and
ought to be, dissolved." The resolution introduced by Mr. Lee on the
7th was postponed until the 1st of July, to give time for greater
unanimity among the members, and to enable the people of the colonies to
instruct and influence their delegates.
The postponement was immediately followed by proceedings in the
colonies, in most of which the delegates in Congress were either
instructed or authorized to vote for the resolution of Independence; and
on the 2d of July that resolution received the assent in Congress of all
the colonies, excepting Pennsylvania and Delaware. The Declaration of
Independence was reported by the committee, who had been instructed to
prepare it, on the 28th of June, and on the 4th of July it received the
vote of every colony, and was published to the world.[55]
This celebrated instrument, regarded as a legislative proceeding, was
the solemn enactment, by the representatives of all the colonies, of a
complete dissolution of their allegiance to the British crown. It
severed the political connection between the people of this country and
the people of England, and at once erected the different colonies into
free and independent states. The body by which this step was taken
constituted the actual government of the nation, at the time, and its
members had been directly invested with competent legislative power to
take it, and had also been specially instructed to do so. The
consequences flowing from its adoption were, that the local allegiance
of the inhabitants of each colony became transferred and due to the
colony itself, or, as it was expressed by the Congress, became due to
the laws of the colony, from which they derived protection;[56] that the
people of the country became thenceforth the rightful sovereign of the
country; that they became united in a national corporate capacity, as
one people; that they could thereafter enter into treaties and contract
alliances with foreign nations, could levy war and conclude peace, and
do all other acts pertaining to the exercise of a national sovereignty;
and finally, that, in their national corporate capacity, they became
known and designated as the United States of America. This Declaration
was the first national state paper in which these words were used as the
style and title of the nation. In the enacting part of the instrument,
the Congress styled themselves "the representatives of the United States
of America in general Congress assembled"; and from that period, the
previously "United Colonies" have been known as a political community,
both within their own borders and by the other nations of the world, by
the title which they then assumed.[57]
On the same day on which the committee for preparing the Declaration of
Independence was appointed, another committee, consisting of one member
from each colony, was directed "to prepare and digest the form of a
confederation to be entered into between these colonies." This committee
reported a draft of Articles of Confederation, on the 12th of July,
which were debated in Congress on several occasions between that day and
the 20th of August of the same year, at which time a new draft was
reported, and ordered to be printed. The subject was not again resumed,
until the 8th of April, 1777; but, between that date and the 15th of the
following November, sundry amendments were discussed and adopted, and
the whole of the articles, as amended, were printed for the use of the
Congress and the State Legislatures. On the 17th of November, a circular
letter was reported and adopted, to be addressed to the Legislatures of
the thirteen States, recommending to them "to invest the delegates of
the State with competent powers, ultimately, in the name and behalf of
the State, to subscribe Articles of Confederation and Perpetual Union of
the United States, and to attend Congress for that purpose on or before
the 10th day of March next."[58]
A year and five months had thus elapsed, between the agitation of the
subject of a new form of national government, and the adoption and
recommendation of a form, by the Congress, for the consideration of the
States.[59] During this interval, the affairs of the country were
administered by the Revolutionary Congress, which had been instituted,
originally, for the purpose of obtaining redress peaceably from the
British ministry, but which afterwards became _de facto_ the government
of the country, for all the purposes of revolution and independence. In
order to appreciate the objects of the Confederation, the obstacles
which it had to encounter, and the mode in which those obstacles were
finally overcome, it is necessary here to take a brief survey of the
national affairs during the period beginning with the commencement of
the war and the Declaration of Independence, and extending to the date
of the submission of the Articles of Confederation to the State
Legislatures. From no point of view can so much instruction be derived,
as from the position in which Washington stood, during this period. By
following the fortunes and appreciating the exertions of him who had
been charged with the great military duty of achieving the liberties of
the country, and especially by observing his relations with the
government that had undertaken the war, we can best understand the
fitness of that government for the great task to which it had been
called.
The continental government, which commissioned and sent General
Washington to take the command of the army which it had adopted,
consisted solely of a body of delegates, chosen to represent the people
of the several colonies or states, for certain purposes of national
defence, safety, redress, and revolution. When the war had actually
commenced, and the United Colonies were engaged in waging it, the
Congress possessed, theoretically and rightfully, large political
powers, of a vague revolutionary nature; but practically, they had
little direct civil power, either legislative or executive. They were
obliged to rely almost wholly on the legislatures, provincial congresses
and committees, or other local bodies of the several colonies or states,
to carry out their plans. When Washington arrived at Cambridge and found
the army then encamped around Boston in a state requiring it to be
entirely remodelled, he came as the general of a government which could
do little more for him than recommend him to the Provincial Congress, to
the Committee of Safety, and to the prominent citizens of Massachusetts
Bay. The people of the United States, at the present day, surrounded by
the apparatus of national power, can form some idea of Washington's
position, and of that of the government which he served, from the fact
that, when he left Philadelphia to take the command of the army, he
requested the Massachusetts delegates to recommend to him bodies of men
and respectable individuals, to whom he might apply, to get done,
through voluntary coöperation, what was absolutely essential to the
existence of that army.[60] In truth, the whole of his residence in
Massachusetts during the summer of 1775, and the winter of 1775-6, until
he saw the British fleet go down the harbor of Boston, was filled with
complicated difficulties, which sprang from the nature of the
revolutionary government and the defects in its civil machinery, far
more than from any and all other causes. These difficulties required the
exertion of great intellectual and physical energy, the application of
consummate prudence and forecast, and the patience and fortitude which
in him were so happily combined with power. They would have broken down
many of the greatest generals whom the world has seen; but it is our
good fortune to be able to look back upon his efforts to encounter them
as among the more prominent and striking manifestations of the strength
of Washington's mind and character, and as among the most valuable
proofs of what we owe to him.
On the one side of him was the body of delegates, sitting at
Philadelphia, by whom he had been commissioned, who constituted the
government of America, and from whom every direction, order, or
requisition, concerning national affairs, necessarily proceeded. On the
other side were the Provincial Congresses, and other public bodies of
the New England colonies, on whom he and the Congress were obliged to
rely for the execution of their plans. He was compelled to become the
director of this complicated machinery. There were committees of the
Congress, charged with the different branches of the public service; but
General Washington was obliged to attend personally to every detail, and
to suggest, to urge, and to entreat action upon all the subjects that
concerned the army and the campaign. His letters, addressed to the
President of Congress, were read in that body, and votes or resolutions
were passed to give effect to his requests or recommendations. But this
was not enough. Having obtained the proper order or requisition, he was
next obliged to see that it was executed by the local bodies or
magistrates, with whom he not infrequently was forced to discuss the
whole subject anew. He met with great readiness of attention, and every
disposition to make things personally convenient and agreeable to him;
but he found, as he has recorded, a vital and inherent principle of
delay, incompatible with military service, in the necessity he was under
to transact business through such numerous and different channels.[61]
His applications to the Governor of Connecticut for hunting-shirts for
the army;[62] to the Governor of Rhode Island for powder;[63] to the
Massachusetts Provincial Congress to apprehend deserters and to furnish
supplies;[64] and to the New York Provincial Congress to prevent their
citizens from trading with the enemy in Boston,[65]--together with the
earnest appeals which he was obliged to make on these and many other
subjects, which should never have been permitted to embarrass
him,--show how feeble were the powers and how defective was the
machinery of the government which he served.
But there are two or three topics which it will be necessary to examine
more particularly, in order fully to understand the character and
working of the revolutionary government. The first of these is the
formation of the army.
In order to carry on a war of any duration, it is the settled result of
all experience, that the soldier should be bound to serve for a period
long enough to insure discipline and skill, and should be under the
influence of motives which look to substantial pecuniary rewards, as
well as those founded on patriotism. According to Washington's
experience, this is as true of officers as it is of common soldiers; and
undoubtedly no army can be formed, and kept long enough in the field to
be relied upon for the accomplishment of great purposes, if these maxims
are neglected in its organization.
Unfortunately, the Revolutionary Congress, at the very commencement of
the war, committed the serious error of enlisting soldiers for short
periods. When Washington arrived at Cambridge, the army which the
Congress had just adopted as the continental establishment consisted of
certain regiments, raised on the spur of the moment by the provinces of
Massachusetts, New Hampshire, Rhode Island, and Connecticut; acting
under their respective officers; regulated by their own militia laws;
and, with the exception of those from Massachusetts, under no legal
obligation to obey the general then in command. The terms of service of
most of these men would expire in the autumn; and as they had enlisted
under their local governments for a special object, and had not been in
service long enough to have merged their habits of thinking and feeling,
as New England citizens, in the character of soldiers, they denied the
power of their own governments or of the Congress to transfer them into
another service, or to retain them after their enlistments had
expired.[66] The army was therefore to be entirely remodelled; or, to
speak more correctly, an army was to be formed, by making enlistments
under the Articles of War which had been adopted by the Congress, and by
organizing new regiments and brigades under officers holding continental
commissions. But the greatest difficulties had to be encountered in this
undertaking. The continental Articles of War required a longer term of
service than any of these troops had originally engaged for, and the
rules and regulations were far more stringent than the discipline to
which they had hitherto been subjected. There was, moreover, great
reluctance, on the part of both officers and men, to serve in regiments
consisting of the inhabitants of different colonies. A Connecticut
captain would not serve under a Massachusetts colonel; a Massachusetts
colonel was unwilling to command Rhode Island men; and the men were
equally indisposed to serve under officers from another colony, or under
any officers, in fact, but those of their own choosing.[67]
In this state of things, a committee, consisting of Dr. Franklin, Mr.
Lynch, and Colonel Harrison, was sent by the Congress to confer with
General Washington and with the local governments of the New England
colonies, on the most effectual method of continuing, supporting, and
regulating a continental army.[68] This committee arrived at Cambridge
on the 18th of October, and sat until the 24th.[69] They rendered very
important services to the commander-in-chief, in the organization of the
army; but in forming this first military establishment of the Union, the
strange error was committed by the Congress, of enlisting the men for
the term of one year only, if not sooner discharged;--a capital mistake,
the consequences of which were severely felt throughout the whole war.
There is no reason to suppose that General Washington concurred in the
expediency of such short enlistments, then or at any other time; but he
was obliged to yield to the pressure of the causes to which the mistake
is fairly to be attributed. In fact, we find him, in a short time after
the new system had been put into operation, pointing it out as a fatal
error, in a letter to the President of Congress.[70] The error may have
been owing to the character of the government, to the opinions and
prejudices prevailing in Congress, and to the delusive idea, which still
lingered in the minds of many of the members, that, although the sword
had been drawn, the scabbard was not wholly thrown aside, and that they
should be able to coerce the British ministry into a redress of
grievances, which might be followed by a restoration of the relations
between the colonies and the mother country, upon a constitutional
basis. No such idea was entertained by Washington, from the beginning.
He entertained no thought of accommodation, after the measures adopted
in consequence of the battle of Bunker's Hill.
But at the time of which we are treating, the issue had not been made,
as Washington would have made it; and, when we consider the state of
things before the Declaration of Independence was adopted, and look
attentively at the objects for which the Congress had been assembled,
and at the nature of their powers, we may perceive how they came to make
the mistake of not organizing a military establishment on a more
permanent footing.
The delegates to the first Congress were, as we have seen, sent with
instructions, which were substantially the same in all the colonies.
These instructions, in some instances, looked to "a redress of
grievances," and in others, to "the recovery and establishment of the
just rights and liberties of the colonies"; and the delegates were
directed "to deliberate upon wise and proper measures, to be by them
recommended to all the colonies," for the attainment of these objects.
But with this was coupled the declared object of a "restoration of union
and harmony" upon "constitutional principles." We have seen how far this
body proceeded towards a revolution. The second, or Revolutionary
Congress, was composed of delegates who were originally assembled under
similar instructions; but the conflict of arms that had already taken
place, between the times of their respective appointments and the date
of their meeting, had materially changed the posture of affairs. Powers
of a revolutionary nature had been cast upon them, by the force of
circumstances; and when they finally resolved to take the field, the
character of those powers, as understood and acted upon by themselves,
is illustrated by the commission which they issued to their
General-in-chief, which embraced in its scope the whole vast object of
"the defence of American liberty, and the repelling every hostile
invasion thereof," by force of arms, and "by the rules and discipline of
war, as herewith given."
It is obvious, therefore, that, at the time when the first continental
army was to be formed, the powers of the national government were very
broad, although vague and uncertain. There seems to have been no reason,
upon principle, why they should not have adopted decrees, to be executed
by their own immediate agents, and by their own direct force. But a
practical difficulty embarrassed and almost annulled this theoretical
and rightful power. The government of the Congress rested on no
definite, legislative faculty. When they came to a resolution, or vote,
it constituted only a voluntary compact, to which the people of each
colony pledged themselves, by their delegates, as to a treaty, but which
depended for its observance entirely on the patriotism and good faith of
the colony itself. No means existed of compelling obedience from a
delinquent colony, and the government was not one which could operate
directly upon individuals, unless it assumed the full exercise of powers
derived from the revolutionary objects at which it aimed. These powers
were not assumed and exercised to their full extent, for reasons
peculiar to the situation of the country, and to the character, habits,
and feelings of the people.
The people of the colonies had indeed sent their delegates to a
Congress, to consult and determine upon the measures necessary to be
adopted, in order to assert and maintain their rights. But they had
never been accustomed to any machinery of government, or legislation,
other than that existing in their own separate jurisdictions. They had
imparted to the Congress no proper legislative authority, and no civil
powers, except those of a revolutionary character. This revolutionary
government was therefore entirely without civil executive officers,
fundamental laws, or control over individuals; and the union of the
colonies, so far as a union had taken place, was one from which any
colony could withdraw at any time, without violating any legal
obligation.
In addition to this, the popular feeling on the subject of the
grievances existing, and of the measures that ought to be taken for
redress, was quite different in the different colonies, before the
Declaration of Independence was adopted. The leading patriotic or Whig
colonies made common cause with each other, with great spirit and
energy, and the more lukewarm followed, but with unequal steps.[71]
Virginia had, upon the whole, less to complain of than Massachusetts;
but she adopted the whole quarrel of her Northern sister, with the
firmness of her Washington and the ardor of her Henry. New York, on the
other hand, for a considerable period, and down to the month of January,
1775, stood nearly divided between the Whigs and the Tories, and did not
choose its delegates to the second Congress until the 20th of
April,--twenty days only before that body assembled.[72]
One of the most striking illustrations, both of the character of the
revolutionary government and of the state of the country, is presented
by the proceedings respecting the Loyalists, or, as they were called,
the Tories. This is not the place to consider whether the American
Loyalists were right or wrong in adhering to the crown. Ample justice is
likely to be done, in American history, to the characters and motives of
those among them whose characters and motives were pure. From a sense of
duty, or from cupidity, or from some motive, good or bad, they made
their election to adhere to the public enemy; and they were, therefore,
rightfully classed, according to their personal activity and importance,
among the enemies of the country, by those whose business it was to
conduct its affairs and to fight its battles. General Washington was, at
a very early period, of opinion, that the most decisive steps ought to
be taken with these persons; and he seems at first to have acted as if
it belonged, as in fact it did properly belong, to the commander of the
continental forces to determine when and how they should be arrested. He
first had occasion to act upon the subject in November, 1775, when he
sent Colonel Palfrey, one of his aids, into New Hampshire, with orders
to seize every officer of the royal government, who had given proofs of
an unfriendly disposition to the American cause, and when he had secured
them, to take the opinion of the Provincial Congress, or Committee of
Safety, in what manner to dispose of them in that Province.[73]
Early in the month of January, 1776, General Washington was led to
suppose that the enemy were about to send from Boston a secret
expedition by water, for the purpose of taking possession of the city of
New York; and it was believed that a body of Tories on Long Island,
where they were numerous, were about rising, to join the enemy's forces
on their arrival. While Washington was deliberating whether he should be
warranted in sending an expedition to check this movement and to prevent
the city from falling into the hands of the enemy, without first
applying to Congress for a special authority, he received a letter from
Major-General Charles Lee, offering to go into Connecticut, to raise
volunteers, and to march to the neighborhood of New York, for the
purpose of securing the city and suppressing the anticipated
insurrection of the Tories.[74] He was inclined to adopt Lee's
suggestion, but doubted whether he had power to disarm the people of an
entire district, as a military measure, without the action of the civil
authority of the Province. Upon this point, he consulted Mr. John Adams,
who was then attending the Provincial Congress of Massachusetts. Mr.
Adams gave it, unhesitatingly, as his clear opinion, that the commission
of the Commander-in-chief extended to the objects proposed in General
Lee's letter; and he reminded General Washington, that it vested in him
full power and authority to act as he should think for the good and
welfare of the service.[75] Lee was thereupon authorized to raise
volunteers and to proceed to the city of New York, which he was
instructed to prevent from falling into the hands of the enemy, by
putting it into the best posture of defence and by disarming all persons
upon Long Island and elsewhere, (and, if necessary, by otherwise
securing them,) whose conduct and declarations had rendered them justly
suspected of designs unfriendly to the views of the Congress.[76] At the
same time, General Washington wrote to the Committee of Safety of New
York, informing them of the instructions which he had given to General
Lee, and requesting their assistance; but without placing Lee under
their authority.[77]
* * * * *
It happened, that at this time, while Washington was considering the
expediency of sending this expedition, the Congress had under
consideration the subject of disarming the Tories in Queen's County,
Long Island, where the people had refused to elect members to the
Provincial Convention.[78] Two battalions of minute-men had been ordered
to enter that county, at its opposite sides, on the same day, and to
disarm every inhabitant who had voted against choosing members to the
Convention.[79] A part of these orders were suddenly countermanded, and
in place of the minute-men from Connecticut, three companies were
ordered to be detailed for this service from the command of Lord
Stirling. This change in the original plan was made on the 10th of
January; and when Washington received notice of it from Lee, he seems to
have understood it as an abandonment of the whole scheme of the
expedition,--a course which he deeply regretted.[80] He thought, that
the period had arrived when nothing less than the most decisive measures
ought to be pursued; that the enemies of the country were sufficiently
numerous on the other side of the Atlantic, and that it was highly
important to have as few internal ones as possible. But supposing that
Congress had changed their determination, he directed Lee to disband his
troops so soon as circumstances would in his judgment admit of it.[81]
Lee was at this time at Stamford in Connecticut, with a body of about
twelve hundred men, whom he had raised in that colony, preparing to
march to New York to execute the different purposes for which he had
been detached. On the 22d of January,--the day before the date of
General Washington's letter to him directing him to disband his
forces,--he had written to the President of Congress, urging in the
strongest terms the expediency of seizing and disarming the Tories;[82]
and he immediately communicated to Washington the fact of his having
done so. Washington wrote again on the 30th, informing Lee that General
Clinton had gone from Boston on some expedition with four or five
hundred men; that there was reason to believe that this expedition had
been sent on the application of Tryon, the royal Governor of New York,
who, with a large body of the inhabitants, would probably join it; and
that the Tories ought, therefore, to be disarmed at once, and the
principal persons among them seized. He also expressed the hope that
Congress would empower General Lee to act conformably to both their
wishes; but that, if they should order differently, their directions
must be obeyed.[83]
General Washington was mistaken in supposing that Congress had resolved
to abandon the expedition against the Tories of Queen's County. That
expedition had actually penetrated the county, under Colonel Heard, who
had arrested nineteen of the principal inhabitants and conducted them to
Philadelphia. Congress directed them to be sent to New York, and
delivered to the order of the Convention of that Colony, until an
inquiry could be instituted by the Convention into their conduct, and a
report thereon made to Congress.[84]
This destination of the prisoners had become necessary, in consequence
of the local fears and jealousies excited by the approach of General Lee
to the city of New York, at the head of a force designed to prevent it
from falling into the possession of the enemy. The inhabitants of the
city were not a little alarmed at the idea of its becoming a post to be
contended for; and the Committee of Safety wrote to General Lee
earnestly deprecating his approach.[85] Lee replied to them, and
continued his march, inclosing their letter to Congress. It was received
in that body on the 26th, and a committee of three members was
immediately appointed to repair to New York, to consult and advise with
the Council of Safety of the Colony, and with General Lee, respecting
the defence of the city.[86] The Provincial Congress of New York were in
session at the time of the arrival of this committee,[87] and, in
consequence of the temper existing in that body and in the local
committees, the Continental Congress found themselves obliged to recede
from the course which they had taken of disarming the Tories of Queen's
County by their own action, and to submit the whole subject again to the
colonial authorities everywhere, by a mere recommendation to them to
disarm all persons, within their respective limits, notoriously
disaffected to the American cause.[88]
Thus, after having resolved on the performance of a high act of
sovereignty, which was entirely within the true scope of their own
powers, and eminently necessary, the Congress was obliged to content
itself with a recommendation on the subject to the colonial authorities;
not only because it felt itself, as a government, far from secure of the
popular coöperation in many parts of the country, but because it had not
finally severed the political tie which had bound the country to the
crown of Great Britain, and because it had no civil machinery of its
own, through which its operations could be conducted.
Another topic, which illustrates the character of the early
revolutionary government, is the entire absence, at the period now under
consideration, of a proper national tribunal for the determination of
questions of Prize;--a want which gave General Washington great trouble
and embarrassment, during his residence at Cambridge and for some time
afterwards. As this subject is connected with the origin of the American
Navy, a brief account may here be given of the commencement of naval
operations by the United Colonies.
* * * * *
When General Washington arrived at Cambridge, no steps had been taken by
the Continental Congress towards the employment of any naval force
whatever. In June, 1775, two small schooners had been fitted out by
Rhode Island, to protect the waters of that Colony from the depredations
of the enemy; and in the same month, the Provincial Congress of
Massachusetts resolved to provide six armed vessels; but none of them
were ready in the month of October.[89] In the early part of that month,
the first movement was made by the Continental Congress towards the
employment of any naval force. General Washington was then directed to
fit out two armed vessels, with all possible despatch, to sail for the
mouth of the St. Lawrence, in order to intercept certain ships from
England bound to Quebec with powder and stores. He was to procure these
vessels from the government of Massachusetts.[90] The authorities of
Massachusetts had then made no such provision; but in the latter part
of August, General Washington had, on the broad authority of his
commission, proceeded to fit out six armed schooners, to cruise in the
waters of Massachusetts Bay, so as to intercept the enemy's supplies
coming into the port of Boston. One of them sailed in September, and in
the course of a few weeks they were all cruising between Cape Ann and
Cape Cod.[91]
On the 17th of September, 1775, the town of Falmouth in Massachusetts
(now Portland in Maine) was burnt by the enemy. This act stimulated the
Continental Congress to order the fitting out of two armed vessels on
the 26th of October, and of two others, on the 30th. It also stimulated
the Massachusetts Assembly to issue letters of marque and reprisal, and
to pass an act establishing a court to try and condemn all captures made
from the enemy, by the privateers and armed vessels of that Colony.
In the autumn of this year, therefore, there were two classes of armed
vessels cruising in the waters of Massachusetts: one consisting of those
sailing under the continental authority, and the other consisting of
those sailing under the authority of the Massachusetts Assembly.
Captures were made by each, and some of those sailing under the
continental authority were quite successful. Captain Manly, commanding
the Lee, took, in the latter part of November, a valuable prize, with a
large cargo of arms, ammunition, and military tools; and several other
captures followed before any provision had been made for their
condemnation,--a business which was thus thrown entirely upon the hands
of General Washington.
The court established by the Legislature of Massachusetts, at its
session in the autumn of 1775, for the trial and condemnation of all
captures from the enemy, was enabled to take cognizance only of captures
made by vessels fitted out by the Province, or by citizens of the
Province. As the cruisers fitted out at the continental expense did not
come under this law, General Washington early in November called the
attention of Congress to the necessity of establishing a court for the
trial of prizes made by continental authority.[92] On the 25th of
November, the Congress passed resolves ordering all trials of prizes to
be held in the court of the colony into which they should be brought,
with a right of appeal to Congress.[93] But these resolves do not seem
to have been, for a considerable period of time, communicated to General
Washington; for, during the months of November, December, and January,
he supposed it to be necessary for him to attend personally to the
adjudication of prizes made by continental vessels,[94] and it was not
until the early part of February that the receipt of the resolves of
Congress led to a resort to the jurisdiction of the admiralty court of
Massachusetts. When, however, this was done, an irreconcilable
difference was found to exist between the resolves of Congress and the
law of the Colony respecting the proceedings; the trials were stopped
for a long time, to enable the General Court of Massachusetts to alter
their law, so as to make it conform to the resolves; and in the mean
while, many of the captors, weary of the law's delay, applied, without
waiting for the decisions, for leave to go away, which General
Washington granted.[95] As late as the 25th of April, 1776, there had
been no trials of any of the prizes brought into Massachusetts Bay. At
that date, General Washington wrote to the President of Congress, from
New York, that some of the vessels which he had fitted out were laid up,
the crews being dissatisfied because they could not obtain their
prize-money; that he had appealed to the Congress on the subject; and
that, if a summary way of proceeding were not resolved on, it would be
impossible to have the continental vessels manned. At this time Captain
Manly and his crew had not received their share of the valuable prize
taken by them in the autumn previous.[96]
* * * * *
Another remarkable defect in the revolutionary government was found in
the mode in which it undertook to supply the means of defraying the
public expenses. It was a government entirely without revenues of any
kind; for, in constituting the Congress, the colonies had not clothed
their delegates with power to lay taxes, or to establish imposts. At the
time when hostilities were actually commenced, the commerce of the
country was almost totally annihilated; so that if the Congress had
possessed power to derive a revenue from commerce, little could have
been obtained for a long period after the commencement of the war. But
the power did not exist; money in any considerable quantity could not be
borrowed at home; the expedient of foreign loans had not been suggested;
and consequently the only remaining expedient to which the Congress
could resort was, like other governments similarly situated, to issue
paper money. The mode in which this was undertaken to be done was, in
the first instance, to issue two millions of Spanish milled dollars, in
the form of bills, of various denominations, from one dollar to eight
dollars each, and a few of twenty dollars, designed for circulation as
currency. The whole number of bills which made up the sum of $2,000,000
was 403,800.[97] The next emission amounted to $1,000,000, in bills of
thirty dollars each, and was ordered on the 25th of July.[98] When the
bills of the first emission were prepared, it would seem to have been
the practice to have them signed by a committee of the members; but this
was found so inconvenient, from the length of time during which it
withdrew the members from the other business of Congress, that, when the
second emission was ordered, a committee of twenty-eight citizens of
Philadelphia was appointed for the purpose, and the bills were ordered
to be signed by any two of them.[99] At this time, no continental
Treasurers had been appointed.[100]
Such a clumsy machinery was poorly adapted to the supply of a currency
demanded by the pressing wants of the army and of the other branches of
the public service. The signers of the bills were extremely dilatory in
their work. In September, 1775, the paymaster and commissary, at
Cambridge, had not a single dollar in hand, and they had strained their
credit, for the subsistence of the army, to the utmost; the greater part
of the troops were in a state not far from mutiny, in consequence of the
deduction which had been made from their stated allowance; and there was
imminent danger, if the evil were not soon remedied, and greater
punctuality observed, that the army would absolutely break up. In
November, General Washington deemed it highly desirable to adopt a
system of advanced pay, but the unfortunate state of the military chest
rendered it impossible. There was not cash sufficient to pay the troops
for the months of October and November. Through the months of December
and January, the signing of the bills did not keep pace with the demands
of the army, notwithstanding General Washington's urgent remonstrances;
and in February his wants became so pressing, that he was obliged to
borrow twenty-five thousand pounds of the Province of Massachusetts Bay,
in order that the recruiting service might not totally cease.[101]
These facts show significantly, that, before the Declaration of
Independence, scarcely any progress had been made towards the formation
of a national government with definite powers and appropriate
departments. In matters of judicature, and in measures requiring
executive functions and authority, the Congress were obliged to rely
almost entirely upon the local institutions and the local civil
machinery of the different colonies; while, in all military affairs, the
very form of the revolutionary government was unfavorable to vigor,
despatch, and consistent method. There were also causes existing in the
temper and feelings of many of the members of that government, both
before and after the Declaration of Independence, which, at times,
prevented the majority from acting with the decision and energy demanded
by the state of their affairs. Many excellent and patriotic men in the
Congress of 1775-6, while they concurred fully in the necessity for
resistance to the measures of the British ministry, and had decided, or
were fast deciding, that a separation must take place, still entertained
a great jealousy of standing armies. This jealousy began to exhibit
itself very soon after the appointment of the Commander-in-chief, and
was never wholly without influence in the proceedings of Congress
during the entire period of the war. It led to a degree of reliance upon
militia, which, in the situation of the colonies, was too often
demonstrated to be a weak and fatal policy.[102]
* * * * *
NOTE TO PAGE 51.
ON THE DECLARATION OF INDEPENDENCE.
The Declaration of Independence was drawn by Thomas
Jefferson; and the circumstances under which he was selected
for this honorable and important task have been for more than
a quarter of a century somewhat in doubt, and that doubt has
been increased by the recent publication of a part of the
Works of Mr. John Adams. The evidence on the subject is to be
derived chiefly from statements made by both of these eminent
persons in their memoirs, and in a letter written by each of
them. We have seen, in a former note, that in 1822 Mr. Adams
declared, that had it not been for a conversation which
occurred in 1775, before the meeting of the Congress of that
year, between himself and his Massachusetts colleagues and
certain of the Philadelphia "sons of liberty," in which the
Massachusetts members were advised to concede precedence to
Virginia, from motives of policy, and but for the principles,
facts, and motives suggested in that conversation, many
things would not have happened which did occur, and among
them, that Mr. Jefferson never would have been the author of
the Declaration of Independence. In regard to the same
speculation, concerning the election of Washington as
Commander-in-chief, I have ventured, on Mr. Adams's own
authority, to suggest doubts whether that election ought now
to be considered to have turned upon motives which Mr. Adams
made so prominent in 1822. In regard to the authorship of the
Declaration of Independence, I shall only endeavor to state
fairly and fully the conflicting evidence, in order that the
reader may judge what degree of weight ought to be assigned
to the cause, _without_ which Mr. Adams supposed Mr.
Jefferson would not have been selected to draft it.
Mr. Jefferson, as it appeared when his writings came to be
published in 1829, wrote in 1821, when at the age of
seventy-seven, a memoir of some of the public transactions in
which he had been engaged. At this time, he had in his
possession a few notes of the debates which took place in
Congress on the subject of Independence, and which he made at
the time. These notes he inserted bodily, as they stood, in
his memoir, and they are so printed. (Jefferson's Works, I.
10-14.) They are easily distinguishable from the text of the
memoir, but they do not appear to throw any especial light
upon the fact now in controversy; although, as Mr. Jefferson,
in 1823, when writing on this subject, supported his
recollection by "written notes, taken at the moment and on
the spot," it is proper to allow that those notes may in some
way have aided his memory, although we cannot now see in what
way they did so. He made this latter reference in a letter
which he wrote to Mr. Madison, in reply to the statements in
Mr. Adams's letter to Timothy Pickering, under date of August
6, 1822. (Jefferson's Works, IV. 375, 376.)
At or near the beginning of the present century, Mr. Adams,
then about sixty-six, wrote an autobiography, which has
recently been published [1850], and in which he gave an
account of the authorship of the Declaration. In 1822, when
about eighty-six, Mr. Adams wrote the letter to Mr.
Pickering, which called forth Mr. Jefferson's contradiction
in his letter to Mr. Madison, under date of August 30, 1823.
(Adams's Works, II. 510-515.) Mr. Jefferson, in his memoir
written in 1821, states simply that the committee for drawing
the Declaration desired him to do it; that he accordingly
wrote it, and that, being approved by the committee, he
reported it to the Congress on Friday, the 28th of June, when
it was read and ordered to lie on the table; and that on
Monday, the 1st of July, the Congress, in committee of the
whole, proceeded to consider it. "The pusillanimous idea," he
continues, "that we had friends in England worth keeping
terms with, still haunted the minds of many. For this reason,
those passages which conveyed censures on the people of
England were struck out, lest they should give them offence.
The clause, too, reprobating the enslaving the inhabitants of
Africa, was struck out in complaisance to South Carolina and
Georgia, who had never attempted to restrain the importation
of slaves, and who, on the contrary, wished to continue it.
Our Northern brethren, also, I believe, felt a little tender
under those censures; for though their people had very few
slaves themselves, yet they had been pretty considerable
carriers of them to others. The debates having taken up the
greater parts of the 2d, 3d, and 4th days of July, were, on
the evening of the last, closed." (Jefferson's Works, I. 14,
15.)
In Mr. Adams's autobiography, the following account is
given:--"The Committee of Independence were Thomas Jefferson,
John Adams, Benjamin Franklin, Roger Sherman, and Robert R.
Livingston. Mr. Jefferson had been now about a year a member
of Congress, but had attended his duty in the house a very
small part of the time, and, when there, had never spoken in
public. During the whole time I sat with him in Congress, I
never heard him utter three sentences together. It will
naturally be inquired how it happened that he was appointed
on a committee of such importance. There were more reasons
than one. Mr. Jefferson had the reputation of a masterly pen;
he had been chosen a delegate in Virginia, in consequence of
a very handsome public paper which he had written for the
House of Burgesses, which had given him the character of a
fine writer. Another reason was, that Mr. Richard Henry Lee
was not beloved by the most of his colleagues from Virginia,
and Mr. Jefferson was set up to rival and supplant him. This
could be done only by the pen, for Mr. Jefferson could stand
no competition with him or any one else in elocution and
public debate.... The committee had several meetings, in
which were proposed the articles of which the Declaration was
to consist, and minutes made of them. The committee then
appointed Mr. Jefferson and me to draw them up in form, and
clothe them in a proper dress. The sub-committee met, and
considered the minutes, making such observations on them as
then occurred, when Mr. Jefferson desired me to take them to
my lodgings, and make the draft. This I declined, and gave
several reasons for declining: 1. That he was a Virginian,
and I a Massachusettensian. 2. That he was a Southern man,
and I a Northern one. 3. That I had been so obnoxious for my
early and constant zeal in promoting the measure, that any
draft of mine would undergo a more severe scrutiny and
criticism in Congress than one of his composition. 4. And
lastly, and that would be reason enough if there were no
other, I had a great opinion of the elegance of his pen, and
none at all of my own. I therefore insisted that no
hesitation should be made on his part. He accordingly took
the minutes, and in a day or two produced to me his draft.
Whether I made or suggested any corrections I remember not.
The report was made to the committee of five, by them
examined, but whether altered or corrected in any thing, I
cannot recollect. But, in substance, at least, it was
reported to Congress, where, after a severe criticism, and
striking out several of the most oratorical paragraphs, it
was adopted on the 4th of July, 1776, and published to the
world." (Adams's Works, II. 511-515.)
The account in Mr. Adams's letter to Mr. Pickering is as
follows:--"You inquire why so young a man as Mr. Jefferson
was placed at the head of the committee for preparing a
Declaration of Independence? I answer, it was the Frankfort
advice to place Virginia at the head of every thing. Mr.
Richard Henry Lee might be gone to Virginia, to his sick
family, for aught I know; but that was not the reason of Mr.
Jefferson's appointment. There were three committees
appointed at the same time. One for the Declaration of
Independence, another for preparing Articles of
Confederation, and another for preparing a treaty to be
proposed to France. Mr. Lee was chosen for the Committee of
Confederation, and it was not thought convenient that the
same person should be upon both. Mr. Jefferson came into
Congress in June, 1775, and brought with him a reputation for
literature, science, and a happy talent of composition.
Writings of his were handed about, remarkable for their
peculiar felicity of expression. Though a silent member in
Congress, he was so prompt, frank, explicit, and decisive
upon committees and in conversation,--not even Samuel Adams
was more so,--that he soon seized upon my heart; and upon
this occasion I gave him my vote, and did all in my power to
procure the votes of others. I think he had one more vote
than any other, and that placed him at the head of the
committee. I had the next highest number, and that placed me
second. The committee met, discussed the subject, and then
appointed Mr. Jefferson and me to make the draft, I suppose
because we were the two first on the list. The sub-committee
met. Jefferson proposed to me to make the draft. I said, 'I
will not.' 'You should do it.' 'O, no.' 'Why will you not?
You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.'
'What can be your reasons?' 'Reason first,--You are a
Virginian, and a Virginian ought to appear at the head of
this business. Reason second,--I am obnoxious, suspected, and
unpopular. You are very much otherwise. Reason third,--You
can write ten times better than I can.' 'Well,' said
Jefferson, 'if you are decided, I will do as well as I can.'
'Very well. When you have drawn it up, we will have a
meeting.'
"A meeting we accordingly had, and conned the paper over. I
was delighted with its high tone and the flights of oratory
with which it abounded, especially that concerning negro
slavery, which, though I knew his Southern brethren would
never suffer to pass in Congress, I certainly never would
oppose. There were other expressions which I would not have
inserted, if I had drawn it up, particularly that which
called the King tyrant. I thought this too personal; for I
never believed George to be a tyrant in disposition and in
nature; I always believed him to be deceived by his courtiers
on both sides of the Atlantic, and in his official capacity
only, cruel. I thought the expression too passionate, and too
much like scolding, for so grave and solemn a document; but
as Franklin and Sherman were to inspect it afterwards, I
thought it would not become me to strike it out. I consented
to report it, and do not now remember that I made or
suggested a single alteration.
"We reported it to the committee of five. It was read, and I
do not remember that Franklin or Sherman criticized any
thing. We were all in haste. Congress was impatient, and the
instrument was reported, as I believe, in Jefferson's
handwriting, as he first drew it. Congress cut off about a
quarter of it, as I expected they would; but they obliterated
some of the best of it, and left all that was exceptionable,
if any thing in it was. I have long wondered that the
original draft has not been published. I suppose the reason
is, the vehement philippic against negro slavery.
"As you justly observe, there is not an idea in it but what
had been hackneyed in Congress for two years before. The
substance of it is contained in the declaration of rights and
the violation of those rights, in the Journals of Congress,
in 1774. Indeed, the essence of it is contained in a
pamphlet, voted and printed by the town of Boston, before the
first Congress met, composed by James Otis, as I suppose, in
one of his lucid intervals, and pruned and polished by Samuel
Adams."
Mr. Jefferson, on the contrary, in his letter to Mr. Madison,
says:--"These details are quite incorrect. The committee of
five met; no such thing as a sub-committee was proposed, but
they unanimously pressed on myself alone to undertake the
draft. I consented; I drew it; but, before I reported it to
the committee, I communicated it _separately_ to Doctor
Franklin and Mr. Adams, requesting their correction, because
they were the two members of whose judgments and amendments I
wished most to have the benefit, before presenting it to the
committee; and you have seen the original paper now in my
hands, with the corrections of Doctor Franklin and Mr. Adams
interlined in their own handwritings. Their alterations were
two or three only, and merely verbal. I then wrote a fair
copy, reported it to the committee, and from them,
unaltered, to Congress. This personal communication and
consultation with Mr. Adams he has misremembered into the
actings of a sub-committee. Pickering's observations, and Mr.
Adams's in addition, 'that it contained no new idea, that it
is a commonplace compilation, its sentiments hackneyed in
Congress for two years before, and its essence contained in
Otis's pamphlet,' may all be true. Of that I am not to be the
judge. Richard Henry Lee charged it as copied from Locke's
Treatise on Government. Otis's pamphlet I never saw, and
whether I had gathered my ideas from reading or reflection I
do not know. I know only that I turned to neither book nor
pamphlet while writing it. I did not consider it as any part
of my charge to invent new ideas altogether, and to offer no
sentiment which had ever been expressed before. Had Mr. Adams
been so restrained, Congress would have lost the benefit of
his bold and impressive advocations of the rights of
revolution. For no man's confident and fervid addresses, more
than Mr. Adams's, encouraged and supported us through the
difficulties surrounding us, which, like the ceaseless action
of gravity, weighed on us by night and by day. Yet, on the
same ground, we may ask what of these elevated thoughts was
new, or can be affirmed never before to have entered the
conceptions of man?
"Whether, also, the sentiment of Independence, and the
reasons for declaring it, which make so great a portion of
the instrument, had been hackneyed in Congress for two years
before the 4th of July, 1776, or this dictum of Mr. Adams be
another slip of memory, let history say. This, however, I
will say for Mr. Adams, that he supported the Declaration
with zeal and ability, fighting fearlessly for every word of
it. As to myself, I thought it a duty to be, on that
occasion, a passive auditor of the opinions of others, more
impartial judges than I could be of its merits or demerits.
During the debate I was sitting by Doctor Franklin, and he
observed that I was writhing a little under the acrimonious
criticisms on some of its parts; and it was on that occasion,
that, by way of comfort, he told me the story of John
Thomson, the hatter, and his new sign." (Jefferson's Works,
IV. 376.)
The substantial point of difference in these two accounts of
the same transaction, relates to the action of the committee
in designating the person or persons who were to prepare the
draft of a Declaration. Mr. Adams states that Mr. Jefferson
and himself were appointed a sub-committee to prepare it; Mr.
Jefferson states that he alone was directed by the committee
to write the Declaration. This question is not important,
since Mr. Adams's version does not in the least impair Mr.
Jefferson's claim to the authorship of the instrument. The
latter, it must be allowed, gracefully parries the
criticisms of Mr. Adams, by a noble allusion to the eloquence
which sustained his compatriots in the difficulties and
embarrassments that surrounded them, and which they did not
think of analyzing, for the purpose of tracing the exact
originality of its sentiments.
It is proper to add, that Mr. Jefferson's account is
confirmed by the original manuscript draft of the
Declaration, a fac-simile of which was published in 1829, in
the fourth volume of his Works, exhibiting the corrections
and interlineations made by Dr. Franklin and Mr. Adams in
their respective handwritings. These emendations were not
important.
The reasons assigned by Mr. Adams for the selection of Mr.
Jefferson as the writer of the Declaration are so numerous,
that it is difficult to determine which of them he intended
should be regarded as the principal or decisive one. In the
autobiography, he states that there were more reasons than
one why Mr. Jefferson was appointed on a committee of such
importance. He assigns two reasons: one, Mr. Jefferson's
reputation as a writer, and the other, the desire of his
Virginia colleagues to have Mr. Jefferson supplant Mr.
Richard Henry Lee. In his letter to Mr. Pickering, Mr. Adams
gives as the reason why Mr. Jefferson was placed at the head
of the committee, that it was "the Frankfort advice to place
Virginia at the head of every thing"; but he also adds, that
Mr. Jefferson brought with him to Congress "a reputation for
literature, science, and a happy talent of composition," and
that this reputation had then been sustained by writings
"remarkable for their peculiar felicity of expression." As in
the case of Washington, therefore, it would seem that there
were reasons of eminent fitness and qualification for the
duty assigned; and certainly the Declaration of Independence
itself fully justifies the selection. Few state papers have
ever been written with more skill, or greater adaptation to
the purposes in view. Whether its sentiments were purely
original with its author, or were gathered from the political
philosophy which had become familiar to the American mind,
through the great discussions of the time, it must for ever
remain an imperishable monument of his power of expression,
and his ability to touch the passions, as well as to address
the reason, of mankind. It would be inappropriate to apply to
its style the canons of modern criticism. Its statements of
political truth, taken in the sense in which they were
manifestly intended, can never be successfully assailed. With
regard to the passage concerning slavery, we may well
conceive that both Northern and Southern men might have felt
the injustice of the terrible denunciation with which he
charged upon _the King_ all the horrors, crimes, and
consequences of the African slave-trade, and in which he
accused him of exciting the slaves to insurrection, and "to
purchase the liberty of which _he_ had deprived them by
murdering the people upon whom _he_ had obtruded them." Mr.
Jefferson, in drawing up the list of our national accusations
against the King, obviously intended to refer to him as the
representative of the public policy and acts of the mother
country; and it is true that the imperial government was, and
must always remain, responsible for the existence of slavery
in the colonies. But this was not one of the grievances to be
redressed by the Revolution; it did not constitute one of the
reasons for aiming at independence; and there was no
sufficient ground for the accusation that the government of
Great Britain had knowingly sought to excite general
insurrections among the slaves. The rejection of this passage
from the Declaration shows that the Congress did not consider
this charge to be as tenable as all their other complaints
certainly were.
FOOTNOTES:
[53] Richard Henry Lee, the mover of this resolution, was born on the
20th of June, 1732, at Stratford, Westmoreland County, Virginia. His
earlier education was completed in England, whence he returned in his
nineteenth year. Possessed of a good fortune, he devoted himself to
public affairs. At the age of twenty-five, he entered the House of
Burgesses, where he became a distinguished advocate of republican
doctrines, and a strenuous opponent of the right claimed by Parliament
to tax the colonies, of the Stamp Act, and of the other arbitrary
measures of the home government, coöperating with Patrick Henry in all
his great patriotic efforts. He was the author of the plan adopted by
the House of Burgesses in 1773, for the formation of committees of
correspondence, to be organized by the colonial legislatures, and out of
which grew the plan of the Continental Congress. In 1774, he was elected
one of the delegates from Virginia to the Congress, in which body, from
his known ability as a political writer and his services in the popular
cause, he was placed on the committees to prepare the addresses to the
King, to the People of Great Britain, and to the People of the Colonies,
the last of which he wrote. In the second Congress, he was selected to
move the resolution of Independence; and besides serving on other very
important committees, he furnished, as chairman of the committee
instructed to prepare them, the commission and instructions to General
Washington. As mover of the resolution of Independence, he would,
according to the usual practice, have been made chairman of the
committee to prepare the Declaration; but on the 10th of June, the day
when the subject was postponed, he was obliged to leave Congress, and
return home for a short time, on account of the illness of some member
of his family. He came back to Congress and remained a member until
June, 1777, when he went home on account of ill health. In August, 1778,
he was again elected a member, and continued to serve until 1780; but
from feeble health was compelled to take a less active part than he had
taken in former years. He was out of Congress from 1780 until 1784, when
he was elected its President, but retired at the end of the year. He was
opposed to the Constitution of the United States, but voted in Congress
to submit it to the people. After its adoption, he was elected one of
the first Senators under it from Virginia, and in that capacity moved
and carried several amendments. In 1792, his continued ill health
obliged him to retire from public life. He died June 19, 1794.
[54] Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and
R. R. Livingston.
[55] See note at the end of the chapter.
[56] On the 24th of June, 1776, the Congress declared, by resolution,
that "all persons abiding within any of the United Colonies, and
deriving protection from the laws of the same, owed allegiance to the
said laws, and were members of such colony; and that all persons passing
through or making a temporary stay in any of the colonies, being
entitled to the protection of the laws, during the time of such passage,
visitation, or temporary stay, owed, during the same, allegiance
thereto." Journals, II. 216.
[57] The title of "The United States of America" was formally assumed in
the Articles of Confederation, when they came to be adopted. But it was
in use, without formal enactment, from the date of the adoption of the
Declaration of Independence. On the 9th of September, 1776, it was
ordered that in all continental commissions and other instruments, where
the words "United Colonies" had been used, the style should be altered
to the "United States." Journals, II. 349.
[58] Journals, II. 263, 320; III. 123, 502, 513.
[59] From June 11, 1776, to November 17, 1777.
[60] Sparks's Washington, III. 20, note.
[61] Works, III. 20.
[62] Ibid. 46.
[63] Ibid. 47.
[64] Ibid. 55.
[65] Ibid. 56.
[66] Letters of General Washington to the President of Congress,
September 21, 1775 (Works, III. 98); October 30, 1775 (Ibid. 137);
November 8, 1775 (Ibid. 146).
[67] Letters of General Washington to Joseph Reed, November 8, 1775
(Works, III. 150); November 28, 1775 (Ibid. 177); and to the President
of Congress, December 4, 1775 (Ibid. 184); to Governor Cooke of
Connecticut, December 5, 1775 (Ibid. 188).
[68] Journals of Congress, II. 208, September 29, 1775.
[69] Writings of Washington, III. 123, note.
[70] February 9, 1776 (Works, III. 278).
[71] Mr. Jefferson once said to my kinsman, Mr. George Ticknor, that
when they had any doubtful and difficult measure to carry in this
Congress, they counted the four New England colonies, and Virginia, as
_sure_; and then they looked round to see where they could get two more,
to make the needful majority.
[72] The General Assembly of New York met on the 10th of January, 1775,
and by a small majority refused to approve of the non-importation
association formed by the first Congress, and also declined to appoint
delegates to the second Congress, which was to assemble in May. They
adopted, however, a list of grievances, which was substantially the same
with that which had been put forth by the first Congress. Towards the
close of the session, in the absence of some of the patriotic members,
petitions to the King and to Parliament were adopted, which differed
somewhat from the principles contained in their list of grievances, and
in which they disapproved "of the violent measures that had been pursued
in some of the colonies." But the people of New York generally conformed
to the non-importation agreement; and on the 20th of April they met in
convention and appointed delegates to the second Congress, "to concert
and determine upon such matters as shall be judged most advisable for
the preservation and reëstablishment of American rights and privileges."
Pitkin's History of the United States, I. 324.
[73] "I do not mean," the orders continued, "that they should be kept in
close confinement. If either of these bodies should incline to send them
to any interior towns, upon their parole not to leave them until they
are released, it will meet with my concurrence. For the present, I shall
avoid giving you the like order in respect to the Tories in Portsmouth;
but the day is not far off, when they will meet with this, or a worse
fate, if there is not a considerable reformation in their conduct."
Writings of Washington, III. 158, 159.
[74] Writings of Washington, III. 230, note.
[75] Writings of Washington, III. 230, note. See also Marshall's Life of
Washington, II. 285-287.
[76] Writings of Washington, III. 230.
[77] Ibid., note.
[78] Journals of Congress, II. 7-9. January 3, 1776. Congress had, on
the 2d of January, passed resolves, recommending to the different
assemblies, conventions, and committees or councils of safety, to
restrain the Tories, and had declared that they ought to be disarmed,
and the more dangerous of them kept in custody. For this purpose, the
aid of the continental troops stationed in or near the respective
colonies was tendered to the local authorities. Journals, II. 4, 5.
[79] The resolves of the Congress on this subject amounted to an
outlawry of the persons against whom they were directed. They were
introduced by a preamble, reciting the disaffection of a majority of the
inhabitants of Queen's County, evinced by their refusal to elect
deputies to the convention of the colony, by their public declaration of
a design to remain inactive spectators of the contest, and their general
want of public spirit; and declaring, that "those who refuse to defend
their country should be excluded from its protection, and prevented from
doing it injury." The first resolve then proceeded to declare that all
the inhabitants of Queen's County named in a list of delinquents
published by the Convention of New York be put out of the protection of
the United Colonies, that all trade and intercourse with them cease, and
that no inhabitant of that county be permitted to travel or abide in any
part of the United Colonies, out of that county, without a certificate
from the Convention or Committee of Safety of New York, setting forth
that such inhabitant is a friend to the American cause, and not of the
number of those who voted against sending deputies to the Convention;
and that any inhabitant found out of the county, without such
certificate, be apprehended and imprisoned three months. The second
resolve declared that any attorney or lawyer who should commence,
prosecute, or defend any action at law, for any inhabitant of Queen's
County who voted against sending deputies to the Convention, ought to be
treated as an enemy to the American cause. The fourth resolve directed
that Colonel Nathaniel Heard, of Woodbridge, N. J., should march, with
five or six hundred minute-men, to the western part of Queen's County,
and that Colonel Waterbury, of Stamford, Connecticut, with the same
number of minute-men, march to the eastern side; that they confer
together and endeavor to enter the county on the same day, and that they
proceed to disarm every person in the county who voted against sending
deputies to the Convention, and cause them to deliver up their arms and
ammunition on oath, and confine in safe custody, until further orders,
all those who should refuse compliance. These resolves were passed on
the 3d of January, 1776, and were reported by a committee on the state
of New York. On the 10th of January, on account of "the great distance
from Colonel Heard to Colonel Waterbury, and the difficulty of
coöperating with each other in their expedition into Queen's County,"
Congress directed Lord Stirling to furnish Colonel Heard with three
companies from his command, who were to join Colonel Heard with his
minute-men, and proceed immediately on the expedition; and also directed
Heard to inform Waterbury that his services would not be required.
Journals, II. 21.
[80] He received this impression from General Lee, who wrote on the 16th
of January and informed him that Colonel Waterbury had "received orders
to disband his regiment, and the Tories are to remain unmolested till
they are joined by the King's assassins." Sparks's Life of Gouverneur
Morris, I. 75.
[81] Letter to General Lee, January 23, 1776. Writings of Washington,
III. 255.
[82] Marshall's Life of Washington, II., Appendix, xvii.
[83] Letter to General Lee, January 31, 1776. Writings of Washington,
III. 275.
[84] February 6, 1776. Journals, II. 51.
[85] Sparks's Life of Gouverneur Morris, I. 75, 76. They wished to "save
appearances with the [enemy's] ships of war, till at least the month of
March."
[86] January 26, 1776. Journals, II. 39.
[87] January 30.
[88] March 14, 1776. Journals, II. 91.
[89] Letter of General Washington to the President of Congress.
[90] Resolve passed October 5, 1775. Journals of Congress, II. 197.
[91] These vessels were fitted out from the ports of Salem, Beverly,
Marblehead, and Plymouth. They were officered and manned chiefly by
sea-captains and sailors who happened to be at that time in the army.
They sailed under instructions from General Washington, to take and
seize all vessels in the ministerial service, bound into or out of
Boston, having soldiers, arms and ammunition, or provisions on board,
and to send them into the nearest port, under a careful prize-master, to
wait his further directions. The first person commissioned in this way
by the Commander-in-chief was Captain Nicholas Broughton of Marblehead,
who sailed in the schooner Hannah, fitted out at Beverly; and in his
instructions he was described as "a captain in the army of the United
Colonies of North America," and was directed to take the command of "a
detachment of said army, and proceed on board the schooner Hannah,
lately fitted out, &c. at the continental expense." Another of these
vessels, called the Lee, was commanded by Captain John Manly. The names
of three others of them were the Harrison, the Washington, and the
Lynch. The name of the sixth vessel is not known, but the names of the
four other captains were Selman, Martindale, Coit, and Adams. (Writings
of Washington, III. 516.) When Washington received directions from the
President of Congress to send two vessels to the mouth of the St.
Lawrence, he wrote, on the 12th of October, that one of these vessels
was then out, and that two of them would be despatched as directed,
immediately. (Ibid., III. 124.) In the course of a few weeks, they were
all out.
[92] Letter to the President of Congress, November 11, 1775. Writings of
Washington, III. 154.
[93] Journals, I. 260.
[94] On the 4th of December, he repeated his former recommendation to
the President of Congress. (Writings of Washington, III. 184.) On the
26th of December, he wrote to Richard Henry Lee, in Congress, begging
him to use his influence in having a court of admiralty or some power
appointed to hear and determine all matters relative to captures;
saying, "You cannot conceive how I am plagued on this head, and how
impossible it is for me to hear and determine upon matters of this sort,
when the facts, perhaps, are only to be ascertained at ports forty,
fifty, or more miles distant, without bringing the parties here
[Cambridge] at great trouble and expense. At any rate, my time will not
allow me to be a competent judge of this business." Ibid., III. 217.
[95] Letter to the President of Congress, February 9, 1776. Ibid., III.
282. Letter to Joseph Reed, February 10, 1776. Ibid., III. 284.
[96] Ibid., III. 370.
[97] This was the emission ordered on the 23d of June, 1775. There were
_forty-nine thousand_ bills of each denomination from one dollar to
eight dollars, inclusive, and _eleven thousand eight hundred_ bills of
the denomination of twenty dollars. The form of the bills was as follows
(Journals, I. 126):--
CONTINENTAL CURRENCY.
No. ________________ Dollars.
This Bill entitles the Bearer to receive ________________
Spanish milled Dollars, or the value thereof in Gold or
Silver, according to the Resolutions of the Congress, held at
Philadelphia on the 10th day of May, A. D. 1775.
[98] Journals, I. 177.
[99] Journals, I. 126, 177. The signers of the bills were allowed a
commission of one dollar and one third of a dollar on each thousand of
the bills signed by them. Ibid.
[100] Ante, p. 35.
[101] Writings of Washington, III. 104, 167, 173, 178, 283.
[102] Writings of Washington, III. 278; IV. 115; V. 328. Mr. Sparks has
preserved an anecdote, which shows the perpetuation of this feeling
about standing armies, and evinces also that Washington possessed more
humor than has been generally attributed to him. In the Convention for
forming the Constitution of the United States, some member proposed to
insert a clause in the Constitution, limiting the army of the United
States to _five thousand men_. General Washington, who was in the chair,
observed that he should not object to such a clause, if it were so
amended as to provide that no enemy should ever presume to invade the
United States with more than _three thousand_.
CHAPTER IV.
JULY, 1776--NOVEMBER, 1777.
CONSEQUENCES OF THE DECLARATION OF INDEPENDENCE.--REORGANIZATION OF
THE CONTINENTAL ARMY.--FLIGHT OF THE CONGRESS FROM PHILADELPHIA.--PLAN
OF THE CONFEDERATION PROPOSED.
When the Declaration of Independence at length came, it did not in any
way change the form of the revolutionary government. It created no
institution, and erected no civil machinery. Its political effect has
already been described. Its moral effect, both upon the members of the
Congress and upon the country, was very great, inasmuch as it put an end
alike to the hope and the possibility of a settlement of the controversy
upon the principles of the English Constitution, for it made the
colonies free, sovereign, and independent states. Men who had voted for
such a measure, and who had put their signatures to an instrument which
the British Parliament or the Court of King's Bench could have had no
difficulty in punishing as treasonable, could no longer continue to feed
themselves on "the dainty food of reconciliation."[103] Thenceforward,
there was no retreat. The colonies might be conquered, overrun, and
enslaved; but this, or the full and final establishment of their own
sovereignty, were the sole alternatives. The consequence was, that the
Declaration was followed by a greater alacrity on the part of the whole
body of the Congress to adopt vigorous and decisive measures, than had
before prevailed among them.
But there was one feeling which the Declaration did not dispel, and
another to which it immediately gave rise, both of which were
unfavorable to concentrated, vigorous, and effective action on the part
of the revolutionary government. The Declaration of Independence did not
dissipate the unreasonable and ill-timed jealousy of standing armies,
which gave way, at last, only when the country was in such imminent
peril that Washington felt it to be his duty to ask for extraordinary
powers, to be conferred upon himself. It was followed, too, as an
immediate consequence, by that jealousy with regard to State rights, and
that adhesion to State interests, which have existed in our system from
that day to the present, and are not entirely separable from it. As the
Declaration made the colonies sovereign and independent, and was
followed by the formation of State governments, before the creation of
any well-defined national system, State sovereignty became at once an
ever-present cause of embarrassment to the Congress, in whose
proceedings entire delegations sometimes made the interests of the
country bend to the interests of their own State, to a mischievous
extent.
To explain these observations, we must recur again to the history of the
army, and to the efforts of Washington to have the military
establishment put into a safe and efficient condition.
* * * * *
After the evacuation of Boston by the British forces, General Washington
proceeded, at once, with the continental army to the city of New York,
where he arrived on the 13th of April, 1776. The loss of the battle of
Long Island on the 27th of August, and the extreme improbability of his
being able to hold the city against the superior forces by which it had
been invested through the entire summer, made it necessary for him to
appeal once more to the Congress for the organization of a permanent
army, capable of offering effectual resistance to the enemy. The
establishment formed at Cambridge in the autumn previous was to continue
for one year only; it was about to be dissolved; and in the month of
September General Washington was compelled to abandon the city of New
York to the enemy. Before he withdrew from it, he addressed a letter to
the President of Congress, on the 2d of September, in which he told that
body explicitly that the liberties of the country must of necessity be
greatly hazarded, if not entirely lost, should their defence be left to
any but a permanent standing army; and that, with the army then under
his command, it was impossible to defend and retain the city.[104] On
the 20th of the same month, he again wrote, expressing the opinion that
it would be entirely impracticable to raise a proper army, without the
allowance of a large and extraordinary bounty.[105]
At length, when he had retreated to the Heights of Haerlem, and found
himself surrounded by a body of troops impatient of restraint, because
soon to be entitled to their discharge, and turbulent and licentious,
because they had never felt the proper inducements which create good
conduct in the soldier, he made one more appeal to the patriotism and
good sense of the Congress. Few documents ever proceeded from his pen
more wise, or evincing greater knowledge of mankind, or a more profound
apprehension of the great subject before him, than the letter which he
then wrote concerning the reorganization of the army.[106]
Before this letter was written, however, urged by his repeated requests
and admonished by defeat, the Congress had adopted a plan, reported by
the Board of War, for the organization of a new army, to serve during
the war. A long debate preceded its adoption, but the resolves were at
length passed on the 16th of September, 1776.[107] They authorized the
enlistment of a body of troops, to be divided into eighty-eight
battalions, and to be enlisted as soon as possible. These battalions
were to be raised by the States; a certain number being assigned to each
State as its quota. The highest quota, which was 15, was assigned to
the States of Virginia and Massachusetts, respectively. Pennsylvania had
12; North Carolina, 9; Maryland and Connecticut, 8 each; South Carolina,
6; New York and New Jersey, 4 each; New Hampshire, 3; Rhode Island, 2;
and Delaware and Georgia, 1 each. The inducements to enlist were a
bounty of twenty dollars and one hundred acres of land to each
non-commissioned officer or soldier; and to the commissioned officers,
the same bounty in money, with larger portions of land.[108] The States
were to provide arms and clothing for their respective quotas, and the
expense of clothing was to be deducted from the pay.[109] Although the
officers were to be commissioned by the Continental Congress, each State
was to appoint the officers of its own battalions, from the colonel to
those of the lowest grade, inclusive. A circular letter was addressed by
Congress to each State, urging its immediate attention to the raising of
these troops; and a committee of three members of the Congress was sent
to the head-quarters of General Washington, to confer with him on the
subject.[110]
Two serious defects in this plan struck the Commander-in-chief, as soon
as it was laid before him; but the resolves had been passed, and passed
with difficulty, before he had an opportunity specifically to point out
the mistakes. In the first place, by giving the appointment of the
officers to the States, any central system of promoting or placing the
officers then serving on the continental establishment according to
their characters and deserts was rendered impossible. The resolutions of
Congress did not even recommend these officers to the consideration of
their respective States. They were left to solicit their appointments at
a distance, or to go home and make personal application. Those who chose
to do the latter were more likely to get good places than those who
remained at their posts; but they were also less likely to be deserving
of important commissions than those who stayed with the army. To expect
that a proper attention would be paid to the claims of men of real
merit, under such a system,--whether they had or had not been in service
before,--or that the army when brought together would be found to be
officered on a uniform principle, exhibiting an adaptation of character
to station, was, in Washington's view, to expect that local authorities
would not be influenced by local attachments, and that merit would make
its way, in silence and absence, against personal importunity and bold
presumption.
But Washington saw no remedy for these evils, except by opening a direct
communication with the States, through which he might exert some
influence over their appointments. He immediately suggested to the
Congress, that each State should send a commission to the army, with
authority to appoint all the officers of the new regiments. Congress
passed a resolve recommending this step to the States, and advising that
the Commander-in-chief should be consulted in making the appointments;
that those officers should be promoted who had distinguished themselves
for bravery and attention to their duties; that no officer should be
appointed who had left his station without leave; and that all the
officers to be appointed should be men of honor and known abilities,
without particular regard to their having been in service before.[111]
This was but a partial remedy for the defects of the system. Several of
the States sent such a commission to act with the Commander-in-chief;
but many of them were tardy in making their appointments, and finally
the Congress authorized General Washington to fill the vacancies.
Another and a dangerous defect in this plan was, that the continental
pay and bounty on enlistment were fixed so low, that some of the States,
in order to fill up their quotas, deemed it expedient to offer a further
pay and bounty to their own men. This was done immediately by the States
of Connecticut and Massachusetts. The consequence was likely to be,
that, if the quotas of some States were raised before the fact became
known that other States had increased the pay and the bounty, some
regiments would, when the army came together, be on higher pay than
others, and jealousy, impatience, and mutiny must inevitably follow.
Knowing that a different pay could not exist in the same army without
these consequences, General Washington remonstrated with the Governor of
Connecticut, arrested the proceedings of the commissioners of that State
and of Massachusetts, and prevented them from publishing their terms,
until the sense of the Congress could be obtained.[112] That body, on
receiving from him another strong representation on the subject, passed
a resolve augmenting the pay.
* * * * *
Still, the system, notwithstanding these efforts to amend it, worked
ill. The appointment of the officers by the States was incapable of
being well managed; the pay and bounty, even after they were increased,
were insufficient; and the whole scheme of raising a permanent army was
entered upon at too late a period to be effectually accomplished. As
late as the middle of November, so little had been done, that the whole
force on one side of the Hudson, opposed to Howe's whole army, did not
exceed two thousand men of the established regiments; while, on the
other side, there was a force not much larger to secure the passes into
the Highlands.[113] "I am wearied almost to death," said the
Commander-in-chief, in a private letter, "with the retrograde motion of
things, and I solemnly protest that a pecuniary reward of twenty
thousand pounds a year would not induce me to undergo what I do; and
after all, perhaps, to lose my character, as it is impossible, under
such a variety of distressing circumstances, to conduct matters
agreeably to public expectation, or even to the expectations of those
who employ me, as they will not make proper allowances for the
difficulties their own errors have occasioned."[114]
There are few pages in our history so painful as those on which are
recorded the complaints extorted from Washington, at this period, by the
trials of his situation. That he, an accomplished soldier, who had
retired with honor from the late war with France to his serene Mount
Vernon; who had left it again, to stake life, and all that makes life
valuable, on the new issue of his country's independence; who asked no
recompense and sought no object but her welfare, should have been
compelled to pass into the dark valley of the retreat through New
Jersey, with all its perplexities, dangers, and discouragements,--its
cruel exertions and its humiliating reverses,--without a powerful and
energetic government to lean upon, and with scarcely more than Divine
assistance to which to turn, presents, indeed, to our separate
contemplation, a disheartening and discreditable fact. But no trials are
appointed to nations, or to men, without their fruits. The perplexities
and difficulties which surrounded Washington in the early part of the
Revolution contributed, undoubtedly, to give him that profound civil
wisdom, that knowledge of our civil wants, and that influence over the
moral sense of the country, which were afterwards so beneficently felt
in the establishment of the Constitution. The very weakness of the
government which he served became in this manner his and our strength.
Without the trials to which it subjected him, it may well be doubted
whether we should now possess that tower of strength,--that security
against distracted counsels and clashing interests,--which exist for us
in the character and services of that extraordinary man.
It is not necessary to sketch the scene or to follow the route of
General Washington's retreat through New Jersey, except as they
illustrate the subject of this work,--the constitutional history of the
country. Its remarkable military story is well known. On the 23d of
November, four days after the date of the letter to his brother above
quoted, he was at Newark, with a body of troops whose departure was near
at hand, and for supplying whose places no provision had been made. The
enemy were pressing on his rear, and in order to impress upon Congress
the danger of his situation, he sent General Mifflin to lay an exact
account of it before them.[115] On the 28th, he marched out of Newark in
the morning, and Lord Cornwallis entered it on the afternoon of the same
day. On the 30th, he was at Brunswick, endeavoring, but with little
success, to raise the militia;--the terms of service of the Jersey and
Maryland brigades expiring on that day. On the 1st of December, his
army numbered only four thousand men, and the enemy were pushing forward
with the greatest energy.[116] On the 5th, he resolved to march back to
Princeton; but neither militia nor regulars had come in, and it was too
late to prevent an evil, which he had both foreseen and foretold.[117]
On the 8th, he crossed the Delaware.[118] On the 12th, he saw his little
handful of men still further decrease, and now, without succors from the
government, or spirited exertions on the part of the people, the loss of
Philadelphia--"an event," said he, "which will wound the heart of every
virtuous American"--rose as a spectre in his path.[119] On the 16th, as
he moved on, gathering all the great energies of his character to parry
this deep disgrace, concentrating every force that remained to him
towards the defence of the city, and animating and directing public
bodies, in a tone of authority and command, he once more urged the
Congress to discard all reliance upon the militia, to augment the number
of the regular troops, and to strain every nerve to recruit them.[120]
Finally,--being still in doubt whether Howe did not intend an attack on
Philadelphia, before going into winter quarters,--with less than three
thousand men fit for duty, to oppose a well-appointed army of ten or
twelve thousand, and surrounded by a population rapidly submitting to
the enemy,--he felt that the time had come, when to his single hands
must be given all the military authority and power which the Continental
Union of America held in trust for the liberties of the country. On the
20th of December, therefore, he wrote to the President of Congress a
memorable letter, asking for extraordinary powers, but displaying at the
same time all the modesty and high principle of his character.[121]
To this appeal Congress at once responded, in a manner suited to the
exigency. On the 27th of December, 1776, they passed a resolution,
vesting in General Washington ample and complete power to raise and
collect together, in the most speedy and effectual manner from all or
any of the United States, sixteen battalions of infantry, in addition
to those already voted; to appoint the officers of these battalions;
to raise, officer, and equip three regiments of artillery and a corps
of engineers, and to establish their pay; to apply to any of the
States for such aid of their militia as he might judge necessary; to
form such magazines of provisions, and in such places, as he should
think proper; to displace and appoint all officers under the rank of
brigadier-general; to fill up all vacancies in every other department
of the American army; to take, wherever he might be, whatever he might
want for the use of the army, if the inhabitants would not sell it,
allowing a reasonable price for the same; to arrest and confine
persons who should refuse to receive the continental currency, or were
otherwise disaffected to the American cause; and to return to the
States of which such persons were citizens their names and the nature
of their offences, together with the witnesses to prove them. These
powers were vested in the Commander-in-chief for the space of six
months from the date of the resolve, unless sooner revoked by the
Congress.[122]
* * * * *
The powers thus conferred upon General Washington were in reality those
of a military dictatorship; and in conferring them, the Congress acted
upon the maxim that the public safety is the supreme law. They acted,
too, as if they were the proper judges of the exigency, and as if the
powers they granted were then rightfully in their hands. But it is a
singular proof of the unsettled and anomalous condition of the political
system of the country, and of the want of practical authority in the
continental government, that, in three days after the adoption of the
resolves conferring these powers, the Congress felt it necessary to
address a letter to the Governors of the States, apologizing for this
step. Nor was their letter a mere apology. It implied a doubt whether
the continental government possessed a proper authority to take the
steps which the crisis demanded, and whether the execution of all
measures did not really belong to the States, the Congress having only a
recommendatory power. "Ever attentive," their letter declared, "to the
security of civil liberty, Congress would not have consented to the
vesting of such powers in the military department as those which the
inclosed resolves convey to the continental Commander-in-chief, if the
situation of public affairs did not require, at this crisis, a decision
and vigor which distance and numbers deny to assemblies far removed from
each other and from the seat of war." The letter closed, by requesting
the States to use their utmost exertions to further such levies as the
general might direct, in consequence of the new powers given him, and to
make up and complete their quotas as formerly settled.[123]
Strictly examined, therefore, the position taken by the Congress was,
that a crisis existed demanding the utmost decision and vigor; that the
measures necessary to meet it, such as the raising of troops and the
compulsory levying of supplies, belonged to the States; but that, the
State governments being removed from each other and from the seat of
war, the Congress confers upon the continental general power to do
things which in reality it belongs to the States to do. In this there
was a great inaccuracy, according to all our present ideas of
constitutional power. But still the action of the Congress expresses and
exhibits their real situation. It contains a contradiction between the
true theory of their revolutionary powers and the powers which they
could in fact practically exercise. Upon principle, it was just as
competent to the Congress to take the steps required by the exigency, as
it was to adjudge them to the States; and it was just as competent to
the Congress to do any thing directly, as to confer a power to do it on
their general. But the jealousies of the States, the habits of the
country, and the practical working of the existing institutions, had
never permitted the full exercise of the revolutionary powers which
properly resided in the hands of the Congress. The true theory of their
situation was limited by practical impossibilities; and an escape from
contradictions became impossible. It was perceived that the States would
neither pass laws or resolves for the summary raising of forces and
levying of supplies, nor allow this to be done by committees or
commissioners of Congress; but it was believed that they would acquiesce
in its being done by General Washington, out of respect for his
character, for his abilities and his motives, and from conviction that
he alone could save the country.
The expectations of the Congress were not disappointed. It was felt
throughout the country, that such powers could be lodged in the hands of
Washington without danger. The States in general acquiesced in the
necessity and propriety of this measure, and there was little
disposition to encroach upon or to complain of the authority conferred.
To this acquiescence, however, there were exceptions.[124]
* * * * *
The period which now followed was a part of the interval during which
the Articles of Confederation were pending in Congress. We have seen
that the plan of a confederation was reported to that body in July,
1776, and finally adopted for recommendation to the States in November,
1777. But soon after the extraordinary powers had been conferred upon
General Washington, the attendance of the members began to diminish, and
several of the most eminent and able men, who had hitherto served,
retired from Congress. In January, 1777, there were no delegations
present from the States of Delaware and New York;[125] and in February,
the absence of many distinguished men, whose counsels had been of vast
importance, made a striking deficiency. The formation of the State
governments, and the local affairs of the States, absorbed for a time,
with a few important exceptions, the best civil talent in the
country.[126]
While the personal efficiency and wisdom of the Congress thus sensibly
declined, no change took place in the nature of their powers, or in
their relations to the States, that would impart greater vigor to their
proceedings. The delegations of many of the States were renewed in the
winter of 1776-7; but there was a great diversity, and in some cases a
great vagueness, in their instructions.[127] In such a state of
things,--with no uniform rule prescribing the powers of the Congress,
and with some uncertainty in that body itself with regard to its
authority to confer upon the Commander-in-chief the powers with which he
was now invested,--however general might be the readiness of the country
to acquiesce in their necessity, it is not surprising that State
jealousy was sometimes aroused, or that it should have been unreasonable
in some of its manifestations.
A striking instance of this jealousy occurred upon the occasion of a
proclamation issued by General Washington at Morristown, on the 25th of
January, 1777. Sir William Howe had published a proclamation in New
Jersey, offering protection to such of the inhabitants as would take an
oath of allegiance to the King. Many of the substantial farmers of the
country had availed themselves of this offer, and had received
protections from the British general. The English and Hessian troops,
however, made no distinction between friends and foes, but frequently
committed great outrages both upon person and property. The resentment
of the population would have restored them to the patriot side; but many
who had taken the oath of allegiance felt, or affected, in consequence,
scruples of conscience.
General Washington therefore issued a counter-proclamation, commanding
all persons who had received the enemy's protection to repair to
head-quarters, or to some general officer of the army, and to surrender
their protections and take an oath of allegiance to the United
States;--allowing thirty days for those who preferred to remain under
the protection of Great Britain to withdraw within the enemy's lines.
This was considered in some quarters as an undue exercise of power. The
idea of an oath of allegiance to the United States, before the
Confederation was formed, was regarded by many as an absurdity.
Allegiance, it was said, was due exclusively to the State of which a man
was an inhabitant; the States alone were sovereign; and it was for each
State, not for the United States, which possessed no sovereignty, to
exact this obligation. The Legislature of New Jersey were disposed to
treat General Washington's proclamation as an encroachment on their
prerogatives: and one of the delegates of that State in Congress
denounced it as improper.[128]
This feeling was shared by other members; but it is not to be doubted,
that the proceeding was a legitimate exercise of the authority vested in
the Commander-in-chief. He had been expressly empowered to arrest and
confine persons disaffected to the American cause; and the requiring
them to attend at his head-quarters was clearly within the scope of this
authority. Moreover, although no confederation or political union of the
States had been formed under a written compact, yet the United States
were waging war, as a government regularly constituted by its
representatives in a congress, for the very purpose of carrying on such
war. They had an army in the field, whose officers held continental
commissions, and were paid by a continental currency. They were
exercising certain of the attributes of sovereignty as a belligerent
power; and in that capacity they had a complete right to exact such an
obligation not to aid the enemy, as would separate their friends from
their foes. It was a military measure; and the tenor of the proclamation
shows that General Washington exacted the oath in that relation. To
pause at such a moment, and to consider nicely how much sovereignty
resided in each of the States, and how much or how little belonged to
the United States, was certainly a great refinement. But it marks the
temper of the times, and the extreme jealousy with which all continental
power and authority were watched at that period.[129]
We have seen that the powers conferred upon General Washington
authorized him to raise, in the most speedy and effectual manner,
sixteen battalions of infantry, in addition to those before voted by
Congress, three regiments of artillery, and a corps of engineers; and
also to apply to any of the States for the aid of their militia when
wanted.[130] At the period when he addressed himself to this great
undertaking of forming a new army, for the third time, the existing
force which he had with him in and around New Jersey was about to be
dissolved. The additional regiments of the regular line were to be
raised by the States, and upon them alone could he depend for the supply
of a new army, with which to commence the campaign in the spring of
1777. He had labored, he said, ever since he had been in the service, to
discourage all kinds of local attachments and distinctions of country,
denominating the whole by the greater name of AMERICAN; but he had found
it impossible to overcome prejudices.
Two causes especially embarrassed his efforts in the formation of the
new army; and both of them show how powerful were the centrifugal forces
of our system at that period, and how little hold that great central
name had taken upon the people of the different States. One of these
causes was the persistence of some of the States in giving extra
bounties to encourage enlistments into their quotas of the original
eighty-eight battalions not yet raised. The bounty allowed by Congress
was twenty dollars to every soldier enlisting into the new establishment
for three years or during the war. The additional bounty offered by
Massachusetts was sixty-six dollars and two thirds. There was thus an
inducement of eighty-six dollars and two thirds offered to the men then
in the service of the United States, not to reënlist in their old
regiments, as fast as their time of service expired, but to go to
Massachusetts and enlist in the fresh quotas which were forming in that
State, and which were to be afterwards mustered into the continental
service. The same inconsiderate and unpatriotic policy was pursued in
all the Eastern States, and before the spring opened, the consequences
began to be felt in the state of the new continental battalions which
General Washington was endeavoring to procure from some of the Middle
States, and in which he would not sanction the allowance of an extra
bounty, regarding it as an indirect breach of the union, and of the
agreement entered into by the delegates of the States in Congress to
give a bounty of twenty dollars only for service in the continental
army.[131] The month of April arrived, and he had not received a man of
the new levies, except a few hundreds from Jersey, Pennsylvania, and
Virginia, while the few old regiments which remained, after the
dissolution of the army in January, were reduced to a handful of men,
the enemy being in great force, and making every preparation to seize
upon Philadelphia.
Nor did the allowance of these irregular bounties help the States, in
raising the old levies, as had been anticipated. They rather caused the
soldiers to set a high price upon themselves, and to hold back from
enlisting; while the second cause, to which I have alluded, as
embarrassing the Commander-in-chief, was a great hinderance to his
efforts to plan and carry out a campaign, having for its object the
general benefit of the whole Union.
This cause was the inability of many local authorities to comprehend the
necessity of such a campaign. General Washington was, at this period,
harassed by numerous applications to allow the troops, which had been
raised in the States for the service of the continent, to remain for the
defence of particular neighborhoods against incursions of the enemy.
Nothing, he said on one of these occasions, could exceed the pleasure
which he should feel, if he were able to protect every town and every
individual on the continent. But as this was a pleasure which he never
should realize, and as the continental forces were wanted to meet and
counteract the main designs of the enemy on the principal theatre of the
war, he could not consent to divide them and detach them to every point
where the enemy might possibly attempt an impression; "for that," he
added, "would be in the end to destroy ourselves and subjugate our
country."[132]
From the operation of these and other causes connected with the
political system of the country, the army with which Washington was
obliged to take the field, in the spring of 1777, did not exceed five
thousand seven hundred and thirty-eight effective men, exclusive of a
small body of cavalry and artillery.[133] The consequence was, a
necessary reliance upon militia, to a great extent, throughout that
summer. The battle of the Brandywine, fought with an effective force
of only eleven thousand men, including militia, against a thoroughly
disciplined army of fifteen thousand British and Hessian troops, and
fought for the city of Philadelphia as a stake, was lost on the 11th
of September.[134] The Congress broke up on the 18th. Sir William Howe
took possession of the city on the 26th; and on the 27th, the Congress
reassembled at Lancaster. In a few days, they removed to Yorktown,
where their sessions continued to be held for several months.
The position in which they found themselves, amid the dark clouds which
lowered around their cause, seems to have recalled to their recollection
the Articles of Confederation, which had lain slumbering upon their
table since the 8th of April. On that day, they had resolved that the
report should be taken into consideration on the following Monday, and
that two days in each week should be employed on the subject, until it
had been wholly discussed. When the Monday came, it was postponed; and
it was only after they had been driven from Philadelphia by the approach
of the enemy, that they seem to have fully realized the fact, that,
without a more perfect union and a more efficient government, the
country could not be saved. As soon as they had reassembled at Yorktown,
after the urgent business of the moment had been attended to, they
passed a resolve, on the 2d of October, that the Articles of
Confederation be taken into consideration the next day, at eleven
o'clock. The discussion did not actually commence, however, until the
7th of October; but from that day it was continued until the 17th of
November, when the Articles, as they afterwards went into operation,
were adopted for recommendation to the States, and a circular letter was
addressed to the several legislatures, submitting the plan of a
confederacy, and urging its adoption.
* * * * *
We are now approaching the period when the American people began to
perceive that something more was necessary to their safety and happiness
than the formation of State governments;--when they found, or were about
to find, that some digested system of national government was essential
to the great objects for which they were contending; and that, for the
formation of such a government, other arrangements than the varying
instructions of different colonies or states to a body of delegates
were indispensable. The previous illustrations, drawn from the civil and
military history of the country, have been employed to show the
character and operation of the revolutionary government, the end of
which is drawing near. For we have seen that the great purpose of that
government was to secure the independence of each of these separate
communities or states from the crown of Great Britain; that it was
instituted by political societies having no direct connection with each
other except the bond of a common danger and a common object; and that
it was formed by no other instrumentality, and possessed no other
agency, than a single body of delegates assembled in a congress. For
certain great purposes, and in order to accomplish certain objects of
common interest, a union of the people of the different States had
indeed taken place, bringing them together to act through their
representatives; but this union was now failing, from the want of
definite powers; from the unwillingness of the people of the country to
acquiesce in the exercise of the general revolutionary powers with which
it was impliedly clothed; and from the want of suitable civil machinery.
In truth, the revolutionary government was breaking down, through its
inherent defects, and the peculiar infelicity of its situation. Above
all, it was breaking down from the want of a civil executive to take the
lead in assuming and exercising the powers implied from the great
objects for which it was contending. Its legislative authority,
although defined in no written instruments or public charters, was
sufficient, under its implied general powers, to have enabled it to
issue decrees, directing the execution, by its own agents, of all
measures essential to the national safety. But this authority was never
exercised, partly because the States were unwilling to execute it, but
chiefly because no executive agency existed to represent the continental
power, and to enforce its decrees.
* * * * *
It is a singular circumstance, that, while the revolutionary government
was left to conduct the great affairs of the continent through the mere
instrumentality of a congress of delegates, and was thus failing for the
want of departments and powers, the States were engaged in applying
those great principles in the organization and construction of popular
governments, under which they may be formed with rapidity and ease, and
which are capable of the most varied adaptation to the circumstances and
wants of a free people.
The suppression of the royal authority throughout the colonies, by
virtue of the resolve of the Continental Congress passed on the 10th of
May, 1776, rendered necessary the formation of local governments,
capable at once of answering the ends of political society, and of
continuing without interruption the protection of law over property,
life, and public order. Fortunately, as we have seen, the previous
constitutions of all the colonies had accustomed the people, to a great
extent, to the business of government; and, when the recommendation of
the Continental Congress to the several colonies to adopt such
governments as would best conduce to their happiness and safety was made
immediately after the first effusion of blood, it was addressed to civil
societies, in which the people had, in different modes, been long
accustomed to witness and to exercise the functions of legislation, and
in all of which there were established forms of law, of judicature, and
of executive power.
The new political situation in which they now found themselves required,
in many of the colonies, but little departure from these ancient
institutions. The chief innovation necessary was, to bring into
practical working the authority of the people, in place of that of the
crown of England, as the source of all political power. The changes
requisite to effect this were of course to be made at once; the
materials for these changes existed everywhere, in the representative
institutions which had been long a part of the system of every colony
since the first settlement of the country. Thus, as we have seen, in all
the provincial, the proprietary, and the charter governments, the
freemen of the colony had been accustomed to be represented in the
government, in some form; and although those governments, with a few
exceptions, were under the direct or indirect restraint of the crown,
and could all be reached and controlled by the exercise of arbitrary
power, the practice of representation, through popular elections, was
everywhere known and familiar. The old constitutions of some of the
colonies had also been highly democratic, admitting an election of the
executive, as well as of the legislature, directly by the people;[135]
while, in others, where the executive was appointed by the crown, the
second or less numerous branch of the legislature had been elected by
the people, either directly, or indirectly through the popular assembly.
The foundations, therefore, for popular governments existed in all the
colonies, and furnished the means for substituting the new source of
political power, the will of the people, in the place of that of an
external sovereign.
But there were other materials, also, for the formation of regular and
balanced governments, with nearer approaches to perfection and with far
greater completeness than a mere democracy can afford to any people,
however familiar they may be with the exercise and the practice of
government. The people of these colonies had been so trained as to be
able to apply those principles in the construction and operation of
government which enable it to work freely, successfully, and wisely,
while resting on a popular basis. They were able to see, that the whole
of what is meant and understood by government is comprehended in the
existence and due operation of legislative, executive, and judicial
powers.[136] They had lived under political arrangements, in which these
powers had been distributed so as to keep them for the most part
distinct from each other, and so as to mark the proper limitations of
each. If, in some instances, the same individuals had exercised more
than one of these powers, the distinctions between the departments, and
the principles which ought to regulate such distinctions, had become
known. The people of the colonies, in general, therefore, saw that
nothing was so important, in constructing a government with popular
institutions, as to balance each of these departments against the
others, so as to leave to neither of them uncontrolled and irresponsible
power. In general, too, they understood, and had always been accustomed
to the application of that other fundamental principle, essential to a
well-regulated liberty, the division of the legislative power between
two separate chambers, having distinct origins and of distinct
constructions.[137]
But none of these ideas were applied, or were yet thought of being
applied, to the construction of a government for the United States; and
it is therefore at this period that we are to observe the slow progress
making, through disaster and trial, to those great discoveries which led
the way to the Constitution, and that we are to mark the first of those
failures by which the people of America learnt the bitter wisdom of
experience. For the fate of the revolutionary government presents the
first illustration in our history of the complete futility of a
federative union, whose operation as a government should consist merely
in agreeing upon measures in a general council, leaving the execution of
those measures to the separate members of the confederacy. But this
first illustration, we shall soon see, was not sufficient to establish
this truth in the convictions of the American people.
Another and a severer trial awaited them. They were not only to be
taught once more that a mere federative union was a rope of sand, but
they were also to be taught, that a government instituted upon this
principle for the purposes of a war, in which the separate members of
the confederacy had a common interest, would not answer the exigencies
of a country like this, in time of peace. They were to learn, by a
trying experience, that the vast concerns of peace are far more complex
than the concerns of war; that there were important functions of
government to be discharged upon this continent, which only national
power and national authority can accomplish, and that those functions
are essential, not only to the prosperity and happiness of this nation,
but to the continued existence of republican liberty within the States
themselves. They were to learn this through a state of things verging
upon anarchy; amidst the decay of public virtue; the conflict of
sectional interests; and the almost total dissolution of the bands by
which society is held together. In this state of things was to be at
last developed the fundamental idea on which the Constitution of the
United States now rests,--the political union of the _people_ of the
United States, as distinguished from a union of the _States_ of which
they are citizens.
We have, therefore, now reached the first stage in the constitutional
history of the country. What has thus far been stated comes to a single
point, the earliest great illustration of the radical defects in a
purely federative union. The next stage which succeeds presents the
second illustration of this important truth.
FOOTNOTES:
[103] Washington's Writings, III. 403.
[104] Writings of Washington, IV. 72.
[105] Writings of Washington, IV. 100.
[106] Letter to the President of Congress, Washington's Writings, IV.
110. September 24, 1776.
[107] Journals, II. 357.
[108] 500 acres to a colonel; 450 to a lieutenant-colonel; 400 to a
major; 300 to a captain; 200 to a lieutenant; and 150 to an ensign.
[109] Journals, II. 357. Subsequently, by a resolve passed November 12
(1776), the option was given to enlist for the war or for three years,
taking away the land bounty from those who enlisted for the latter
period only. Ibid. 454.
[110] Ibid.
[111] Journals, II. 403. October 8, 1776.
[112] Writings of Washington, IV. 173.
[113] Ibid. 183, 184.
[114] Writings of Washington, IV. 184.
[115] Writings, IV. 190.
[116] Ibid. 197.
[117] Ibid. 202.
[118] Ibid. 206.
[119] Ibid. 211.
[120] Ibid. 225.
[121] Writings, IV. 232.
[122] Journals, II. 475. A committee, at the head of which was Robert
Morris, was appointed to transmit this resolve to General Washington,
and in their letter they said: "We find by these resolves that your
Excellency's hands will be strengthened by very ample powers; and a new
reformation of the army seems to have its origin therein. Happy it is
for this country, that the general of their forces can safely be
intrusted with the most unlimited power, and neither personal security,
liberty, nor property be in the least degree endangered thereby." In his
reply, the General said to the committee: "Yours of the 31st of last
month inclosed to me sundry resolves of Congress, by which I find they
have done me the honor to intrust me with powers, in my military
capacity, of the highest nature, and almost unlimited in extent. Instead
of thinking myself freed from all _civil_ obligations, by this mark of
their confidence, I shall constantly bear in mind, that, as the sword
was the last resort for the preservation of our liberties, so it ought
to be the first thing laid aside when those liberties are firmly
established. I shall instantly set about the most necessary reforms in
the army; but it will not be in my power to make so great a progress as
if I had a little leisure time upon my hands." Writings of Washington,
IV. 257, 552.
[123] Writings of Washington, IV. 551.
[124] Writings of Washington, IV. 551.
[125] Journals, III. 35.
[126] "We have now to lament," said Robert Morris, in a private Letter
to General Washington, under date of February 27th, 1777 "the absence
from the public councils of America of Johnson, Jay, R. R. Livingston,
Duane, Deane, W. Livingston, Franklin, Dickinson, Harrison, Nelson,
Hooper, Rutledge, and others not less conspicuous, without any proper
appointments to fill their places, and this at the very time they are
most wanted, or would be so, if they had not very wisely supplied the
deficiency by delegating to your Excellency certain powers, that they
durst not have intrusted to any other man. But what is to become of
America, and its cause, if a constant fluctuation is to take place among
its counsellors, and at every change we find reason to view it with
regret?" Writings of Washington, IV. 340, note.
[127] Massachusetts, in December, 1776, renewed the credentials of John
Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry,
Francis Dana, and James Lovell, giving power to any three or more of
them, with the delegates from the other American States, to concert,
direct, and order such further measures as shall to them appear best
calculated for the establishment of right and liberty to the American
States, upon a basis permanent and secure against the power and art of
the British administration; for prosecuting the present war, concluding
peace, contracting alliances, establishing commerce, and guarding
against any future encroachments and machinations of their enemies; with
power to adjourn, &c. (Journals, IV. 14.) New Hampshire in the same
month sent William Whipple, Josiah Bartlett, and Mathew Thornton, making
any one of them a full delegation, without any other instructions than
"to represent" the State in the Continental Congress for one year, and
allowing only two of them to attend at a time. (Ibid. 41.) Virginia in
the same month appointed Mann Page, in the room of George Wythe, with
the same general instructions "to represent" the State. (Ibid. 42.)
North Carolina in the same month appointed William Hooper, Joseph Hewes,
and Thomas Burke, and invested them "with such powers as may make any
act done by them, or any of them, or consent given in the said Congress
in behalf of this State, obligatory upon every inhabitant thereof."
(Ibid. 37.) South Carolina chose Arthur Middleton, Thomas Hayward, Jr.,
and Henry Laurens, with power "to concert, agree to, and _execute_ every
measure which one or all of them should judge necessary for the defence,
security, or interest of this State in particular, and of America in
general." (Ibid. 53.) Connecticut sent Roger Sherman, Samuel Huntington,
Eliphalet Dyer, Oliver Wolcott, Richard Law, and William Williams, "to
consult, advise, and resolve upon measures necessary to be taken and
pursued for the defence, security, and preservation of the rights and
liberties of the said United States, and for their common safety"; but
requiring them "of such their proceedings and resolves to transmit
authentic copies from time to time to the General Assembly of this
state." (Ibid. 5.) Of the other states, Pennsylvania, Rhode Island, New
York, New Jersey, Maryland, and Georgia, which renewed their delegations
somewhat later in the year, instructed them simply "to represent" the
state in the Continental Congress; and Delaware empowered its delegates,
on behalf of the state, "to concert, agree to, and execute any measure
which they, together with a majority of the Continental Congress, should
judge necessary for the defense, security, interest, and welfare of that
State in particular, and America in general." (Ibid. 64, 315, 171, 169,
395, 54, 403, 86.)
[128] This was Mr. Abraham Clark, one of the signers of the Declaration
of Independence. Mr. Sparks has preserved a curious letter written by
this gentleman on the subject. Writings of Washington, IV. 298.
[129] The whole of this alarm evidently arose from the use of the words
"oath of allegiance" in General Washington's proclamation. Probably this
phrase was used by him as a convenient description of the obligation
which he intended to exact. He did not use it as a jurist, but as a
general and a statesman. In a letter written by him on the 5th of
February (1777) to the President of Congress, desiring that body to urge
the States to adopt an oath of fidelity, he said: "From the first
institution of civil government, it has been the national policy of
every precedent state to endeavor to engage its members to the discharge
of their public duty by the obligation of some oath"; and he then
observes, with his characteristic wisdom, that "an oath is the only
substitute that can be adopted to supply the _defect of principle_." He
advised that every State should fix upon some oath or affirmation of
allegiance, to be tendered to all the inhabitants without exception, and
to outlaw those that refused it. (Writings, IV. 311, 312.) Afterwards,
when the Legislative Council of New Jersey--where some of the people had
refused to take the oath required by his proclamation--applied to him to
explain the nature of the oath, and to be furnished with a copy of it,
that they might know whether it was the oath prescribed by the General
Assembly of that State, he informed them that he had prescribed no form,
and had reverted to none prescribed by them; that his instructions to
the brigadiers who attended to that duty were, to insist on nothing more
than an obligation in _no manner to injure the States_; and that he had
left the form to his subordinates; but that if he had known of any form
adapted to the circumstances of the inhabitants, he would certainly have
ordered it. (Ibid. 319, note.) This explanation makes it quite certain,
that what General Washington called in his proclamation an oath of
allegiance was merely a military exaction of an obligation in favor of a
belligerent power against the enemy; and his advice on the subject of a
general civil oath of allegiance, to be exacted by the States, shows
that he understood the niceties of the subject as well as any casuist in
or out of Congress. This topic may be dismissed by reverting here to the
fact, that in February, 1778, Congress prescribed an oath or
affirmation, to be taken by the officers of the army, and all others
holding office under Congress, which was simply a renunciation of
allegiance to the King of Great Britain, an acknowledgment of the
independence of the United States, and a promise to support, maintain,
and defend them against King George III. and his successors, and to
serve the United States in the office mentioned with fidelity, and the
best skill and understanding of the party taking the oath. Journals, IV.
49.
[130] Ante, p. 100.
[131] Letter to General Knox, February 11, 1777. Writings, IV. 316.
[132] Letter to Governor Trumbull, May 11, 1777. Writings, IV. 413. See
also Letter to Major-General Stephen, May 24, 1777. Ibid. 431.
[133] Marshall's Life of Washington, III. 102.
[134] The exact numbers of the troops on both sides, in this battle, are
not known. Sir William Howe estimated the American force at 15,000,
including militia; and this number is given in the Annual Register. But
the effective force of the American army was always, at this period of
the war, considerably less than the total number; and Chief Justice
Marshall states it to have been, on this occasion, 11,000, including
militia. The Annual Register gives the number of the royal army brought
into action as 15,000. Marshall supposes it to have been 18,000, when
they landed on the shores of the Chesapeake. Marshall's Life of
Washington, III. 140, 141. Annual Register for 1777, XX. 127.
[135] Connecticut and Rhode Island.
[136] See John Adams's letter to R. H. Lee.
[137] Three of the colonies, namely, New Hampshire, South Carolina, and
Virginia, proceeded to form constitutions of government before the
Declaration of Independence was adopted, under a special recommendation
given to each of them by Congress, in the latter part of the year 1775,
addressed to the provincial convention, advising them "to call a full
and free representation of the people, to establish such a form of
government as in their judgment will best promote the happiness of the
people, and most effectually secure good order in the province during
the continuance of the present dispute between Great Britain and the
colonies." (Journals, I. 231, 235, 279.) In New Hampshire, this
suggestion was carried out in January, 1776, by the representatives of
the people, who had first met as a Provincial Congress of deputies from
the towns, and then assumed the name and authority of a "house of
representatives," or "assembly" of the Colony; in which capacity they
proceeded to elect twelve persons from the several counties, to form a
distinct branch of the legislature, as a council. The council were to
elect their own presiding officer. All acts and resolves, to be valid,
were required to pass both branches; all public officers, except clerks
of courts, were to be appointed by the two houses, and all money bills
were to originate in the popular branch. In case the dispute with Great
Britain should continue longer than the year 1776, and the general
Congress should not give other instructions, it was provided that the
council should be chosen by the people of each county, in a mode to be
prescribed by the council and house. This form of government continued
through the Revolution, and until the year 1790, when a new constitution
was formed. (Pitkin's History of the United States, II. 294.) In South
Carolina, the Provincial Congress likewise resolved itself a "general
assembly," and elected a legislative council, from their own body. By
these two bodies, acting jointly, an executive, styled a president, a
commander-in-chief, and a vice-president, was chosen. The legislative
authority was vested in the president and the two houses. The judiciary
were elected by the two houses and commissioned by the president, and
were to hold their offices during good behavior, subject to removal on
the address of both houses. This form of government remained until June,
1790, when a new constitution was formed by a convention. On the 15th of
May, 1776, the Provincial Convention of Virginia proceeded to prepare a
declaration of rights and a constitution. The latter declared that the
legislative, executive, and judiciary departments ought to be distinct
and separate, and divided the legislative department into two branches,
the house of delegates and the senate, to be called "the General
Assembly of Virginia." The members of the house of delegates were chosen
from each county, and one from the city of Williamsburg and one from the
borough of Norfolk. The senate consisted of twenty-four members, chosen
from as many districts. A governor and council of state were chosen
annually by joint ballot of both houses. The legislature appointed the
judges, who were commissioned by the governor, and held their offices
during good behavior. Massachusetts was one of the colonies whose
situation rendered it necessary to defer the formation of a constitution
for several years. The transition in that colony from the government of
the King to a government of the people took place in the latter part of
the year 1774 and the beginning of 1775. The occurrences which led the
House of Representatives to resolve themselves into a Provincial
Congress have been stated in the text of a previous chapter (ante, p.
26). This body, which assumed the control of the affairs of the colony
in October, 1774, first assembled at Cambridge, where they continued in
session until the 10th of December, and then dissolved themselves,
having first appointed a _Committee of Safety_ to manage the public
concerns, until a new Congress should be assembled. On the 1st of
February, 1775, a new Provincial Congress met at Cambridge, adjourned to
Concord, and thence to Watertown, and were dissolved on the 23d of May.
On the 16th of May, they wrote to the Continental Congress, requesting
their advice on "taking up and exercising the powers of civil
government." In their letter they said, "As the sword should in all free
states be subservient to the civil powers, and as it is the duty of the
magistrate to support it for the people's necessary defence, we tremble
at having an army, although consisting of our own countrymen,
established here, without a civil power to provide for and control
them." On the 9th of June, the Continental Congress passed a resolve,
recommending the election of a new General Assembly, under the
directions of the Provincial Congress, and that the Assembly, when
chosen, should exercise the powers of government, until a governor of
the King's appointment would consent to govern the Colony according to
its charter. (Journals, I. 115.) Meanwhile, a third Provincial Congress
met at Watertown, on the 31st of May, and sat until the 19th. The new
General Assembly of the Province, called "the General Court," after its
ancient usage, met in the mode provided by the charter, and elected a
council. These two branches continued to administer the government, as
nearly in the spirit of the charter as might be, without a governor,
until 1780, when a convention was called and a constitution framed,
similar in all its main features to the present constitution of the
State. The constitutions of the other States were formed under the
general recommendation of the resolve of Congress of May 10th, 1776,
addressed to all the colonies, which contemplated the formation of
permanent governments, and dissolved the allegiance of the people to the
crown of Great Britain. The constitutions of New Jersey, Maryland,
Delaware, and North Carolina were formed in 1776, and that of New York
in April, 1777; all having three branches, the legislative, the
executive, and the judiciary, and all having a legislature consisting of
two houses. The constitution of Georgia was formed in 1789, after the
same general model. That of Pennsylvania was formed in 1776, with a
legislature consisting of a single branch, but with the like division of
the legislative, executive, and judicial departments.
CHAPTER V.
NOVEMBER, 1777--MARCH, 1781.
ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN
TERRITORY.--FIRST POLITICAL UNION OF THE STATES.
We have now to examine the period which intervened between the
recommendation of the Confederation by Congress, in November, 1777, and
its final adoption by all the States, in March, 1781;--a period of three
years and a half. The causes which protracted the final assent of the
States to the new government, and the mode in which the various
objections were at length obviated, are among the most important topics
in our constitutional history. But, before they are examined, the order
of events by which the Confederation finally became obligatory upon all
the States should here be stated.
The last clause of the Articles of Confederation directed that they
should be submitted to the legislatures of all the States to be
considered; and if approved of by them, they were advised to authorize
their delegates to ratify the instrument in Congress; upon which
ratification, it was to become binding and conclusive. On the 20th of
June, 1778, a call was made in Congress for the report of the
delegations on the action of their several States, and on the 26th of
the same month a form of ratification was adopted for signature. On the
9th of July, the ratification was signed by the delegates of eight
States; New Hampshire, Massachusetts, Rhode Island, Connecticut, New
York, Pennsylvania, Virginia, and South Carolina. North Carolina
ratified the Articles on the 21st of July; Georgia on the 24th; New
Jersey on the 26th of November; Delaware on the 5th of May, 1779;
Maryland on the 1st of March, 1781. On the 2d of March, 1781, Congress
met under the Confederation.
* * * * *
Undoubtedly one of the causes which deferred the full adoption of the
Confederation to so late a period after it was proposed, was the absence
from Congress of many of the most important and able men, whose
attention had hitherto been devoted to the affairs of the continent, but
who began to be occupied with local affairs, soon after the
extraordinary powers were conferred upon General Washington. In October,
1777, Hancock left the chair of Congress, for an absence of two months;
and the votes on a resolution of thanks to him, for his services as
presiding officer, show a great paucity of talent in Congress at that
moment.[138] Twenty-two members only were present, and of these the
only names much known to fame, at that time or since, were those of
Samuel Adams, John Adams, and Elbridge Gerry of Massachusetts, the two
Lees of Virginia, Hayward and Laurens of South Carolina, and Samuel
Chase of Maryland. Franklin, Arthur Lee, and Silas Deane were then in
France. Patrick Henry was Governor of Virginia. Mr. Jefferson was in the
legislature of Virginia, having left Congress in September, in order, as
he has himself recorded, to reform the legislation of the State, which,
under the royal government, was, he says, full of vicious defects.[139]
Mr. Madison was also in the legislature of his native State, a young man
of great promise, but unknown at that time as a continental statesman.
He entered Congress in March, 1780.
In the year 1778, when the delegations were called upon for reports on
the action of their several States upon the Confederation, and when the
first objections to the Articles were to be encountered, Hancock had
returned to Congress. Samuel Adams and Elbridge Gerry were among his
colleagues from Massachusetts. Mr. John Adams was in Europe, as
Commissioner of the United States to the Court of France. Dr. Franklin
was still abroad. Richard Henry Lee of Virginia, Mr. Laurens and Mr.
Hayward of South Carolina, Roger Sherman, Samuel Huntington, and Oliver
Wolcott of Connecticut, and Robert Morris of Pennsylvania, were
present. The rest of the members, with one brilliant exception, were not
men of great distinction, influence, or capacity. That exception was
Gouverneur Morris, who came into Congress in January of this year, with
a somewhat remarkable youthful reputation, acquired in the public
councils of New York.
When this Congress is compared with that of the year 1776, and it is
remembered that the Declaration of Independence bears the names of John
Adams and Robert Treat Paine of Massachusetts, Francis Hopkinson of New
Jersey, Benjamin Rush and Dr. Franklin of Pennsylvania, Cæsar Rodney of
Delaware, Samuel Chase of Maryland, George Wythe, Thomas Jefferson, and
Benjamin Harrison of Virginia, William Hooper of North Carolina, and
Edward Rutledge and Arthur Middleton of South Carolina,--none of whom
were now present,--we perceive at once a striking difference in the two
bodies. This difference was not unobserved by those who were then deeply
interested in watching the course of public affairs. More than once it
filled Washington with dark forebodings;[140] and in the early part of
the year 1778, it had attracted the notice of Hamilton, whose vigilant
comprehension surveyed the whole field of public affairs, and detected
the causes of every danger that threatened the health of the body
politic.[141]
The objections made by the legislatures of several of the States to the
Articles of Confederation were found, when examined, to consist almost
entirely of propositions for mere verbal amendments, chiefly for the
purpose of rendering the instrument more clear. All of these amendments
were rejected. Some of the States objected to the rule for apportioning
the taxes and forces to be raised by the States for the service of the
Union; but Congress rejected every proposition to alter it, as it was
believed to be impossible that any other rule should be agreed upon.
But there was an objection made by the State of New Jersey, which should
be particularly noticed here, because it foreshadowed the great idea
which the Constitution of the United States afterwards embodied. This
objection was, that the Articles of Confederation contained no provision
by which the foreign trade of the country would be placed under the
regulation of Congress. The sixth of the Articles of Confederation
declared, that no State should levy any imposts or duties, which might
interfere with any stipulations entered into by the United States with
any foreign power pursuant to the treaties already proposed to the
courts of France and Spain; while the ninth article declared that no
treaty of commerce should be made by the United States, whereby the
legislative power of the respective States should be restrained from
imposing such imposts and duties on foreigners as their own people were
subjected to, or from prohibiting the exportation or importation of any
species of goods or commodities whatsoever. The effect of these
provisions was simply to restrain the States from laying imposts which
would interfere with the then proposed treaties; in all other respects,
the foreign trade of each State was left to be regulated by State
legislation.
The legislature of New Jersey, in a very able memorial, laid before
Congress on the 25th of June, 1778, declared that the sole and exclusive
power of regulating the trade of the United States with foreign nations
ought to be clearly vested in the Congress, and that the revenue arising
from duties and customs ought to be appropriated to the building and
support of a navy for the protection of trade and the defence of the
coasts, and to other public and general purposes, for the common benefit
of the States. They suggested that a great security would be derived to
the Union, from such an establishment of a common and mutual
interest.[142] But this suggestion was both premature and tardy. It was
premature, because the States had not yet learned that their control
over foreign commerce must be surrendered, if they would avoid the evils
of perpetual conflict with each other; and it came too late, because the
Articles of Confederation were practically incapable of amendment, at
the period when the suggestion was made.[143]
* * * * *
The great obstacle, however, to the adoption of the Confederation, which
delayed the assent of several of the smaller States for so long a
period, was the claim of some of the larger States to the vacant lands
lying within what they considered their rightful boundaries. The
boundaries of the great States, as fixed by their charters derived from
the crown of England, extended, in terms, "to the South Sea," and each
of these States, as successor, by the Revolution, to the crown, with
regard to territorial sovereignty, claimed to own both the jurisdiction
and the property of all the crown lands within its limits. This claim
was strenuously resisted by Rhode Island, Delaware, New Jersey, and
Maryland. They insisted that Congress ought to have the right to fix the
boundaries of the States whose charters stretched to such an indefinite
extent into the Western wilderness, and that the unoccupied lands ought
to be the property of the whole Union; since, if the independence of the
country should be finally established, those lands would have been
conquered from the crown of England by the common blood and treasure of
all the States. The effect of a tacit recognition of the claims of the
great States upon the welfare of such a State as Maryland, through the
absence from the Articles of Confederation of any provision on the
subject, was strikingly exhibited, by its legislature, in certain
instructions to their delegates in Congress, which were laid before that
body on the 21st of May, 1779. They pointed out two consequences likely
to result from a confirmation of the claim which Virginia had set up to
an extensive and fertile country; the one would be, they said, directly
injurious to Maryland, while the other would be inconsistent with the
letter and spirit of the proposed Confederation. They supposed, on the
one hand, that a sale by Virginia of only a small proportion of these
lands would draw into her treasury vast sums of money, enabling her to
lessen her taxes, and thereby to drain the less wealthy neighboring
State of its most useful inhabitants, which would cause it to sink, in
wealth and consequence, in the scale of the confederated States. On the
other hand, they suggested that Virginia might, and probably would, be
obliged to divide its territory, and to erect a new State, under the
auspices and direction of the elder, from whom it would receive its form
of government, to whom it would be bound by some alliance, and by whose
counsels it would be influenced. They declared that, if this were to
take place, it would be inconsistent with the letter and spirit of the
Confederation already proposed; that, if it were to result in the
establishment of a sub-confederacy, an _imperium in imperio_, the State
possessed of this extensive dominion must then either submit to all the
inconveniences of an overgrown and unwieldy government, or suffer the
authority of Congress to interpose at a future time, and lop off a part
of its territory to be erected into a new and free state, and admitted
into a confederation on such conditions as should be settled by nine
States. If, they asked, it should be necessary for the happiness and
tranquillity of a State thus overgrown, that Congress should, at some
future time, interfere and divide its territory, why should the claim to
that territory be now made and insisted upon? Policy and justice, they
urged, alike required, that a country,--unsettled at the commencement of
the war, claimed by the British crown and ceded to it by the treaty of
Paris,--if wrested from the common enemy by the blood and treasure of
the thirteen States, should be considered as a common property, subject
to be parcelled out by Congress into free, convenient, and independent
governments, in such manner and at such times as their wisdom might
thereafter direct. Coolly and dispassionately considering the subject,
weighing probable inconveniences and hardships against the sacrifice of
just and essential rights, they then instructed their delegates to
withhold the assent of Maryland to the Confederation, until an article
or articles could be obtained in conformity with these views.[144]
Against this proposition, the State of Virginia, which had already
ratified the Articles of Confederation, so remonstrated, that there
appeared to be no prospect of reconciling the difficulty. At this
juncture the State of New York came forward, and by an act of its
legislature, passed on the 19th of February, 1780, authorized its
delegates in Congress to limit the western boundaries of the State, and
ceded a portion of its public lands for the use and benefit of such of
the United States as should become members of the federal alliance. The
motives upon which this concession was expressly made had reference to
the formation of the Union, by removing, as far as depended upon the
State of New York, the impediment which had so long prevented it.[145]
After they had received official notice of this act, by a report made on
the 6th of September, 1780, Congress pressed upon the other States,
similarly situated, the policy of a liberal surrender of a portion of
their territorial claims, as they could not be preserved entire without
endangering the stability of the general confederacy;--reminding them
how indispensably necessary it was to establish the Federal Union on a
fixed and permanent basis, and on principles acceptable to all its
respective members,--how essential it was to public credit and
confidence, to the support of the army, to the vigor of the national
councils, to tranquillity at home, to reputation abroad, and to the very
existence of the people of America as a free, sovereign, and independent
people. At the same time, they earnestly requested the legislature of
the State of Maryland to accede to the Confederation.[146]
That State was not without examples of patriotic confidence among her
smaller sister States. As early as the 20th of November, 1778, New
Jersey had led the way to a generous trust on the part of the States
which still remained out of the Union. She declared that the Articles of
Confederation were in divers respects unequal and disadvantageous to
her, and that her objections were of essential moment to the welfare and
happiness of her people; yet, convinced of the present necessity of
acceding to the confederacy proposed, feeling that every separate and
detached interest ought to be postponed to the general good of the
Union, and firmly believing that the candor and justice of the several
States would, in due time, remove the inequality of which she
complained, she authorized her delegates to accede to the
Confederation.[147]
Delaware followed with not unequal steps. On the 1st of February, 1779,
she declared that, although she was justly entitled to a right, in
common with the other members of the Union, to that extensive tract of
country lying to the westward of the frontiers of the United States,
gained by the blood and treasure of all, and therefore proper to become
a common estate, to be granted out on terms beneficial to all; yet, for
the same reasons, and from the same motives with those announced by New
Jersey, and with a like faith in the sense of justice of her great
confederates, she ratified the Articles of Confederation.[148]
These examples were not without influence upon the councils of
patriotic Maryland. On the 30th of January, 1781, her legislature passed
an act, the preamble of which commences with these memorable words:
"Whereas it hath been said, that the common enemy is encouraged, by this
State not acceding to the Confederation, to hope that the union of the
sister States may be dissolved; and they therefore prosecute the war in
expectation of an event so disgraceful to America; and our friends and
illustrious ally are impressed with an idea, that the common cause would
be promoted by our formally acceding to the Confederation: This General
Assembly, conscious that this State hath, from the commencement of the
war, strenuously exerted herself in the common cause, and fully
satisfied that, if no formal confederation were to take place, it is the
fixed determination of this State to continue her exertions to the
utmost, agreeable to the faith pledged in the Union;--from an earnest
desire to conciliate the affection of the sister States, to convince all
the world of our unalterable resolution to support the independence of
the United States, and the alliance with his most Christian Majesty, and
to destroy for ever any apprehension of our friends, or hope in our
enemies, of this State being again united to Great Britain;--Be it
enacted," &c. The act then proceeded to adopt and ratify the Articles of
Confederation, relying on the justice of the other States to secure the
interests of the whole in the unoccupied Western territory.[149]
As soon as this act of Maryland was laid before Congress, the joyful
news was announced to the country, that the Union of the States was
consummated under the written instrument, which had been so long
projected. The same month which saw the completion of this Union
witnessed a cession by Virginia to the United States of all her claims
to lands northwest of the river Ohio; but the cession was not finally
completed and accepted until the month of March, 1784. This vast
territory, now the seat of prosperous and powerful States, came into the
possession of the United States, under a provision made by Congress,
that such lands should be disposed of for the common benefit of the
United States, and should be settled and formed into distinct republican
States, to become members of the Federal Union, with the same rights of
sovereignty, freedom, and independence as the other States.
The historian who may, in any generation, record these noble acts of
patriotism and concession, should pause and contemplate the magnitude of
the event with which they were connected. He should pause, to render
honor to the illustrious deeds of that great community, which first
generously withdrew the impediment of its territorial claims; and to the
no less gallant confidence of those smaller States, which trusted to the
future for the final and complete removal of the inequality of which
they complained. He should render honor to the State of New York, for
the surrender of a territory to which she believed her legal title to be
complete; a title which nothing but the paramount equity of the claims
of the whole Confederacy ought to have overcome. That equity she
acknowledged. She threw aside her charters and her title-deeds; she
ceased to use the language of royal grants, and discarded the principle
of succession. She came forth from among her parchments into the forum
of conscience, in presence of the whole American people;
and--recognizing the justice of their claim to territories gained by
their common efforts--to secure the inestimable blessings of union, for
their good and for her own, she submitted to the national will the
determination of her western boundaries, and devoted to the national
benefit her vast claims to unoccupied territories.
Equal honor should be rendered to New Jersey, to Delaware, and to
Maryland. The two former, without waiting for the action of a single
State within whose reputed limits these public domains were situate,
trusted wholly to a future sense of justice, and ratified the Union in
the confidence that justice would be done. The latter waited; but only
until she saw that the common enemy was encouraged, and that friends
were disheartened, by her reserve. Seeing this, she hesitated no longer,
but completed the union of the States before Virginia had made the
cession, which afterwards so nobly justified the confidence that had
been placed in her.[150]
The student of American constitutional history, therefore, cannot fail
to see, that the adoption of the first written constitution was
accomplished through great and magnanimous sacrifices. The very
foundations of the structure of government since raised rest upon
splendid concessions for the common weal, made, it is true, under the
stern pressure of war, but made from the noblest motives of patriotism.
These concessions evince the progress which the people of the United
States were then making towards both a national character and a national
feeling. They show that, while there were causes which tended to keep
the States apart,--the formation of State constitutions, the conflicting
interests growing out of the inequalities of these different
communities, and the previous want of a national legislative
power,--there were still other causes at work, which tended to draw
together the apparently discordant elements, and to create a union in
which should be bound together, as one nation, the populations which had
hitherto known only institutions of a local character. The time was
indeed not come, when these latter tendencies could entirely overcome
the former. It was not until the trials of peace had tested the strength
and efficiency of a system formed under the trials of war,--when another
and a severer conflict between national and local interests was to shake
the republic to its centre,--that a national government could be formed,
adequate to all the exigencies of both. Still, the year 1781 saw the
establishment of the Confederation, caused by the necessities of
military defence against an invading enemy. But it was accomplished
only through the sacrifice of great claims; and the fact that it was
accomplished, and that it led the way to our present Constitution,
proves at once the wisdom and the patriotism of those who labored for
it.
The great office of the Confederation, in our political history, will
be a proper topic for consideration, after the analysis of its
provisions. But we should not omit to observe here, that, when the
union of the States was thus secured, the motives on which it was
formed, and the concessions by which it was accompanied and followed,
created a vast obstacle to any future dissolution. The immediate
object of each State was to obtain its own independence of the crown
of Great Britain, through the united, and therefore more powerful,
action of all the States. But, in order to effect such a union, that
immense territory, over which, in the language of Maryland, "free,
convenient, and independent governments" were afterwards to be formed,
was to be ceded in advance, or to be impliedly promised to be ceded,
to the use and benefit of the whole confederacy. A confederacy of
states, which had become possessed of such a common property, was thus
bound together by an interest, the magnitude and force of which cannot
now be easily estimated. The Union might incur fresh dangers of
dissolution, after the war had ceased; its frame of government and its
legislative power might prove wholly inadequate to the national wants
in time of peace; the public faith might be prostrated, and the
national arm enfeebled;--still, while the Confederacy stood as the
great trustee of property large enough for the accommodation of an
empire, a security existed against its total destruction. No State
could withdraw from the Confederation, without forfeiting its interest
in this grand public domain; and no human wisdom could devise a
satisfactory distribution of property ceded as a common fund for the
common benefit of sovereign States, without any fixed ratio of
interest in the respective beneficiaries, and without any clear power
in the government of the Confederation to deal with the trust
itself.[151]
FOOTNOTES:
[138] Hancock retired on the 31st of October, for a short absence, after
an unremitted service of two years and five months in the chair. A vote
of thanks was moved, as soon as he had concluded his address; but before
the question was put, it was moved "to resolve as the opinion of
Congress, that it is improper to thank any president for the discharge
of the duties of that office"; and it is a curious fact, that on this
motion the States were equally divided. The previous motion was then
put, and five States voted in the affirmative, three in the negative,
and the delegation of one State was divided. Journals, III. 465-467.
[139] Writings of Jefferson, I. 29.
[140] Writings of Washington, V. 326, 327, 350.
[141] "America once had a representation that would do honor to any age
or nation. The present falling off is very alarming and dangerous. What
is the cause? and How is it to be remedied? are questions that the
welfare of these States requires should be well attended to. The great
men who composed our first council,--are they dead, have they deserted
the cause, or what has become of them? Very few are dead, and still
fewer have deserted the cause: they are all, except the few who still
remain in Congress, either in the field, or in the civil offices of
their respective States; far the greater part are engaged in the latter.
The only remedy, then, is to take them out of these employments, and
return them to the place where their presence is infinitely more
important. Each State, in order to promote its own internal government
and prosperity, has selected its best members to fill the offices within
itself, and conduct its own affairs. Men have been fonder of the
emoluments and conveniences of being employed at home; and local
attachment, falsely operating, has made them more provident for the
particular interests of the States to which they belonged, than for the
common interests of the Confederacy. This is a most pernicious mistake,
and must be corrected. However important it is to give form and
efficiency to your interior constitutions and police, it is infinitely
more important to have a wise general council; otherwise, a failure of
the measures of the Union will overturn all your labors for the
advancement of your particular good, and ruin the common cause. You
should not beggar the councils of the United States to enrich the
administration of the several members. Realize to yourself the
consequences of having a Congress despised at home and abroad. How can
the common force be exerted, if the power of collecting it be put in
weak, foolish, and unsteady hands? How can we hope for success in our
European negotiations, if the nations of Europe have no confidence in
the wisdom and vigor of the great continental government? This is the
object on which their eyes are fixed; hence it is, America will derive
its importance or insignificance in their estimation." Letter by
Hamilton to George Clinton, written from the head-quarters of the army,
February 13, 1778. Writings of Washington, V. 508.
[142] Journals, IV. 269, 270. This wise and well-considered document
contained many other very important suggestions; among which was that of
an oath, test, or declaration to be taken by the delegates in Congress,
previous to their admission to their seats. "It is indeed to be
presumed," said the memorial, "that the respective States will be
careful that the delegates they send to assist in managing the general
interests of the Union, take the oaths to the government from which they
derive their authority: but as the United States, collectively
considered, have interests as well as each particular State, we are of
opinion, that some test or obligation, binding upon each delegate while
he continues in the trust, to consult and pursue the former as well as
the latter, and particularly to assent to no vote or proceeding which
may violate the general confederation is necessary. The laws and usages
of all civilized nations evince the propriety of an oath on such
occasions, and the more solemn and important the deposit, the more
strong and explicit ought the obligation to be."
[143] Three States only voted in favor of adopting any of the
suggestions made by New Jersey: six voted against them, and one was
divided. Journals, IV. 272.
[144] Secret Journals, I. 433.
[145] Secret Journals, I. 440.
[146] Ibid. 442.
[147] Secret Journals, I. 421.
[148] Ibid. 424.
[149] Secret Journals, I. 445.
[150] After the Confederation had thus been formed, by subsequent
cessions of their claims by the other States, to use the language of Mr.
Justice Story, "this great source of national dissension was at last
dried up."
[151] One of the great inducements to the adoption of the Constitution
of the United States was to give the general government adequate
constitutional power to dispose of the Western territory and to form new
States out of it. Congress, under the Confederation, had no express
authority to do this, although they proceeded both to dispose of the
lands and to erect new States, by the Ordinance of 1787. See The
Federalist, No. 38, 42, 43. Story's Commentaries on the Constitution,
III. 184-190, 1st edition.
CHAPTER VI.
NATURE AND POWERS OF THE CONFEDERATION.
The nature of the government established by the Articles of
Confederation can be understood only by an analysis of their provisions.
For this purpose, the instrument must here be examined with reference to
three principal topics: first, the union which it established between
the different members of the Confederacy; second, the form of the
government which it created; and third, the powers which it conferred,
or omitted to confer, upon that government.
I. The parties to this instrument were free, sovereign, and independent
political communities,--each possessing within itself all the powers of
legislation and government, over its own citizens, which any political
society can possess. But, by this instrument, these several States
became united together for certain purposes. The instrument was styled,
"Articles of Confederation and Perpetual Union between the States," and
the political body thus formed was entitled "The United States of
America." The Articles declared--as would, indeed, be implied, in such
circumstances, without any express declaration--that each State
retained its sovereignty, freedom, and independence, and every power,
jurisdiction, and right not expressly delegated by the instrument itself
to the United States in Congress assembled. The nature and objects of
this union were described as a firm league of friendship between the
States, for their common defence, the security of their liberties, and
their mutual and general welfare; and the parties bound themselves to
assist each other against all force offered to or attacks made upon
them, or any of them, on account of religion, sovereignty, trade, or
under any pretence whatever.
It was also provided, that the free inhabitants of each State should be
entitled to all the privileges of free citizens in the several
States;[152] that there should be an open intercourse and commerce
between the different States; that fugitives from justice from one State
to another should be delivered up; and that full faith and credit should
be given in each State to the records, acts, and judicial proceedings of
every other State.[153]
II. The government established by the Articles of Confederation
consisted of a single representative body, called a General Congress.
In this body were vested all the powers, executive, legislative, and
judicial, granted to the United States. The members of it were to be
chosen by the States, in such manner as the legislature of each State
might determine; no State to be represented by more than seven
delegates, or by less than two. No delegate was eligible for more than
three years in a period of six; and no delegate could hold any office of
emolument under the United States. Each State was to maintain its own
delegates, and in the determination of questions, the voting was to be
by States, each State having one vote.
III. It should be remembered, that the objects and purposes of the
Confederation related chiefly to the defence of the States against
external attacks; and it was, therefore, as it purported to be, a league
for mutual defence and protection, through the combined powers of the
whole, operating in certain forms and under certain restrictions. For
the manner in which this new authority was to be exercised, we are to
look at the powers conferred upon "the United States in Congress
assembled." These powers related to external and to internal affairs.
With regard to the external relations of the country, Congress was
invested with the sole and exclusive right of determining on peace and
war, unless in case of an invasion of a State by enemies, or an imminent
danger of invasion by Indians; of sending and receiving ambassadors; of
entering into treaties and alliances, under the limitation that no
treaty of commerce could be made, which would have the effect to
restrain the legislature of any State from imposing such imposts and
duties on foreigners as their own people were subjected to, or which
would operate to prohibit the exportation or importation of any
commodity whatever. Congress was also invested with power to deal with
all captures and prizes made by the land or naval forces of the United
States; to grant letters of marque and reprisal in times of peace; and
to establish courts for the trial of piracies and felonies committed on
the high seas, and for determining appeals in cases of capture.
With regard to internal affairs, Congress was invested with power to
decide, in the last resort, on appeal, all disputes between two or more
States, concerning boundary, jurisdiction, or any other cause; and also
all controversies concerning land-titles, where the parties claimed
under different grants of two or more States before the settlement of
their jurisdiction; but no State was to be deprived of territory for the
benefit of the United States. Congress was also invested with the sole
and exclusive right and power of regulating the alloy and value of coin
struck by their authority, or by that of any of the United States; of
fixing the standard of weights and measures throughout the United
States; of regulating the trade and managing all affairs with the
Indians, who were not members of any State, provided that the
legislative authority of any State, within its own limits, should not be
infringed or violated; of establishing and regulating post-offices from
one State to another, and exacting postage to defray the expenses; of
appointing all officers of the land forces in the service of the United
States, and of making rules for the government and regulation of the
land and naval forces, and directing their operations.
Congress was also invested with power to appoint a "committee of the
States," to sit in the recess of Congress, to consist of one delegate
from each State, and other committees and civil officers, to manage the
general affairs under their direction; to appoint one of their number to
preside, but authorizing no person to serve in the office of president
more than one year in a term of three years; to ascertain and
appropriate the necessary sums for the public service; to borrow money
and emit bills on the credit of the United States; to build and equip a
navy; and to agree upon the number of land forces and make requisitions
upon each State for its quota, in proportion to the numbers of white
inhabitants in such State. The legislature of each State was to appoint
the regimental officers, enlist the men, and clothe, arm, and equip
them, at the expense of the United States.
Such were the powers conferred upon Congress by the Articles of
Confederation. But the restrictions imposed, in the same instrument,
greatly qualified and weakened, and in fact almost rendered nugatory,
the greater part of them. It was expressly provided, that Congress
should never engage in a war; nor grant letters of marque or reprisal in
time of peace; nor enter into any treaties or alliances; nor coin money
or regulate its value; nor ascertain the sums of money necessary for the
public purposes; nor emit bills; nor borrow money on the credit of the
United States; nor appropriate money; nor agree upon the number of
vessels for the navy, or the number of land or sea forces to be raised;
nor appoint a commander-in-chief of the army or navy;--unless nine
States should assent to the same. The Committee of the States authorized
to sit during the recess of Congress could not do any of these things,
for the assent of nine States could not be delegated.
The revenues of the country were left by the Articles of Confederation
wholly in the control of the separate States. It was provided, that all
charges of war, and all other expenses for the common defence or general
welfare, should be defrayed out of a common treasury; but this treasury
was to be supplied, not by taxes, duties, or imposts, levied by or under
the authority of Congress, but by taxes to be laid and levied by the
legislatures of the several States, within such time as might be fixed
by Congress. The amount to be furnished by each State was in proportion
to the value of the land within its limits granted or surveyed, and the
buildings and improvements thereon, to be estimated according to the
mode prescribed by Congress. The sole means, therefore, which the
Confederation gave to Congress of supplying the treasury of the United
States, was to vote what sum was wanted, and to call upon the
legislature of each State to pay in its proportion within a given time.
The commerce of the country was left entirely within the control of the
State legislatures; rendering it the commerce of thirteen different
States, each of which could levy what duties it saw fit upon all exports
and imports, provided they did not interfere with any treaties then
proposed, or touch the property of the United States, or that of any
other State. The United States had no power of taxation, direct or
indirect.
The Articles of Confederation were also entirely without any provision
for enforcing the measures which they authorized Congress to adopt for
the general welfare of the Union. It was declared in the instrument,
that every State should abide by the determinations of Congress on all
the questions over which the instrument gave that body control; that the
Articles should be inviolably observed by every State; that the Union
should be perpetual; and that no alterations should be made in any of
the Articles, unless agreed to by Congress, and confirmed by the
legislature of every State. But these declarations, however strong and
emphatic in their terms, only made the Confederation in fact, as in
name, a league or compact between sovereign States; for it gave the
government of the Union no power to enforce its own measures or laws by
process upon the persons of individuals, and consequently any party to
the instrument could infringe any or all of its provisions, without any
other consequence than a resort to arms by the general Confederacy,
which would have been civil war.
These, with some restrictions upon the power of the States in regard to
the making of treaties, engaging in war, sending ambassadors, and some
other topics, were the main provisions of the Articles of Confederation;
and under the government thus constituted, the United States, on the
second day of March, 1781, entered upon a new era of civil polity, and
commenced a new existence, under somewhat happier auspices than they had
known before.
It will be seen, in the further development of the period which followed
the establishment of this Confederation, down to the calling of the
Convention which framed the Constitution, that what I have called the
great office of the Confederation, in our political system, was indeed a
function of vast importance to the happiness of the American people,
but, at the same time, was one that was necessarily soon fulfilled, to
be followed by a more perfect organization for the accomplishment of the
objects and the satisfaction of the wants which it brought in its train.
This office of the Confederation was, to demonstrate to the people of
the American States the practicability and necessity of a more perfect
union. The Confederation showed to the people of these separate
communities, that there were certain great purposes of civil government,
which they could not discharge by their separate means; that
independence of the crown of Great Britain could not be achieved by any
one of them, unassisted by all the rest; that no one of them, however
respectable in population or resources, could be received and dealt
with, by the governments of the world, as a nation among nations;--but
that, by union among themselves, by some political tie, which should
combine all their resources in the hands of one directing power, and
make them, in some practical sense, one people, it was possible for them
to achieve their independence, and take a place among the nations. The
Confederation made it manifest, that these consequences could be
secured. It did not, indeed, answer all the purposes, or accomplish all
the objects, which had been designed or hoped from it: it was defective
as a means; but it taught the existence of an end, and demonstrated the
possibility of reaching that end, by showing that in some form, and for
some purposes, a union of the States was both possible and necessary. It
thus made the permanent idea of union familiar to the people of the
different States. It did more than this. It created a larger field for
statesmanship, by creating larger interests, to be managed by that
higher order of men, who could rise above local concerns and sectional
objects, and embrace within the scope of their vision the happiness and
welfare of a continent. It introduced to men's minds the great ideas of
national power and national sovereignty, as the agencies that were to
work out the difficult results, which no local power could accomplish;
and, although these ideas were at first vague and indefinite, and made
but a slow and difficult progress against influences and prejudices of a
narrower kind, they were planted in the thoughts of men, to ripen into
maturity and strength in the progress of future years. When the eagle
grasped in his talons the united shafts of power, and unfurled the
scroll which taught that one people could be formed out of many
communities, the destiny of America was ascertained.[154]
FOOTNOTES:
[152] That is to say, that a citizen of any State might go and reside in
any other State, and be there entitled to all the privileges of a
citizen of that State.
[153] The meaning of this is, that, on the production in any State of a
law passed or of a judgment rendered in any other State, properly
authenticated, it should be admitted that such a law had been passed or
such a judgment rendered in the State whose act it purported to be, and
that all the legal consequences should follow.
[154] The armorial bearings of the United States were adopted on the
20th of June, 1782. Journals, VII. 395.
BOOK II.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF
THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783.
CHAPTER I.
1781-1783.
REQUISITIONS.--CLAIMS OF THE ARMY.--NEWBURGH ADDRESSES.--PEACE
PROCLAIMED.--THE ARMY DISBANDED.
The interval of time which extends from the adoption of the Articles of
Confederation to the initiatory steps for the formation of the
Constitution, must, for our purpose, be divided into two periods; that
which preceded and that which followed the peace of 1783; in both of
which the defects of the Confederation were rapidly developed, and in
both of which efforts were made to supply those defects, by an
enlargement of the powers of Congress. Our attention, however, will be
confined, in the present Book, to the first of these periods.
* * * * *
Congress assembled, under the Confederation, on the 2d of March, 1781,
and the Treaty of Peace, which put an end to the war and admitted the
independence of the United States, was definitively signed on the 3d of
September, 1783, and was ratified and proclaimed by Congress on the 14th
of January, 1784.
Notwithstanding the solemn engagements into which the States had entered
with each other, under the Articles of Confederation, the prospect of
bringing the war to a close, through a compliance with those
obligations, was exceedingly faint, at the commencement of the campaign
of 1782. The United States had made a treaty of alliance with the king
of France, in 1778;[155] and in pursuance of that treaty, six thousand
French troops arrived at Newport in July, 1780, and in the spring of
1781 joined the American army near New York. The presence in the country
of a foreign force, sent hither by the ancient rival of England, to
assist the people of the United States in their contest for
independence, encouraged an undue reliance upon external aid. Many of
the States became culpably remiss in complying with the requisitions of
Congress; and, although they had so recently authorized Congress to make
requisitions, both for men and money, and had provided the form in which
they were to be made, the adoption of the Articles of Confederation had
very little tendency to render the States prompt to discharge the
obligations which they imposed. In October and November, 1781, Congress
called upon the States to raise their several quotas of eight millions
of dollars, for the use of the United States, and recommended to them to
lay taxes for raising these quotas separate from those laid for their
own particular use, and to pass acts directing the collectors of the
taxes, intended for the use of the United States, to pay the same
directly into the treasury of the Union.[156] In December of the same
year, Congress also called upon the States, with great urgency, to
complete their quotas of troops for the next campaign.[157]
The aid of Washington was invoked, to influence the action of the States
upon these requisitions. On the 22d of January, 1782, he addressed a
circular letter to the governors of the States, to be laid before their
respective legislatures, on the subject of finance; reminding them how
the whole army had been thrown into a ferment twelve months before, for
the want of pay and a regular supply of clothing and provisions; warning
them that the recent successes in Virginia, by the capture of Lord
Cornwallis's army, might have a fatal tendency to cool the ardor of the
country in the prosecution of the war; assuring them that a vigorous
prosecution of that war could alone secure the independence of the
United States; and urging them to adopt such measures as would insure
the prompt payment of the sums which Congress had called for.[158] A few
days afterwards, he addressed a similar letter to the States, on the
subject of completing their quotas of troops, in which he told them that
the continuance or termination of the war now rested on their vigor and
decision; and that, even if the enemy were, in consequence of their late
reverses, disposed to treat, nothing but a decidedly superior force
could enable us boldly to claim our rights and dictate the terms of
pacification. "And soon," he said, "might that day arrive, and we might
hope to enjoy all the blessings of peace, if we could see again the same
animation in the cause of our country inspiring every breast, the same
passion for freedom and military glory impelling our youths to the
field, and the same disinterested patriotism pervading every rank of
men, that was conspicuous at the commencement of this glorious
revolution; and I am persuaded that only some great occasion was
wanting, such as the present moment exhibits, to rekindle the latent
sparks of that patriotic fire into a generous flame, to rouse again the
unconquerable spirit of liberty, which has sometimes seemed to slumber
for a while, into the full vigor of action."[159]
Notwithstanding these urgent appeals, the spring of 1782 arrived, and
the summer passed away, without any substantial compliance by the States
with the requisitions of Congress for either men or money. When
Washington arrived in camp, in May, to commence the campaign that was to
extort from the British government--now in the hands of a new ministry,
supposed to be more favorable to peace--the terms which he hoped might
be procured, there were less than ten thousand men in the Northern army;
and their numbers were not much increased during the summer.[160] Great
and dangerous discontents now existed in the army, both among officers
and soldiers, concerning the arrearages of pay; for, as the prospects
of peace became brighter, it seemed to become more and more probable,
that the army would ultimately be disbanded without adequate provision
for its claims, and that officers and men would be thrown penniless upon
the world, unpaid by the country whose independence they had achieved.
At this period there occurred the famous proceedings of the officers,
called the Newburgh Addresses, on the subject of half-pay; and since the
claims of the officers and soldiers, as public creditors of the United
States, are intimately connected with the constitutional history of the
country, it is needful to give here a brief account of them.
The pay of the officers in the Revolutionary army was originally
established upon so low a scale, that men with families dependent upon
them could feel little inducement to remain long in a service, the close
of which was to be rewarded only with a patent for a few hundred acres
of land in some part of the Western wilderness. In the year 1778, it had
become apparent to Washington, that something must be done to avert the
consequences of the mistaken policy on which Congress had acted with
reference to the army; and while at Valley Forge,--that scene of
dreadful suffering by the army,--he wrote on this subject to the
President of Congress the first of a series of most able and instructive
letters, which extend through the five following years.[161]
On the 17th of April, after this first letter had been laid before
Congress, a resolution was moved, that an establishment of half-pay be
made for officers, who should serve during the war; to begin after its
conclusion.[162] Four days afterwards, the sense of the house was taken
on the question, whether there should be any provision made for the
officers after the conclusion of the war, and the affirmative was
carried, by the votes of eight States against four.[163] On the 26th of
April, a proposition, that half-pay be granted for life, to commence at
the close of the war, passed by a majority of one State; six States
voting in the affirmative, five in the negative, and one being
divided.[164] The next day, the value of this vote was destroyed by a
resolution, which provided that the United States should have the right
to redeem the half-pay for life, by giving to the officer entitled six
years' half-pay;[165] and on the 15th of May, Congress substituted for
the whole scheme a provision of half-pay for seven years, taking away
the option of half-pay for life.[166]
This miserable and vacillating legislation shows the unpopularity of the
scheme of such an establishment, although demanded alike by
considerations of justice and policy.[167] The spirit which, for a
time, actuated a large part of the people of this country towards the
men who were suffering so much in the cause of national independence,
evinces an extreme jealousy for the abstract principles of civil
liberty, unmitigated by the generous virtues of justice and gratitude.
This spirit was duly represented in Congress. The main arguments
employed out of doors were, that pensions were contrary to the maxims
and spirit of our institutions; that to grant half-pay for life to the
officers was establishing a privileged class of men, who were to live
upon the public for the rest of their days; and that the officers
entered the service on the pay and inducements originally offered,
without any promise or prospect of such a reward. This kind of
impracticable adherence to a principle, working in this instance the
greatest injustice and leading ultimately to a breach of public faith,
was the principal cause that prolonged the war, and made it cost so much
suffering, so much blood, and so much treasure. The people of the United
States adhered so tenaciously to the principles and axioms of freedom,
that, even when they had undertaken a war for their own security and
independence against a foreign foe, they would not establish a
government with the power of direct taxation, or organize an army with
suitable rewards for service. The want of such a power in their
government led to the enormous emissions of paper money, which brought
with them a long train of sufferings and disasters, ending at last in
national bankruptcy. The want of justice to the army placed the civil
liberty of the country in imminent danger, and finally led to the cruel
oppression of men, whose valor had first won, and whose patriotism then
saved it from destruction.
In the six months which followed the vote of the 15th of May, 1778, the
provision which it had made was found to be wholly inadequate, and
General Washington, then at Philadelphia, again earnestly pressed the
subject upon the attention of Congress. On the 11th of August, 1779, a
report from a committee on this subject being under consideration, a
motion was made to amend it, by inserting a provision that the half-pay
granted by the resolve of the 15th of May, 1778, be extended so as to
continue for life; and this motion was carried by a vote of eight States
against four.[168] On the 17th, Congress resolved that the consideration
of that part of the report for extending the half-pay be postponed, and
that it be recommended to the several States that had not already
adopted measures for that purpose, to make such further provision for
the officers and soldiers enlisted for the war, who should continue in
service till the establishment of peace, as would be an adequate
compensation for their dangers, losses, and hardships, either by
granting to the officers half-pay for life and proper rewards to the
soldiers, or in such other manner as might appear most expedient to the
legislatures of the several States.[169]
Before the passage of this resolve, the State of Pennsylvania had placed
her officers upon an establishment of half-pay for life, and with the
happiest consequences. But no other State followed her example; and in
the autumn of 1780, it became necessary for Washington to apply to
Congress again.[170] At length, in consequence of his earnest and
repeated appeals, a resolve was passed, on the 21st of October, that the
officers who should continue in service to the end of the war should be
entitled to half-pay during life, to commence from the time of their
reduction.[171]
From this time, therefore, the officers of the army continued in the
service, relying upon the faith of the country, as expressed in the vote
of the 21st of October, 1780, and believing, until they saw proof to the
contrary, that the public faith thus pledged to them would be
observed.[172] But they were destined to a severe disappointment; and
one of the causes of that disappointment was the adoption of the
Articles of Confederation. The very change in the constitutional
position of the country, from which the most happy results were
anticipated, and which undoubtedly cemented the Union, became the means
by which they were cheated of their hopes. The Congress of 1780, which
had pledged to them a half-pay for life, was the Revolutionary Congress;
but the Congress which was to redeem this pledge was the Congress of the
Confederation, which required a vote of nine States for an appropriation
of money, or a call upon the States for their proportions. When the vote
granting the half-pay for life was passed, there were less than nine
States in favor of the measure; and after the Confederation was
established, the delegates of the States which originally opposed the
provision could not be brought to consider it in its true light,--that
of a compact with the officers. It was even contended that the vote,
having passed before the Confederation was signed and acted upon, was
not obligatory upon the Congress under the Confederation, as that
instrument required the votes of nine States for an appropriation of
money. In this manner, men deluded themselves with the notion, that a
change in the form of a government, or in the constitutional method of
raising money to discharge the obligations of a contract, can dissolve
those obligations, or alter the principles of justice on which they
depend. The States in the opposition to the measure refused to be
coerced, as they were pleased to consider it, and in the autumn of 1782,
the officers became convinced that they had nothing to hope for from
Congress, but a reference of their claims to their several States.[173]
In November, 1782, preliminary and eventual articles of peace were
agreed upon between the United States and Great Britain, by their
plenipotentiaries. Nothing had been done by Congress for the claims of
the army, and it seemed highly probable that it would be disbanded
without even a settlement of the accounts of the officers, and if so,
that they would never receive their dues. Alarmed and irritated by the
neglect of Congress; destitute of money and credit and of the means of
living from day to day; oppressed with debts; saddened by the distresses
of their families at home, and by the prospect of misery before
them,--they presented a memorial to Congress in December, in which they
urged the immediate adjustment of their dues, and offered to commute the
half-pay for life, granted by the resolve of October, 1780, for full pay
for a certain number of years, or for such a sum in gross, as should be
agreed on by their committee sent to Philadelphia to attend the progress
of the memorial through the house. It is manifest from statements in
this document, as well as from other evidence, that the officers were
nearly driven to desperation, and that their offer of commutation was
wrung from them by a state of public opinion little creditable to the
country. They recited their hardships, their poverty, and their
exertions in the cause; and all that they said was fully borne out by
their great commander, in his personal remonstrances with many of the
members of Congress. The officers asserted, that many of their brethren,
who had retired on the half-pay promised by the resolve of 1780, were
not only destitute of any effectual provision, but had become objects of
obloquy; and they referred with chagrin to the odious view in which the
citizens of too many of the States endeavored to place those who were
entitled to that provision.
But, from the prevailing feeling in Congress and in the country, nothing
better was to be expected than a compromise in place of the discharge of
a solemn obligation; and this feeling no American historian should fail
to record and to condemn. If these men had borne only the character of
public creditors, a state of public feeling which drove them into a
compromise of their claims ought always to be severely reprehended. But,
beyond the capacity of public creditors, they were the men who had
fought the battles which liberated the country from a foreign yoke; who
had endured every extremity of hardship, every form of suffering, which
the life of a soldier knows; who had stood between the common soldiery
and the civil power; and often, at the hazard of their lives, preserved
that discipline and subordination which the civil power had done too
much to hazard. They were, in a word, the men of whom their commander
said, that they had exhibited more virtue, fortitude, self-denial, and
perseverance, than had perhaps been then paralleled in the history of
human enthusiasm.
Painful, therefore, as it is, this lesson, of the wrong that may be done
by a breach of public faith, must be read. It lies open on the page of
history, and is the case of those to whose right arms the people of
this country owe the splendid inheritance of liberty. All real
palliations should be sought for and admitted. The country was poor: no
proper system of finance had been, or could be, developed by a
government which had no power of taxation; and the ideas and feelings of
the people of many of the States were provincial, and without the
liberality and enlargement of thought which comes of intercourse with
the world. But, after every apology has exhausted its force, the
conscientious student of history must mark the dereliction from public
duty; must admit what the public faith required; and must observe the
dangerous consequences which attend, and must ever attend, the breach of
a public obligation.
The immediate consequences which followed, in this instance, were
predicted by General Washington, who gave the clearest warning, in
advance of the officers' memorial, of the hazards that would attend the
further neglect of their claims. But his warning seems to have been
unheeded, or to have made but little impression against the prevailing
aversion to touch the unpopular subject of half-pay. The committee of
the officers were in attendance upon Congress during the whole winter,
and early in March, 1783, they wrote to their constituents that nothing
had been done.
At this moment, the predicament in which Washington stood, in the double
relation of citizen and soldier, was critical and delicate in the
extreme. In the course of a few days, all his firmness and patriotism,
all his sympathies as an officer, on the one side, and his fidelity to
the government on the other, were severely tried. On the 10th of March,
an anonymous address was circulated among the officers at Newburgh,
calling a meeting of the general and field officers, and of one officer
from each company, and one from the medical staff, to consider the late
letter from their representatives at Philadelphia, and to determine what
measures should be adopted to obtain that redress of grievances which
they seemed to have solicited in vain. It was written with great ability
and skill.[174] It spoke the language of injured feeling; it pointed
directly to the sword, as the remedy for injustice; and it spoke to men
who were suffering keenly under public ingratitude and neglect. Its
eloquence and its passion fell, therefore, upon hearts not insensible,
and a dangerous explosion seemed to be at hand. Washington met the
crisis with firmness, but also with conciliation. He issued orders
forbidding an assemblage at the call of an anonymous paper, and
directing the officers to assemble on Saturday, the 15th, to hear the
report of their committee, and to deliberate what further measures ought
to be adopted as most rational and best calculated to obtain the just
and important object in view. The senior officer in rank present was
directed to preside, and to report the result to the Commander-in-chief.
On the next day after these orders were issued, a second anonymous
address appeared from the same writer. In this paper, he affected to
consider the orders of General Washington, assuming the direction of the
meeting, as a sanction of the whole proceeding which he had proposed.
Washington saw, at once, that he must be present at the meeting himself,
or that his name would be used to justify measures which he intended to
discountenance and prevent. He therefore attended the meeting, and under
his influence, seconded by that of Putnam, Knox, Brooks, and Howard, the
result was the adoption of certain resolutions, in which the officers,
after reasserting their grievances, and rebuking all attempts to seduce
them from their civil allegiance, referred the whole subject of their
claims again to the consideration of Congress.
Even at this distant day, the peril of that crisis can scarcely be
contemplated without a shudder. Had the Commander-in-chief been other
than Washington, had the leading officers by whom he was surrounded been
less than the noblest of patriots, the land would have been deluged with
the blood of a civil war. But men who had suffered what the great
officers of the Revolution had suffered, had learned the lessons of
self-control which suffering teaches. The hard school of adversity in
which they had passed so many years made them sensible to an appeal
which only such a chief as Washington could make; and, when he
transmitted their resolves to Congress, he truly described them as "the
last glorious proof of patriotism which could have been given by men who
aspired to the distinction of a patriot army; not only confirming their
claim to the justice, but increasing their title to the gratitude, of
their country."[175]
The effect of these proceedings was the passage by Congress of certain
resolves, on the 22d of March, 1783, commuting the half-pay for life to
five years' full pay after the close of the war, to be received, at the
option of Congress, in money, or in such securities as were given to
other creditors of the United States.[176] On the 4th of July, the
accounts of the army were ordered to be made up and adjusted, and
certificates of the sums due were required to be given in the form
directed by the Superintendent of the Finances. On the 18th of October,
a proclamation was issued, disbanding the army.
* * * * *
From this time, the officers passed into the whole mass of the creditors
of the United States; and although they continued to constitute a
distinct class among those creditors, the history of their claims is to
be pursued in connection with that of the other public debts of the
country. The value of the votes which fixed their compensation, and paid
them in public securities, depended, of course, upon the ability of the
government to redeem the obligations which it issued. The general
financial powers of the Union, therefore, under the Confederation, must
now be considered.
FOOTNOTES:
[155] The treaty was concluded at Paris, February 6, 1778, and was
ratified by Congress on the 5th of May. Journals, IV. 256, 257.
[156] Resolves of October 30 and November 2, 1781. Journals, VII. 167,
169.
[157] Resolves of December 10, 1781. Journals, VII. 190.
[158] Writings, VIII. 226.
[159] Writings, VIII. 232, 235.
[160] Sparks's Life of Washington, p. 380.
[161] Letter of April 10, 1778. Writings of Washington, V. 312.
[162] Journals, IV. 221.
[163] Ibid. 228, 229. The States which voted in the negative were Rhode
Island, Connecticut, New Jersey, and South Carolina.
[164] Ibid. 243. The States voting in the negative were Massachusetts,
Rhode Island, Connecticut, New Jersey, and South Carolina. The State
whose vote was divided was Pennsylvania.
[165] Ibid. 244. Under this resolve, each officer was entitled to
receive half-pay annually, for the term of seven years after the
conclusion of war, if living.
[166] Ibid. 288.
[167] On the 21st of April, in the resolution reported by a committee,
the words "an establishment of half-pay for life" were, on motion,
changed to a "provision of half-pay";--an amendment which reveals very
plainly the character of the popular objections. Journals, IV. 228.
[168] Journals, V. 312.
[169] Ibid. 316, 317.
[170] Writings of Washington, VII. 165, 246.
[171] Journals, VI. 336.
[172] See General Washington's letter to General Sullivan (in Congress),
November 20, 1780. Writings, VII. 297.
[173] See the letter of General Lincoln, Secretary at War, to
Washington, cited by Mr. Sparks, VIII. 356.
[174] The "Newburgh Addresses" were written by John Armstrong,
(afterwards General Armstrong,) then a young man, and aide-de-camp to
General Gates, with the rank of Major. (Sparks's Life of Gouverneur
Morris, I. 253. United States Magazine for January 1, 1823, New York.)
The style of these papers, considering the period when they appeared, is
remarkably good. They are written with great point and vigor of
expression and great purity of English. For the purpose for which they
were designed,--a direct appeal to feeling,--they show the hand of a
master.
[175] March 18, 1783. Writings, VIII. 396.
[176] The resolves gave the option to lines of the respective States,
and not to the officers individually in those lines, to accept or refuse
the commutation. Journals, VIII. 162.
CHAPTER II.
1781-1783.
FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REVOLUTIONARY
DEBT.--REVENUE SYSTEM OF 1783.
It is not easy to ascertain the amount of the public debt of the United
States, at the time when the Confederation went into operation. But on
the 1st of January, 1783, it amounted to about forty-two millions of
dollars. About eight millions were due on loans obtained in France and
Holland, and the residue was due to citizens of the United States. The
annual interest of the debt was a little more than two million four
hundred thousand dollars.[177]
The Confederation had no sooner gone into operation, than it was
perceived by many of the principal statesmen of the country, that its
financial powers were so entirely defective, that Congress would never
be able, under them, to pay even the interest on the public debt.
Indeed, before the Confederation was finally ratified, so as to become
obligatory upon all the States, on the 3d of February, 1781, Congress
passed a resolve, recommending to the several States, as indispensably
necessary, to vest a power in Congress to levy for the use of the United
States a duty of five per cent. _ad valorem_, at the time and place of
importation, upon all foreign goods and merchandise imported into any of
the States; and that the money arising from such duties should be
appropriated to the discharge of the principal and interest of the debts
already then contracted, or which might be contracted, on the faith of
the United States, for the support of the war; the duties to be
continued until the debts should be fully and finally discharged.
It was at this time that the office of Superintendent of the Finances
was established, and Robert Morris was unanimously elected by Congress
to fill it. He was an eminent merchant of Philadelphia, of known
financial skill, devoted to the cause of the country, and possessed of
very considerable private resources, which he more than once sacrificed
to the public service. Under his administration, it is more than
probable that, if the States had complied with the requisitions of
Congress, the war would have been brought to a close at an earlier
period. But there was scarcely any compliance with those requisitions,
and, contemporaneously with this neglect, the proposal to vest in
Congress the power to levy duties met with serious opposition. On the
30th of October, 1781, Congress made a requisition upon the States for
eight millions of dollars, to meet the service of the ensuing year. In
January, 1783, one year and three months from the date of this
requisition, less than half a million of this sum had been received into
the treasury of the United States. After a delay of nearly two years,
one State entirely refused its concurrence with the plan of vesting in
Congress a power to levy duties, another withdrew the assent it had once
given, and a third had returned no answer.
The State which refused to grant this power to Congress was Rhode
Island. On the 6th of December, 1782, Congress determined to send a
deputation to that State, to endeavor to procure its assent to this
constitutional change. The increasing discontents of the army, the loud
clamors of the public creditors, the extreme disproportion between the
current means and the demands of the public service, and the
impossibility of obtaining further loans in Europe unless some security
could be held out to lenders, made it necessary for Congress to be
especially urgent with the legislature of Rhode Island. But, at the
moment when the deputation was about to depart on this mission, the
intelligence was received that Virginia had repealed the act by which
she had previously granted to Congress the power of laying duties, and
the proposal was therefore abandoned for a time.[178] But the leading
persons then in Congress--who saw the ruin impending over the country;
who were aware that the whole amount of money which Congress had
received, to carry on the public business for the year then just
expiring, was less than two millions of dollars,[179] while the three
branches of feeding, clothing, and paying the army exceeded five
millions of dollars per annum, exclusive of all other departments of the
public service; and who were equally aware that no means whatever
existed of paying the interest on the public debts--resolved still to
persevere in their endeavors to procure the establishment of revenues
equal to the purpose of funding all the debts of the United States.
Among these persons, Hamilton and Madison were the most active; and the
part which they took, at this period, in the measures for sustaining the
sinking credit of the country, and the efforts which they made, are
among the less conspicuous, but not less important services, which those
great men performed for their country. Another plan was devised, after
the failure of that of 1781, for investing Congress with a power to
derive a revenue from duties, and, in April, 1783, its promoters
procured for it the almost unanimous consent of Congress. This plan
recommended the States to vest in Congress the power of levying certain
duties upon goods imported into the country, partly specific and partly
_ad valorem_; the proceeds of such duties to be applied to the discharge
of the interest or principal of the debts incurred by the United States
for supporting the war. The duties were to be collected by collectors
appointed by the States, but accountable to Congress. It also
recommended to the States to establish, for a term of twenty-five years,
substantial and effectual revenues, exclusive of the duties to be levied
by Congress for supplying their proportions of fifteen millions of
dollars annually, for the same purpose; and that, when this plan had
been acceded to by all the States, it should be considered as forming a
mutual compact, irrevocable by one or more of them without the consent
of the whole. It was also proposed that the rule of proportion fixed by
the Confederation should be changed from the basis of real estate to
the basis of population.
This plan was sent out to the States, accompanied by an address,
prepared by Mr. Madison, in which the necessity of the measure was urged
with much ability and force. Annexed to this paper were various
documents, exhibiting the nature and origin of the public debts, and the
meritorious characters of the various public creditors; the whole of the
Newburgh Addresses, and the proceedings of the officers; the contracts
made with the king of France; and a very able answer by Hamilton to the
objections of Rhode Island. No stronger and more direct appeal was ever
made to the sense of right of any people. Never was the cause of
national honor, public faith, and public safety more powerfully and
eloquently set forth.[180]
And when we consider the various classes of the public creditors, at the
close of the war, and remember that the debts of the country had been
contracted for the great purpose of establishing its independence, and
that there was scarcely a creditor who had not some claim to the
gratitude of the country, we cannot but be astonished that such an
appeal as was then made should have fallen, as it did, unheeded upon the
legislatures and people of many of the States. In the first place, the
debts were due to an ally, the generous king of France, who had loaned
to the American people his armies and his treasures; who had added to
his loans liberal donations; and whose very contracts for repayment
contained proof of his magnanimity. In the next place, they were due to
that noble band of officers and soldiers, who had fought the battles of
their country, and who now asked only such a portion of their dues as
would enable them to retire, with the means of daily bread, from the
field of victory and glory into the bosom of peace and privacy, and
such effectual security for the residue of their claims, as their
country was unquestionably able to provide. In the last place, they were
due partly to those citizens of the country who had lent their funds to
the public, or manifested their confidence in the government by
receiving transfers of public securities from those who had so lent, and
partly to those whose property had been taken for the public
service.[181]
The United States had achieved their independence. They were about to
take rank among the nations of the world. As they should meet this
crisis, their character would be determined. The rights for which they
had contended were the rights of human nature. These rights had
triumphed, and now formed the basis of the civil polity of thirteen
independent States. The forms of republican government were therefore
called upon to justify themselves by their fruits. The higher qualities
of national character--justice, good faith, honor, gratitude--were
called upon to display an example, that would save the cause of
republican liberty from reproach and disgrace.[182]
But, unhappily, the establishment of peace tended to weaken the slender
bond which held the Union together, by turning the attention of men to
the internal affairs of their own States. The advantage and the
necessity of giving the regulation of foreign commerce to the general
government, if perceived at all, was perceived only by a few leading
statesmen. The commercial States fancied that they profited by a
condition of things which enabled them as importers to levy contribution
on their neighbors. The people did not as yet perceive, that, without
some central authority to regulate the whole trade alike, the clashing
regulations of rival States would sooner or later destroy the
Confederacy. Nor were they willing to be taxed for the payment of the
public debts. The people of the United States had not yet begun to feel,
that such a burden is to be borne as one of the first of public and
social duties. That part of the financial plan of 1783, which required
from the States a pledge of internal revenues for twenty-five years, met
with so much opposition, that Congress was obliged to abandon it, and to
confine its efforts to that part of the scheme which related to the
duties on imports. In 1786, all the States, except New York, had
complied with the latter part of the plan; but the refusal of that State
rendered the whole of it inoperative, and no resource remained to
Congress, after the close of the war, but the old method of making
requisitions on the States, under the rule of the Confederation.[183]
At the return of peace, therefore, the Confederation had had a trial of
two years and six months, as a government for purposes of war. It was
for these purposes, mainly, that it was established; being in fact, as
it was in name, a league of friendship between sovereign States, for
their common defence, the security of their liberties, and their mutual
and general welfare; the parties to which had bound themselves by it to
assist each other against all external attacks. Doubtless the framers of
the Confederation contemplated its duration beyond the period of the
war; for, besides the perpetual character of the Union, which it sought
and professed to establish, it had certain functions which were
manifestly to be exercised in peace as well as in war. These functions,
however, were few. The government was framed during a revolutionary war,
for the purposes of that war, and it went into operation while the war
was still waged; taking the place and superseding the powers of the
Revolutionary Congress, under which the war had been commenced and
prosecuted.
A written constitution, with a precise and well-defined mode of
operation, had thus succeeded to the vague and indefinite, but ample,
powers of the earlier government. But in the very modes of its
operation, there was a monstrous defect, which distorted the whole
system from the true proportions and character of a government. It gave
to the Confederation the power of contracting debts, and at the same
time withheld from it the power of paying them. It created a corporate
body, formed by the Union and known as the United States, and gave to
it the faculty of borrowing money and incurring other obligations. It
provided the mode in which its treasury should be supplied for the
reimbursement of the public creditor. But over the sources of that
supply, it gave the government contracting the debts no power whatever.
Thirteen independent legislatures granted or withheld the means which
were to enable the general government to pay the debts which the general
constitution had enabled it to contract, according to their own
convenience or their own views and feelings as to the purposes for which
those debts had been incurred. Yet the debts were wholly national in
their character, and by the nation they were to be discharged. But, by
the operation of the system under which the nation had undertaken to
discharge its obligations, the duty of performance was parcelled out
among the various subordinate corporations of States, and the country
was thus placed in the position of an empire whose power was at the
mercy of its provinces, and was sure to be controlled by provincial
objects and ideas.
A government thus situated, engaged in the prosecution of a war,
perpetually borrowing, but never paying, and scarce likely ever to pay,
was in a position to prosecute that war with far less than the real
energies and resources of the nation: and it stands the recorded opinion
of him who conducted his country through the whole struggle, and without
whom it could not, under this defective system, have achieved its
independence, that the war would have terminated sooner, and would have
cost vastly less both of blood and treasure, if the government of the
Union had possessed the power of direct or indirect taxation.[184] But
the government of the Confederation was one that trusted too much to the
patriotism and sense of honor of the different populations of the
different States. The moral feelings of a people will prompt to high and
heroic deeds; will impel them with irresistible force and energy to the
accomplishment of the great objects of liberty and happiness; and will
develop in individuals the highest capacity for endurance that human
nature can display. They did so in the American Revolution. The annals
of no people, struggling for liberty, exhibit more of the virtues of
fortitude, self-denial, and an ardent love of freedom, than ours
exhibit, especially in the earlier stages of the contest. But any
_feelings_ are an unsafe and uncertain reliance for the regular and
punctual operations of civil government. The fiscal concerns of a
nation, left to depend principally upon the prevailing sentiments of
justice, honor, and gratitude,--upon the connection between these
sentiments and that passion for liberty which animated the earlier
struggles for national independence,--are exposed to great hazards. If
an appeal to the feelings of a people constitutes the principal ground
of security for the public creditor, other feelings may intervene, which
will lead to a denial of the justice of the claim; for it is the very
nature of such an appeal to submit the whole question of obligation and
duty to popular determination. That government alone is likely to
discharge the just obligations of any people, which possesses both the
power to declare what those obligations are, and the power to levy the
means of payment, without a reference of either point to popular
sentiment.
The history of the Confederation contains abundant proofs of the
soundness of this position. At the close of the war, a debt of more than
forty millions of dollars was due from the United States to various
classes of creditors, and the whole of it had been contracted either by
the government of the Confederation, or by its predecessors, for whose
contracts the Confederation was expressly bound, by the Articles, to
provide. This debt could not be discharged without a grant of internal
revenues from the States, and without a grant of the power to collect
other revenues from the external trade of the country. The appeal that
was made by the government in order to obtain these grants was addressed
almost wholly to the moral sentiments of the people of the different
States; the time had scarcely arrived, although rapidly approaching, for
an appeal to those interests which were involved in the surrender to the
general government of the power of regulating foreign commerce;[185] and
consequently the arguments addressed to the sense of justice and the
feeling of gratitude were answered by discussions of the propriety,
justice, and reasonableness of some of the claims, for which the States
were thus called upon to provide, as existing debts of the country, not
without the hope, entertained in some quarters, of involving the whole
in confusion and final rejection.[186]
The design of the framers of the revenue system of 1783 was twofold;
first, to do justice to the creditors of the country, by procuring
adequate power to fund the public debts; and second, to strengthen and
consolidate the national government, by means of those debts and of the
various interests which would be combined in the great object of their
liquidation. They foresaw, on the approach of peace, that to leave these
debts to be provided for by the States individually would lead to a
separation of interests fatal to the continuance of the Union; but that
to make the United States responsible for the whole of them would be to
create a bond of union, that would be effectual and operative, after
the external pressure of war, which had hitherto held the States
together, should have been removed. For this purpose, they undoubtedly
availed themselves of the discontents of the army, a class of the public
creditors the justice of whose claims there was immediate danger in
denying. There is no reason to suppose that these discontents were
promoted by any one concerned in giving direction to the action of
Congress. But before the crisis had been reached in the "Newburgh
Addresses," it was perceived to be extremely important to prevent the
army from turning away from the general government, as their debtor, to
look to their respective States; and, after the imminent hazard of that
moment had passed, the claims of the army were used, and used most
rightfully, to impress upon the States the necessity of yielding to
Congress the powers necessary to do justice.[187]
In the proposal of this scheme of finance, involving, as it did, a
material change in the operation of the existing constitution of the
country, there was great wisdom; and it was eminently fortunate that it
went forth before the advent of peace, to be considered and acted upon
by the States. The system of the Confederation had utterly failed to
supply the means of sustaining the public credit of the Union, and the
consciousness of that failure tended to produce a resolution of the
Union into its component elements, the States. Men had begun to abandon
the hope of paying the debts of the country; or, if they were to be
paid at all, they had begun to look to the States, in their individual
capacities, as the ultimate debtors, to whom at least a part of the
claims was to be referred. Had the country been permitted to pass from a
state of war to a state of peace, without the suggestion and proposal of
a definite system for funding these debts on continental securities, the
Union would at once have been exhausted of all vitality. The
Confederation, left to discharge the functions which belonged to it in
peace, without the power of relieving the burdens which it had entailed
upon the country during the war, would have been everywhere regarded as
a useless machine, the purposes of which--poorly answered in the period
of its greatest activity--had entirely ceased to exist. Congress would
have been attended by delegates from few of the States, if attended at
all;[188] and the rapid decay of the Union would have been marked by the
feeble, spasmodic, and unsuccessful efforts of some of them to
discharge so much of the general burdens as could have been assigned to
them in severalty; the open repudiation of others; and the final
confusion and loss of the whole mass of the debts, in universal
bankruptcy, poverty, and disgrace.
But the comprehensive scheme of 1783, although never adopted, saved the
imperfect Union that then existed from the destruction to which it was
hastening. It saved it for a prolonged, though feeble existence, through
a period of desperate exhaustion. It saved it, by ascertaining the debts
of the country, fixing their national character, and proposing a
national system for their discharge. It directed the attention of the
States to the advantage and the necessity of giving up to the Union some
part of the imposts that might be levied on foreign commodities, and
thus led the way to that grand idea of uniformity of regulation, which
was afterwards developed as the true interest of communities, which,
from their geographical and moral relations, constitute in fact but one
country.
It is not intended, however, in assigning this influence to the revenue
system proposed in 1783, to suggest that it contained the germ of the
present Constitution. It was an essentially different system. It
proposed the enlargement of the powers of Congress, as they existed
under the Confederation, only by the grant to the United States of the
right to collect certain duties on foreign importations, for the limited
period of twenty-five years, to be applied to the discharge of the
debts contracted for the purposes of the war, but to be collected by
officers appointed by the States, although amenable to Congress; and the
levy and collection by the States of certain internal taxes, during the
same limited term, for the purpose of raising certain proportionate
sums, to be paid over to the United States, for the same object. So far,
therefore, as this system suggested any new powers, there is a wide
difference between its features and principles and those of an entire
and irrevocable surrender to the Union of the whole subject of taxing
and regulating foreign commerce. But the influence of this proposal upon
the country, during the four years which followed, is to be measured by
the evident necessities which it revealed, and by the means to which it
pointed for their relief;--means which, though never applied, and, if
applied, would have proved inadequate, still showed, through the period
of increasing weakness in the Union, the high obligations which rested
upon the country, and which could be discharged only by the preservation
of the Union.
* * * * *
NOTE TO PAGE 185.
ON THE HALF-PAY FOR THE OFFICERS OF THE REVOLUTION.
In Connecticut, the opposition to the plan of enabling
Congress to fund the public debts arose from the jealousy
with which the provision of half-pay for the officers of the
army had always been regarded in that State. In October,
1783, Governor Trumbull, in an address to the Assembly
declining a reëlection, had spoken of the necessity of
enlarging the powers of Congress, and of strengthening the
arm of the government. A committee reported an answer to this
address, which contained a paragraph approving of the
principles which the Governor had inculcated, but it was
stricken out in the lower house. Jonathan Trumbull, Jr., who
had been one of Washington's aids, thus wrote to him
concerning the rejection of this paragraph: "It was rejected,
lest, by adopting it, they should seem to convey to the
people an idea of their concurring with the political
sentiments contained in the address; so exceedingly jealous
is the spirit of this State at present respecting the powers
and the engagements of Congress, arising principally from
their aversion to the half-pay and commutation granted to the
army; principally, I say, arising from this cause. It is but
too true, that some few are wicked enough to hope, that, by
means of this clamor, they may be able to rid themselves of
the whole public debt, by introducing so much confusion into
public measures as shall eventually produce a general
abolition of the whole." (Writings of Washington, IX. 5,
note.) It appears from the Journals of Congress, that in
November, 1783, the House of Representatives of Connecticut
sent some remonstrance to Congress respecting the resolution
which had granted half-pay for life to the officers, which
was referred to a committee, to be answered. In the report of
this committee it was said, that "the resolution of Congress
referred to appears by the yeas and nays to have been passed
according to the then established rules of that body in
transacting the business of the United States; the resolution
itself had public notoriety, and does not appear to have been
formally objected against by the legislature of any State
till after the Confederation was completely adopted, _nor
till after the close of the war_." These words were stricken
out from the report by a vote of six States against one, two
States declining to vote. The journal gives no further
account of the matter. (Journals, IX. 79. March 12, 1784.)
In Massachusetts, the half-pay had always been equally
unpopular. The legislature of that State, on the 11th of
July, 1783, addressed a letter to Congress, to assign, as a
reason for not agreeing to the impost duty, the grant of
half-pay to the officers. The tone of this letter does little
credit to the State.
"_Commonwealth of Massachusetts._
"Boston, July 11. 1783.
"Sir:--
"The Address of the United States in Congress assembled has
been received by the legislature of the Commonwealth of
Massachusetts; and, while they consider themselves as bound
in duty to give Congress the highest assurance that no
measures consistent with their circumstances, and the
constitution of this government and the Federal Union, shall
remain unattempted by them to furnish those supplies which
justice demands, and which are necessary to support the
credit and honor of the United States, they find themselves
under a necessity of addressing Congress in regard to the
subject of the half-pay of the officers of the army, and the
proposed commutation thereof; with some other matters of a
similar nature, which produce among the people of this
Commonwealth the greatest concern and uneasiness, and involve
the legislature thereof in no small embarrassments. The
legislature have not been unacquainted with the sufferings,
nor are they forgetful of the virtue and bravery, of their
fellow-citizens in the army; and while they are sensible that
justice requires they should be fully compensated for their
services and sufferings, at the same time it is most
sincerely wished that they may return to the bosom of their
country, under such circumstances as may place them in the
most agreeable light with their fellow-citizens. Congress, in
the year 1780, resolved, that the officers of the army, who
should continue therein during the war, should be entitled to
half-pay for life; and at the same time resolved, that all
such as should retire therefrom, in consequence of the new
arrangement which was then ordered to take place, should be
entitled to the same benefit; a commutation of which half-pay
has since been proposed. The General Court are sensible that
the United States in Congress assembled are, by the
Confederation, vested with a discretionary power to make
provision for the support and payment of the army, and such
civil officers as may be necessary for managing the general
affairs of the United States; but in making such provision,
due regard ever ought to be had to the welfare and happiness
of the people, the rules of equity, and the spirit and
general design of the Confederation. We cannot, on this
occasion, avoid saying, that, with due respect, we are of
opinion those principles were not duly attended to, in the
grant of half-pay to the officers of the army; that being, in
our opinion, a grant of more than an adequate reward for
their services, and inconsistent with that equality which
ought to subsist among citizens of free and republican
States. Such a measure appears to be calculated to raise and
exalt some citizens in wealth and grandeur, to the injury and
oppression of others, even if the inequality which will
happen among the officers of the army, who have performed
from one to eight years' service, should not be taken into
consideration. The observations which have been made with
regard to the officers of the army will in general apply to
the civil officers appointed by Congress, who, in our
opinion, have been allowed much larger salaries than are
consistent with the state of our finances, the rules of
equity, and a proper regard to the public good. And, indeed,
if the United States were in the most wealthy and prosperous
circumstances, it is conceived that economy and moderation,
with respect to grants and allowances, in opposition to the
measures which have been adopted by monarchical and luxurious
courts, would most highly conduce to our reputation, even in
the eyes of foreigners, and would cause a people, who have
been contending with so much ardor and expense for republican
constitutions and freedom, which cannot be supported without
frugality and virtue, to appear with dignity and consistency;
and at the same time would, in the best manner, conduce to
the public happiness. It is thought to be essentially
necessary, especially at the present time, that Congress
should be expressly informed, that such measures as are
complained of are extremely opposite and irritating to the
principles and feelings which the people of some Eastern
States, and of this in particular, inherit from their
ancestry. The legislature cannot without horror entertain the
most distant idea of the dissolution of the Union which
subsists between the United States, and the ruin which would
inevitably ensue thereon; but with great pain they must
observe, that the extraordinary grants and allowances which
Congress have thought proper to make to their civil and
military officers have produced such effects in this
Commonwealth as are of a threatening aspect. From these
sources, and particularly from the grant of half-pay to the
officers of the army, and the proposed commutation thereof,
it has arisen, that the General Court has not been able
hitherto to agree in granting to the United States an impost
duty, agreeable to the recommendation of Congress; while the
General Assembly at the same time have been deeply impressed
with a sense of the necessity of speedily adopting some
effectual measures for supplying the continental treasury,
for the restoration of the public credit, and the salvation
of the country;--and propose, as the present session is near
terminating, again to take the subject of the impost duty
into consideration early in the next. From these
observations, you may easily learn the difficult and critical
situation the legislature is in, and they rely on the wisdom
of Congress to adopt and propose some measure for relief in
this extremity.
"In the name and by order of the General Court,
"We are your Excellency's most obedient humble servants,
"SAMUEL ADAMS,
_President of the Senate_.
"TRISTRAM DALTON,
_Speaker of the House of Representatives_.
"HIS EXCELLENCY THE PRESIDENT OF CONGRESS."
This letter was thought worthy an answer, and accordingly a
report upon it was brought in by Mr. Madison, and adopted in
Congress, containing among other things the following:--
"Your committee consider the measure of Congress as the
result of a deliberate judgment, framed on a general view of
the interests of the Union at large. They consider it to be a
truth, that no State in this Confederacy can claim (more
equitably than an individual in a society) to derive
advantages from a Union, without conforming to the judgment
of a constitutional majority of those who compose it; still,
however, they conceive it will be found no less true, that,
if a State every way so important as Massachusetts should
withhold her solid support to constitutional measures of the
Confederacy, the result must be a dissolution of the
Union;--and then she must hold herself as alone responsible
for the anarchy and domestic confusion that may succeed, and
for exposing all these confederated States (who at the
commencement of the late war leagued to defend her violated
rights) an easy prey to the machinations of their enemies,
and the sport of European politics; and therefore they are of
opinion, that Congress should still confide that a free,
enlightened, and generous people will never hazard
consequences so perilous and alarming, and in all
circumstances rely on the wisdom, temper, and virtue of their
constituents, which (guided by an all-wise Providence) have
ever interposed to avert impending evils and misfortunes.
Your committee beg leave further to observe, that, from an
earnest desire to give satisfaction to such of the States as
expressed a dislike to the half-pay establishment, a sum in
gross was proposed by Congress, and accepted by the officers,
as an equivalent for their half-pay. That your committee are
informed, that such equivalent was ascertained on established
principles which are acknowledged to be just, and adopted in
similar cases; but that if the objections against the
commutation were ever so valid, yet, as it is not now under
the arbitration of Congress, but an act finally adopted, and
the national faith pledged to carry it into effect, they
could not be taken into consideration. With regard to the
salaries of civil officers, it may be observed, that the
necessaries of life have been very high during the war: hence
it has happened that even the salaries complained of have not
been found sufficient to induce persons properly qualified to
accept of many important offices, and the public business is
left undone." (Journals of Congress, VIII. 379--385.
September 25, 1783.)
* * * * *
NOTE TO PAGE 186.
ON THE NEWBURGH ADDRESSES.
There was a period in this business, when the officers would
have accepted from Congress a recommendation to their several
States for the payment of their dues. Their committee,
consisting of General McDougall, Colonel Brooks of
Massachusetts, and Colonel Ogden of New Jersey, arrived in
Philadelphia about the 1st of January. In their memorial to
Congress, they abstained from designating the funds from
which they desired satisfaction of their demands, because
their great object was to get a settlement of their accounts
and an equivalent for the half-pay established. But they
were, in fact, at one time, impressed with the belief that
their best, and indeed their only security, was to be sought
for in funds to be provided by the States, under the
recommendation of Congress. This plan would have involved a
division of the army into thirteen different parts, leaving
the claims of each part to be satisfied by its own State: a
course that would unquestionably have led to the rejection of
their demands in some States, and probably in many. To
prevent this, there is little doubt that the influence of
those members of Congress who wished to promote their
interests, and to identify them with the interests of the
other public creditors, was used; and by the middle of
February the committee of the officers became satisfied, that
the army must unitedly pursue a common object, insisting on
the grant of revenues to the general government, adequate to
the liquidation of all the public debts. (Letter of
Gouverneur Morris to General Greene, February 15, 1783. Life,
by Sparks, I. 250.) The point, however, which they continued
to urge, was the commutation; and upon this they encountered
great obstacles. The committee of Congress to whom their
memorial was referred went into a critical examination of the
principles of annuities, in order to determine on an
equivalent for the half-pay for life, promised by the resolve
of 1780. The result was a report, declaring that six years'
full pay was the proper equivalent. This report was followed
by a declaratory resolve, which was passed, "that the troops
of the United States, in common with all the creditors of the
same, have an undoubted right to expect security; and that
Congress will make every effort to obtain, from the
respective States, substantial funds, adequate to the object
of funding the whole debt of the United States, and will
enter upon an immediate and full consideration of the nature
of such funds, and the most likely mode of obtaining them."
The remainder of the report, however, was referred to a new
committee of five, the number of years being considered too
many. The second committee reported five years' whole pay as
an equivalent, after another calculation of annuities; but
the approval of nine States could not be obtained. A desire
was then expressed by some of the members, who were opposed
both to the commutation and the half-pay, to have more time
for consideration, and this was granted.
This was the position of the matter on the 8th of February,
when the committee of the officers wrote to General Knox on
the part of the army. They stated that "Massachusetts, New
York, Pennsylvania, Virginia, North and South Carolina were
for the equivalent; New Hampshire, Rhode Island, Connecticut,
and Jersey against it. There is some prospect of getting one
more of these States to vote for the commutation. If this is
accomplished, with Maryland and Delaware, the question will
be carried; whenever it is, as the report now stands, it will
be at the election of the line, as such, to accept of the
commutation or retain their claim to the half-pay, Congress
being determined, that no alteration shall take place in the
emolument held out to the army but by their consent. This
rendered it unnecessary for us to consult the army on the
equivalent for half-pay. The zeal of a great number of
members of Congress to get continental funds, while a few
wished to have us referred to the States, induced us to
conceal what funds we wished or expected, lest our
declaration for one or the other might retard a settlement of
our accounts, or a determination on the equivalent for
half-pay. Indeed, some of our best friends in Congress
declared, however desirous they were to have our accounts
settled, and the commutation fixed, as well as to get funds,
yet they would oppose referring us to the States for a
settlement and security, till all prospect of obtaining
continental funds was at an end. Whether this is near or not,
as commutation for the half-pay was one of the principal
objects of the address, the obtaining of that is necessary,
previous to our particularizing what fund will be most
agreeable to us: this must be determined by circumstances. If
Congress get funds, we shall be secured. If not, the
equivalent settled, a principle will be established, which
will be more acceptable to the Eastern States than half-pay,
if application must be made to them. As it is not likely that
Congress will be able to determine soon on the commutation,
(for the reasons above mentioned,) it is judged necessary
that Colonel Brooks return to the army, to give them a more
particular detail of our prospects than can be done in the
compass of a letter." (Writings of Washington, VIII. 553,
554.)
Two classes of persons existed at this time in Congress, of
very different views; the one attached to State, the other to
continental politics; the one strenuous advocates for funding
the public debts upon solid securities, the other opposed to
this plan, and finally yielding to it only in consequence of
the clamors of the army and the other public creditors. The
advocates for continental funds, convinced that nothing could
be done for the public credit by any other measures,
determined to blend the interests of the army and those of
the other creditors in their scheme, in order to combine all
the motives that could operate upon different descriptions of
men in the different States. Washington, who naturally
regarded the interests of the army as the first object in
point of importance, and who had not given his attention so
much to the general financial affairs of the country, seems
to have thought it unadvisable to bring the claims of the
army before the States, in connection with the other public
debts. On the 4th of March, he wrote to Hamilton (then in
Congress), that "the just claims of the army ought, and it is
to be hoped will, have their weight with every sensible
legislature in the United States, if Congress point to their
demands, and show, if the case is so, the reasonableness of
them, and the impracticability of complying with them without
their aid. In any other point of view, it would in my opinion
be impolitic to introduce the army on the tapis, lest it
should excite jealousy and bring on its concomitants. The
States surely cannot be so devoid of common sense, common
honesty, and common policy, as to refuse their aid on a full,
clear, and candid representation of facts from Congress; more
especially if these should be enforced by members of their
own body, who might demonstrate what the inevitable
consequences of failure will lead to." (Writings, VIII. 390.)
But while the advocates of the continental system were
maturing their plans, new difficulties arose, in consequence
of the proceedings of the officers at Newburgh, and of the
jealousies which the army began to entertain. Among the
resolutions adopted by the officers was one, which expressed
their unshaken confidence in the justice of Congress and the
country, and their conviction that Congress would not
disband them, until their accounts had been liquidated, and
adequate funds established for their payment. But Congress
had no constitutional power, under the Confederation, to
demand funds of the States; and to determine that the army
should be continued in service until the States granted the
funds, which it was intended to recommend, would be to
determine that it should remain a standing army in time of
peace, until the States should comply with the
recommendation. On the other hand, Congress had no present
means of paying the army, if they were to disband them. This
dilemma rendered it necessary to evade for a short time any
explicit declaration of the purposes of Congress as to
disbanding the army; and hence arose a jealousy, on the part
of the army, that they were to be used as mere puppets to
operate upon the country, in favor of a general revenue
system. Washington himself communicated the existence of
these suspicions to Hamilton, on the 4th of April, advising
that the army should be disbanded as soon as possible,
consulting its wishes as to the mode. He also intimated that
the Superintendent of the Finances, Robert Morris, was
suspected to be at the bottom of the scheme of keeping the
army together, for the purpose of aiding the adoption of the
revenue system.
Hamilton's reply explains the position of the whole matter,
and the motives and purposes of those with whom he acted.
"But the question was not merely how to do justice to the
creditors, but how to restore public credit. Taxation in this
country, it was found, could not supply a sixth part of the
public necessities. The loans in Europe were far short of the
balance, and the prospect every day diminishing; the court of
France telling us, in plain terms, she could not even do as
much as she had done; individuals in Holland, and everywhere
else, refusing to part with their money on the precarious
tenure of the mere faith of this country, without any pledge
for the payment either of principal or interest. In this
situation, what was to be done? It was essential to our cause
that vigorous efforts should be made to restore public
credit; it was necessary to combine all the motives to this
end, that could operate upon different descriptions of
persons in the different States. The necessity and
discontents of the army presented themselves as a powerful
engine. But, sir, these gentlemen would be puzzled to support
their insinuations by a single fact. It was indeed proposed
to appropriate the intended impost on trade to the army debt,
and, what was extraordinary, by gentlemen who had expressed
their dislike to the principle of the fund. I acknowledge I
was one that opposed this, for the reasons already assigned,
and for these additional ones: _that_ was the fund on which
we most counted to obtain further loans in Europe; it was
necessary we should have a fund sufficient to pay the
interest of what had been borrowed and what was to be
borrowed. The truth was, these people in this instance wanted
to play off the army against the funding system. As to Mr.
Morris, I will give your Excellency a true explanation of his
conduct. He had been for some time pressing Congress to
endeavor to obtain funds, and had found a great backwardness
in the business. He found the taxes unproductive in the
different States; he found the loans in Europe making a very
slow progress; he found himself pressed on all hands for
supplies; he found himself, in short, reduced to this
alternative,--either of making engagements which he could not
fulfil, or declaring his resignation in case funds were not
established by a given time. Had he followed the first
course, the bubble must soon have burst; he must have
sacrificed his credit and his character, and _public_ credit,
already in a ruined condition, would have lost its last
support. He wisely judged it better to resign; this might
increase the embarrassments of the moment, but the necessity
of the case, it was to be hoped, would produce the proper
measures, and he might then resume the direction of the
machine with advantage and success. He also had some hope
that his resignation would prove a stimulus to Congress. He
was, however, ill-advised in the publication of his letters
of resignation. This was an imprudent step, and has given a
handle to his personal enemies, who, by playing upon the
passions of others, have drawn some well-meaning men into the
cry against him. But Mr. Morris certainly deserves a great
deal from his country. I believe no man in this country but
himself could have kept the money machine going during the
period he has been in office. From every thing that appears,
his administration has been upright as well as able. The
truth is, the old leaven of Deane and Lee is at this day
working against Mr. Morris. He happened in that dispute to
have been on the side of Deane, and certain men can never
forgive him.... The matter, with respect to the army, which
has occasioned most altercation in Congress, and most
dissatisfaction in the army, has been the half-pay. The
opinions on this head have been two: one party was for
referring the several lines to their States, to make such
commutation as they should think proper; the other, for
making the commutation by Congress, and funding it on
continental security. I was of this last opinion, and so were
all those who will be represented as having made use of the
army as our puppets. Our principal reasons were:--First, by
referring the lines to their respective States, those which
were opposed to the half-pay would have taken advantage of
the officers' necessities to make the commutation short of an
equivalent. Secondly, the inequality which would have arisen
in the different States when the officers came to compare,
(as has happened in other cases,) would have been a new
source of discontent. Thirdly, such a reference was a
continuance of the old, wretched State system, by which the
ties between Congress and the army have been nearly
dissolved,--by which the resources of the States have been
diverted from the common treasury and wasted: a system which
your Excellency has often justly reprobated. I have gone into
these details to give you a just idea of the parties in
Congress. I assure you, upon my honor, sir, I have given you
a candid statement of facts, to the best of my judgment. The
men against whom the suspicions you mention must be directed,
are in general the most sensible, the most liberal, the most
independent, and the most respectable characters in our body,
as well as the most unequivocal friends to the army; in a
word, they are the men who think continentally." (Life of
Hamilton, II. 162-164.)
FOOTNOTES:
[177] The debt due to the crown of France was ascertained in 1782 to be
eighteen millions of livres; and by the contract entered into by the
Unites States with the king of France, on the 16th of July, 1782, the
principal of this debt was to be paid in twelve annual instalments of
one million five hundred thousand livres each, in twelve years, to
commence from the third year after a peace, at the royal treasury in
Paris. The interest was payable annually, at the time and place
stipulated for the payment of the instalments of the principal, at five
per cent. The king generously remitted the arrears of interest due at
the date of the contract. There was also due to the King of France ten
millions of livres, borrowed by him of the States-General of the
Netherlands for the use of the United States, and the payment of which
he had guaranteed. This sum was to be paid in Paris in ten annual
instalments of one million of livres each, commencing on the 5th of
November, 1787. The interest on this loan was payable in Paris
immediately, and the first payment of interest became due on the 5th of
November, 1782. There was also due to the Farmers-General of France one
million of livres, and to the king six millions of livres, on a loan for
the year 1783; making in the whole thirty-eight millions of livres, or
$7,037,037, due in France. There was also due to money-lenders in
Holland $671,000; for money borrowed by Mr. Jay in Spain, $150,000; and
a year's interest on the Dutch loan of ten millions of livres, amounting
to $26,848;--making the whole foreign debt $7,885,085. The domestic debt
amounted to $34,115,290. Five millions of this were due to the army,
_under the commutation_ resolves of March, 1783. The residue was held by
other citizens, or consisted of arrears of interest. The whole debt of
the United States was estimated at $42,000,375, and the annual interest
of this sum was $2,415,956.
[178] Mr. Madison (under the date of December 24, 1782) says, that, on
the receipt of this intelligence, "the most intelligent members were
deeply affected, and prognosticated a failure of the impost scheme, and
the most pernicious effects to the character, the duration, and the
interests of the Confederacy. It was at length, notwithstanding,
determined to persist in the attempt for permanent revenue, and a
committee was appointed to report the steps proper to be taken." Debates
in the Congress of the Confederation, Elliot, I. 17.
[179] $1,545,818 and 30/90 was the whole amount.
[180] On the final question, as to the revenue system, Hamilton voted
against it. His reasons were given in a letter to the Governor of New
York, under date of April 14, 1783. They were, "First, that it does not
designate the funds (except the impost) on which the whole interest is
to arise; and by which (selecting the capital articles of visible
property) the collection would have been easy, the funds productive, and
necessarily increasing with the increase of the country. Secondly, that
the duration of the funds is not coextensive with the debt, but limited
to twenty-five years, though there is a moral certainty that in that
period the principal will not, by the present provision, be fairly
extinguished. Thirdly, that the nomination and appointment of the
collectors of the revenue are to reside in each State, instead of, at
least, the nomination being in the United States; the consequence of
which will be, that those States which have little interest in the
funds, by having a small share of the public debt due to their own
citizens, will take care to appoint such persons as are the least likely
to collect the revenue." Still, he urged the adoption of the plan by his
own State, "because it is her interest, at all events, to promote the
payment of the public debt in continental funds, independent of the
general considerations of union and propriety. I am much mistaken, if
the debts due from the United States to the citizens of the State of New
York do not considerably exceed its proportion of the necessary funds;
of course, it has an immediate interest that there should be a
continental provision for them. But there are superior motives that
ought to operate in every State,--the obligations of national faith,
honor, and reputation. Individuals have been too long already sacrificed
to the public convenience. It will be shocking, and, indeed, an eternal
reproach to this country, if we begin the peaceable enjoyment of our
independence by a violation of all the principles of honesty and true
policy. It is worthy of remark, that at least four fifths of the
domestic debt are due to the citizens of the States from Pennsylvania,
inclusively, northward." Life of Hamilton, II. 185, 186.
[181] Address.
[182] Ibid.
[183] With what success this was attended may be seen from the fact,
that, from the year 1782 to the year 1786, Congress made requisitions on
the States for the purpose of paying the interest on the public debts,
of more than six millions of dollars, and on the 31st of March, 1787,
about one million only of this sum had been received. The interest of
the debt due to domestic creditors remained wholly unpaid; money was
borrowed in Europe to pay the interest on the foreign loans; and the
domestic debt sunk to so low a value, that it was often sold for one
tenth of its nominal amount.
[184] General Washington's letter to Hamilton, March 31, 1783. Writings,
VIII. 409, 410. Circular Letter to the Governors of the States, on
disbanding the army. Ibid. 439, 451.
[185] None of the documents, connected with the Address to the People of
the United States, issued by Congress in 1783, discussed the question as
one of direct interest and advantage, except Hamilton's answer to the
objections of Rhode Island. The Address itself appealed entirely to
considerations of honor, justice, and good faith. Hamilton's paper,
however, showed with great perspicacity, that the proposed impost would
not be unfavorable to commerce, but the contrary; that it would not
diminish the profits of the merchant, being too moderate in amount to
discourage the consumption of imported goods, and therefore that it
would not diminish the extent of importations; but that, even if it had
this tendency, it was a tendency in the right direction, because it
would lessen the proportion of imports to exports, and incline the
balance in favor of the country. But the great question of yielding the
control of foreign commerce to the Union, _for the sake of uniformity of
regulation_, was not touched in any of these papers. The time for it had
not arrived.
[186] See note at the end of this chapter.
[187] See note on page 194.
[188] As it was, the approach of peace had reduced the attendance upon
Congress below the constitutional number of States necessary to ratify
the treaty, when it was received. On the 23d of December, 1783, a
resolve was passed, "That letters be immediately despatched to the
executives of New Hampshire, Connecticut, New York, New Jersey, South
Carolina, and Georgia, informing them that the safety, honor, and good
faith of the United States require the immediate attendance of their
delegates in Congress; that there have not been during the sitting of
Congress at this place [Annapolis] more than seven States represented,
namely, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland,
Virginia, and North Carolina, and most of those by only two delegates;
and that the ratification of the definitive treaty, and several other
matters, of great national concern, are now pending before Congress,
which require the utmost despatch, and to which the assent of at least
nine States is necessary." (Journals, IX. 12.)
CHAPTER III.
1781-1783.
OPINIONS AND EFFORTS OF WASHINGTON AND OF HAMILTON.--DECLINE OF THE
CONFEDERATION.
The proposal of the revenue system went forth to the country, although
not in immediate connection, yet nearly at the same time, with those
comprehensive and weighty counsels which Washington addressed to the
States, when the great object for which he had entered the service of
his country had been accomplished, and he was about to return to a
private station. His relations to the people of this country had been
peculiar. He had been, not only the leader of their armies, but, in a
great degree, their civil counsellor; for although he had rarely, if
ever, gone out of the province of his command to give shape or direction
to constitutional changes, yet the whole circumstances of that command
had constantly placed him in contact with the governments of the States,
as well as with the Congress; and he had often been obliged to interpose
the influence of his own character and opinions with all of them, in
order that the civil machine might not wholly cease to move. At the
moment when he was about to lay aside the sword, he saw very clearly
that there were certain principles of conduct which must be called into
action in the States, and among the people of the States, for the
preservation of the Union. He, and he alone, could address to them with
effect the requisite words of admonition, and point out the course of
safety and success. This great service, the last act of his
revolutionary official life, was performed with all the truth and wisdom
of his character, before he proceeded to resign into the hands of
Congress the power which he had held so long, and which he now
surrendered with a virtue, a dignity, and a sincerity, with which no
such power has ever been laid down by any of the leaders of revolutions
whom the world has seen.
His object in this Address was not so much to urge the adoption of
particular measures, as to inculcate principles which he believed to be
essential to the welfare of the country. So clearly, however, did it
appear to him, that the honor and independence of the country were
involved in the adoption of the revenue system which Congress had
recommended, that he did not refrain from urging it as the sole means by
which a national bankruptcy could be averted, before any different plan
could be proposed and adopted.
But how far, at this time, any other or further plans, for the formation
of a better constitution, had been formed, or how far any one perceived
both the vicious principle of the Confederation and the means of
substituting for it another and more efficient power, we can judge only
by the published writings of the Revolutionary statesmen. It is quite
certain that at this period Washington saw the defects of the
Confederation, as he had seen them clearly, and suffered under them,
from the beginning. He saw that in the powers of the States, which far
exceeded those of the Continental Congress, lay the source of all the
perplexities which he had experienced in the course of the war, and of
almost the whole of the difficulties and distresses of the army; and
that to form a new constitution, which would give consistency,
stability, and dignity to the Union, was the great problem of the time.
He saw, also, that the honor and true interest of this country were
involved in the development of continental power; that local and State
politics were destined to interfere with the establishment of any more
liberal and extensive plan of government, which the circumstances of the
country required, as they had perpetually weakened the bond by which the
Union had thus far been held together; and that such local influences
would make these States the sport of European policy. He predicted,
moreover, that the country would reach, if it reached at all, some
system of sufficient capabilities, only through mistakes and disasters,
and through an experience purchased at the price of further difficulties
and distress. Such were his general views, at the close of the war.[189]
But there was one man in the country who had looked more deeply still
into its wants, and who had formed in his enlarged and comprehensive
mind the clearest views of the means necessary to meet them, even before
the Confederation had been practically tried. A reorganization of the
government had engaged the attention of Hamilton, as early as 1780; and,
with his characteristic penetration and power, he saw and suggested what
should be the remedy.
He entertained the opinion, at this time, as he had always entertained
it, that the discretionary powers originally vested in Congress for the
safety of the States, and implied in the circumstances and objects of
their assembling, were fully competent to the public exigencies. But
their practice, from the time of the Declaration of Independence through
all the period that preceded the establishment of the Confederation, had
accustomed the country to doubts of their original authority, and had at
last amounted to a surrender of the ground from which they might have
exercised it. No remedy, therefore, remained, applicable to the
circumstances, and capable of rescuing the affairs of the country from
their deplorable situation, but to vest in Congress, expressly and by a
direct grant, the powers necessary to constitute an efficient government
and a solid, coercive union. The project then before the country, in the
Articles of Confederation, had been designed to accomplish what the
revolutionary government had failed to do. But it was manifestly
destined to fail in its turn; for it left an uncontrollable sovereignty
in the States, capable of defeating the beneficial exercise of the very
powers which it undertook to confer upon Congress. It made the army,
not a unit, formed and organized by a central and supreme authority, and
looking up to that authority alone, but a collection of several armies,
raised by the several States. It gave to the State legislatures the
effective power of the purse, by withholding all certain revenues from
Congress. It proposed to introduce no method and energy of
administration; and without an executive, it left every detail of
government to be managed by a deliberative body, whose constitution
rendered it fit for none but legislative functions.
Under these circumstances, it was Hamilton's advice, before the
Confederation took effect, that Congress should plainly, frankly, and
unanimously confess to the States their inability to carry on the
contest with Great Britain, without more ample powers than those which
they had for some time exercised, or those which they could exercise
under the Confederation; and that a convention of all the States be
immediately assembled, with full authority to agree upon a different
system. He suggested that a complete sovereignty should be vested in
Congress, except as to that part of internal police which relates to the
rights of property and life among individuals, and to raising money by
internal taxes, which he admitted should be regulated by the State
legislatures. But in all that relates to war, peace, trade, and finance,
he maintained that the sovereignty of Congress should be complete; that
it should have the entire management of foreign affairs, and of raising
and officering armies and navies; that it should have the entire
regulation of trade, determining with what countries it should be
carried on, laying prohibitions and duties, and granting bounties and
premiums; that it should have certain perpetual revenues of an internal
character, in specific taxes; that it should be authorized to institute
admiralty courts, coin money, establish banks, appropriate funds, and
make alliances offensive and defensive, and treaties of commerce. He
recommended also that Congress should immediately organize executive
departments of foreign affairs, war, marine, finance, and trade, with
great officers of state at the head of each of them.[190]
Hamilton's entry into Congress in 1782 marks the commencement of his
public efforts to develop the idea of a general government, whose organs
should act directly, and without the intervention of any State
machinery. He first publicly propounded this idea in the paper which he
prepared, as chairman of a committee, to be addressed to the legislature
of Rhode Island, in answer to the objections of that State to the
revenue system proposed in 1781. One of these objections was, that the
plan proposed to introduce into the State officers unknown and
unaccountable to the State itself, and therefore that it was against its
constitution. From the prevalence of this notion, we may see how
difficult it was to create the idea of a national sovereignty, that
would consist with the sovereignty of the States, and would work in its
appropriate sphere harmoniously with the State institutions, because
directed to a different class of objects. The nature of a federal
constitution was little understood. It was apparent that the exercise of
its powers must affect the internal police of its component members, to
some extent; but it was not well understood that political sovereignty
is capable of partition, according to the character of its subjects, so
that powers of one class may be imparted to a federal, and powers of
another class remain in a State constitution, without destroying the
sovereignty of the latter. Hamilton presented this view, and at the same
time pointed out, that, unless the constitution of a State expressly
prohibited its legislature from granting to the federal government new
power to appoint officers for a special purpose, to act within the State
itself, it was competent to the legislative authority of the State to
communicate such power, just as it was competent to it originally to
enter into the Confederation.[191]
In the same paper, also, he urged the necessity of vesting the
appointment of the collectors of the proposed revenue in the general
government, because it was designed as a security to creditors, and must
therefore be general in its principle and dependent on a single will,
and not on thirteen different authorities. This was the earliest
suggestion of the principle, that, in exercising its powers, the federal
government ought to act directly, through agents of its own appointment,
and thus be independent of State negligence or control. When the debate
came on in January, 1783, upon the new project of a revenue system, he
again urged the necessity of strengthening the federal government,
through the influence of officers deriving their appointments directly
from Congress;--a suggestion that was received at the moment with
pleasure by the opponents of the scheme, because it seemed to disclose a
motive calculated to touch the jealousy rather than to propitiate the
favor of the States. But the temporary expedients of the moment always
pass away. The great ideas of a statesman like Hamilton, earnestly bent
on the discovery and inculcation of truth, do not pass away. Wiser than
those by whom he was surrounded, with a deeper knowledge of the science
of government and the wants of the country than all of them, and
constantly enunciating principles which extended far beyond the
temporizing policy of the hour, the smiles of his opponents only prove
to posterity how far he was in advance of them.[192]
The efforts of Hamilton to effect a change in the rule of the
Confederation, as to the ratio of contribution by the States to the
treasury of the Union, also evince both the defects of the existing
government and the foresight with which he would have obviated them, if
he could have been sustained. The rule of the Confederation required
that the general treasury should be supplied by the several States in
proportion to the value of all lands within each State, granted or
surveyed, with the buildings and improvements thereon, to be estimated
according to such mode as Congress should from time to time direct and
appoint; the taxes for paying such proportion to be laid and levied by
the State legislatures, within the time fixed by Congress. But Congress
had never appointed any mode of ascertaining the valuation of lands
within the States. The first requisition called for after the
Confederation took effect was apportioned among the several States
without any valuation,--provision being made by which each State was to
receive interest on its payments, as far as they exceeded what might
afterwards be ascertained to be its just proportion, when the valuation
should have been made.[193] At the outset, therefore, a practical
inequality was established, which gave rise to complaints and jealousies
between the States, and increased the disposition to withhold compliance
with the requisitions. The dangerous crisis in the internal affairs of
the country which attended the approach of peace, had arrived in the
winter and spring of 1783, and nothing had ever been done to carry out
the rule of the Confederation, by fixing upon a mode of valuation. When
the discussion of the new measures for sustaining the public credit came
on, three courses presented themselves, with regard to this part of the
subject;--either, first, to change the principle of the Confederation
entirely; or, secondly, to carry it out by fixing a mode of valuation,
at once; or, thirdly, to postpone the attempt to carry it out, until a
better mode could be devised than the existing state of the country then
permitted.
Hamilton's preference was for the first of these courses, as the one
that admitted of the application of those principles of government which
he was endeavoring to introduce into the federal system; for he saw that
in the theory of the Confederation there was an inherent inequality,
which would constantly increase in practice, and which must either be
removed, or destroy the Union. He maintained, that, where there are
considerable differences in the relative wealth of different
communities, the proportion of those differences can never be
ascertained by any common measure; that the actual wealth of a country,
or its ability to pay taxes, depends on an endless variety of
circumstances, physical and moral, and cannot be measured by any one
general representative, as _land_, or _numbers_; and therefore that the
assumption of such a general representative, by whatever mode its local
value might be ascertained, would work inevitable inequality. In his
view, the only possible way of making the States contribute to the
general treasury in an equal proportion to their means, was by general
taxes imposed under continental authority; and it is a striking proof of
the comprehensive sagacity with which he looked forward, that, while he
admitted that this mode would, for a time, produce material
inequalities, he foresaw that balancing of interests which would arise
in a continental legislation, and would relieve the hardships of one tax
in a particular State by the lighter pressure of another bearing with
proportional weight in some other part of the Confederacy.[194]
Accordingly, after an attempt to postpone the consideration of a mode of
carrying out the Confederation, he made an effort to have its principle
changed, by substituting specific taxes on land and houses, to be
collected and appropriated, as well as the duties, under the authority
of the United States, by officers to be nominated by Congress, and
approved by the State in which they were to exercise their functions,
but accountable to and removable by Congress.[195] These ideas, however,
as he himself saw, were not agreeable to the spirit of the times, and
his plan was rejected. After many fruitless projects had been suggested
and discussed, for making the valuation required by the
Confederation,--some of them proposing that it should be done by
commissioners appointed by the United States, and some by commissioners
appointed by the States,--it was determined to propose no other change
in the principle of making requisitions on the States, than to
substitute population in the place of land, as the rule of
proportion.[196]
Equally extensive and important were his views on the subject of a
peace establishment, for which he saw the necessity of providing, as the
time approached when the Confederation would necessarily be tested as a
government for the purposes of peace. To adapt a constitution, whose
principal powers were originally designed to be exercised in a state of
war, to a state of peace, for which it possessed but few powers, and
those not clearly defined, was a problem in the science of government of
a novel character. It might prove to be an impossible task; for on
applying the constitutional provisions to the real wants and necessities
of the country, it might turn out that the Confederation was in some
respects destitute of the capacity to provide for them; and in
undertaking to carry out its actual and sufficient powers, which had
never hitherto been exercised, opposition might spring up, from State
jealousy and local policy, which, in the real weakness of the federal
government, would be as effectual a barrier as the want of
constitutional authority. Still the effort was to be made; and Hamilton
approached the subject with all the sagacity and statesmanship for which
he was so distinguished.
He saw that the Confederation contained provisions which looked to the
continuance of the Union after the war had terminated, and that these
provisions required practical application, through a machinery which
had never been even framed. The Articles of Confederation vested in
Congress the exclusive management of foreign relations; but the
department of foreign affairs had never been properly organized. They
also gave to Congress the exclusive regulation of trade and intercourse
with the Indian nations; but no department of Indian affairs had been
established with properly defined powers and duties. Nothing had been
done to carry out the provision for fixing the standard of weights and
measures throughout the United States, or to regulate the alloy and
value of coin. Above all, the great question of means, military and
naval, for the external and internal defence of the country during
peace, for the preservation of tranquillity, the protection of commerce,
the fulfilment of treaty stipulations, and the maintenance of the
authority of the United States, had not been so much as touched. To
regulate these important subjects was the design of a committee, at the
head of which Hamilton was placed; and his earliest attention was
directed to the most serious and difficult of them,--the provision for a
peace establishment of military and naval forces.[197]
The question whether the United States could constitutionally maintain
an army and navy, in time of peace, was, under the Articles of
Confederation, not free from difficulty; but it became of imminent
practical importance, under the treaty of peace. That treaty provided
for an immediate withdrawal of the British forces from all posts and
fortifications within the United States; and it became at once an
important question, whether these posts and fortifications--especially
those within certain districts, the jurisdiction and property of which
had not been constitutionally ascertained--should be garrisoned by
troops of the United States, or of the States within which they were
situated. There was also territory appertaining to the United States,
not within the original claim of the United States. The whole of the
Western frontier required defence. The navigation of the Mississippi and
the lakes, and the rights of the fisheries and of foreign commerce, all
belonging to the United States, and depending on the laws of nations and
treaty stipulations, demanded the joint protection of the Union, and
could not with propriety be left to the separate establishments of the
States.
But the Articles of Confederation contained no express provision for the
establishment and maintenance of any military and naval forces during
peace. They empowered the United States, generally, (and without mention
of peace or war,) to build and equip a navy, and to agree upon the
number of land forces to be raised, and to call upon the States to
furnish their quotas. But they also declared that no vessels of war
should be kept up by any State in time of peace, except such number only
as should be deemed necessary by Congress for the defence of such State
or its trade; and that no body of forces should be kept up by any State
in time of peace, except such number only as Congress should deem
requisite to garrison the posts necessary for the defence of such State.
This provision might be construed to imply, that, in time of peace, the
general defence was to be provided for by the forces of each State, and,
in time of war, by those of the Union. But it was the opinion of
Hamilton, that the restrictions on the powers of the States, with regard
to maintaining forces during peace, could not with propriety be said to
contain any directions to the United States, or to contravene the
positive power vested in the latter to raise both sea and land forces,
without mention of peace or war. He strengthened this view by the
capital inconvenience of the contrary construction, and by the manifest
necessities of the country, which could only be provided for by the
power of the Union. If the United States could have neither army nor
navy, until war had been declared, they would be obliged to begin to
create both at the very moment when both were needed in actual
hostilities; and, if the States were to be intrusted with the defence of
the country in time of peace, that defence would be left to thirteen
different armies and navies, under the direction of as many different
governments.[198]
He contemplated, therefore, the formation of a peace establishment, to
consist of certain corps of infantry, artillery, cavalry, engineers, and
dragoons;[199] a general survey, preparatory to the adoption of a
general system of land fortifications; the establishment of arsenals and
magazines, and the erection of founderies and manufactories of arms. He
advised the establishment of ports and maritime fortifications, and the
formation and construction of a navy; and his report embraced also a
plan for classing and disciplining the militia.[200]
In all this design, Hamilton pursued the purpose, which he had long
entertained, of strengthening and consolidating the Union, and guarding
against its dissolution, by providing the means necessary for its
defence. Federal, rather than State provision for the defence of every
part of the Confederacy, in peace as well as in war, seemed to him
essential. He thought, that the general government should have
exclusively the power of the sword, and that each State should have no
forces but its militia.[201] But his great plans were arrested, partly
in consequence of the doubts entertained on the point of constitutional
power, and partly by reason of the great falling off of the attendance
of members in Congress. At the very time when this important subject was
under consideration, Congress were driven from Philadelphia, by the
mutiny of a handful of men, whom they could not curb at the moment
without the aid of the local authorities, and that aid was not promptly
and efficiently given.[202]
Convinced, at length, that no temporary expedients would meet the wants
of the country, and that a radical reform of its constitution could
alone preserve the Union from dissolution, Hamilton surveyed the
Confederation in all its parts, and determined to lay before the country
its deep defects, with a view to the establishment of a government with
proper departments and adequate powers. In this examination, he applied
to the Confederation the approved maxims of free government, which had
been made familiar in the formation of the State constitutions, and
which point to the distinct separation of the legislative, executive,
and judicial functions. The Confederation vested all these powers in a
single body, and thus violated the principles on which the government of
nearly every State in the Union was founded. It had no federal
judicature, to take cognizance of matters of general concern, and
especially of those in which foreign nations and their subjects were
concerned; and thus national treaties, the national faith, and the
public tranquillity were exposed to the conflict of local regulations
against the powers vested in the Union. It gave to Congress the power of
ascertaining and appropriating the sums necessary for the public
expenses, but withheld all control over either the imposition or
collection of the taxes by which they were to be raised, and thus made
the inclinations, not the abilities, of the respective States, the
criterion of their contributions to the common expenses of the Union. It
authorized Congress to borrow money, or emit bills, on the credit of the
United States, without the power of providing funds to secure the
repayment of the money, or the redemption of the bills emitted.
It made no proper or competent provision for interior or exterior
defence; for interior defence, because it allowed the individual States
to appoint all regimental officers of the land forces, and to raise the
men in their own way, while at the same time an ambiguity rendered it
uncertain whether the defence of the country in time of peace was not
left to the particular States, both by sea and land;--for exterior
defence, because it authorized Congress to build and equip a navy,
without providing any compulsory means of manning it.
It failed to vest in the United States a general superintendence of
trade, equally necessary both with a view to revenue and regulation.
It required the assent of nine States in Congress to matters of
principal importance, and of seven to all others except adjournments
from day to day, and thus subjected the sense of a majority of the
people of the United States to that of a minority, by putting it in the
power of a small combination to defeat the most necessary measures.
Finally, it vested in the federal government the sole direction of the
interests of the United States in their intercourse with foreign
nations, without empowering it to pass _all general laws_ in aid and
support of the laws of nations; thus exposing the faith, reputation, and
peace of the country to the irregular action of the particular
States.[203]
Having thus fully analyzed for himself the nature of the existing
constitution, Hamilton proposed to himself the undertaking of inducing
Congress freely and frankly to inform the country of its imperfections,
which made it impossible to conduct the public affairs with honor to
themselves and advantage to the Union; and to recommend to the several
States to appoint a convention, with full powers to revise the
Confederation, and to adopt and propose such alterations as might appear
to be necessary, which should be finally approved or rejected by the
States.[204]
But he was surrounded by men, who were not equal to the great enterprise
of guiding and enlightening public sentiment. He was in advance of the
time, and far in advance of the men of the time. He experienced the fate
of all statesmen, in the like position, whose ideas have had to wait the
slow development of events, to bring them to the popular comprehension
and assent. He saw that his plans could not be adopted; and he passed
out of Congress to the pursuits of private life, recording upon them his
conviction, that their public proposal would have failed for want of
support.[205]
There was in fact a manifest indisposition in Congress to propose any
considerable change in the principle of the government. Hence, nothing
but the revenue system, with a change in the rule by which a partition
of the common burdens was to be made, was publicly proposed. Although
this system was a great improvement upon that of the Confederation, it
related simply to revenue, in regard to which it proposed a reform, not
of the principle of the government, but of the mode of operation of the
old system; for it embraced only a specific pledge by the States of
certain duties for a limited term, and not a grant of the unlimited
power of levying duties at pleasure. There was confessedly a departure
from the strict maxims of national credit, by not making the revenue
coextensive with its object, and by not placing its collection in every
respect under the authority charged with the management and payment of
the debt which it was designed to meet.[206]
These relaxations were a sacrifice to the jealousies of the States; and
they show that the time had not come for a change from a mere federative
union to a constitutional government, founded on the popular will, and
therefore acting by an energy and volition of its own.
The temper of the time was wholly unfavorable to such a change. The
early enthusiasm with which the nation had rushed into the conflict with
England, guided by a common impulse and animated by a national spirit,
had given place to calculations of local interest and advantage; and the
principle of the Confederation was tenaciously adhered to, while the
events which accompanied and followed the peace were rapidly displaying
its radical incapacity. The formation of the State governments, and the
consequent growth and importance of State interests, which came into
existence with the Confederation, and the fact that the Confederation
was itself an actual diminution of the previous powers of the Union, may
be considered the chief causes of the decline of a national spirit. That
spirit was destined to a still further decay, until the conflict of
State against State, and of section against section, by shaking the
government to its foundation, should reveal both the necessity for a
national sovereignty and the means by which it could be called into
life.
As a consequence and proof of the decline of national power, it is
worthy of observation, that, at the close of the year 1783, Congress had
practically dwindled to a feeble junto of about twenty persons,
exercising the various powers of the government, but without the dignity
and safety of a local habitation. Migrating from city to city and from
State to State, unable to agree upon a seat of government, from jealousy
and sectional policy; now assembling in the capitol of a State, and now
in the halls of a college; at all times dependent upon the protection
and even the countenance of local authorities, and without the presence
of any of the great and powerful minds who led the earlier counsels of
the country, this body presented a not inadequate type of the decaying
powers of the Union.[207] At no time in the history of the
Confederation, had all the States been represented at once; and the
return of peace seemed likely to reduce the entire machinery of the
government to a state of complete inaction.[208]
The Confederation, at the close of the war, is found to have
accomplished much, and also to have failed to accomplish much more. It
had effected the cession of the public lands to the United States; for
although that cession was not completed until after the peace, still the
arch on which the Union was ultimately to rest for whatever of safety
and perpetuity remained for it through the four following years, was
deposited in its place, when the Confederation was established. It had
also placed the United States, as a nation, in a position to contract
some alliances with foreign powers. It had finished the war; it had
achieved the independence of the nation; and had given peace to the
country. It had thus demonstrated the value of the Union, although its
defective construction aided the development of tendencies which
weakened and undermined its strength.
But its imperfect performance of the great tasks to which it had been
called, displayed its inherent defects. It had often been unequal to the
purpose of effectually drawing forth the resources of its members for
the common welfare and defence. It had often wanted an army adequate to
the protection and proportioned to the abilities of the country. It had,
therefore, seen important posts reduced, others imminently endangered,
and whole States and large parts of others overrun by small bodies of
the enemy;--had been destitute of sufficient means of feeding, clothing,
paying, and appointing its troops, and had thus exposed them to
sufferings for which history scarcely affords a parallel. It had been
compelled to make the administration of its affairs a succession of
temporary expedients, inconsistent with order, economy, energy, or a
scrupulous adherence to public engagements. It found itself, at the
close of the war, without any certain means of doing justice to those
who had been the principal supporters of the Union;--to an army which
had bravely fought, and patiently suffered,--to citizens and to
foreigners, who had cheerfully lent their money,--and to others who had
contributed property and personal service to the common cause. It was
obliged to rely, for the last hope of doing that justice, on the
precarious concurrence of thirteen distinct legislatures, the dissent of
either of which might defeat the plan, and leave the States, at an early
period of their existence, involved in all the disgrace and mischiefs
of violated faith and national bankruptcy.[209]
While, therefore, the United States emerged from the war, which for
seven long years had wasted the energies and drained the resources of
the people, with national independence, dark and portentous clouds
gathered about the dawn of peace, as the future opened before them. The
past had been crowned with victory;--dearly bought, but not at too dear
a price, for it brought with it the vast boon of civil liberty. But the
dangers and embarrassments through which that victory had been achieved
made it apparent that the government of the country was unequal to its
protection and prosperity. That government was now called to assume the
great duties of peace, without the acknowledged power of maintaining
either an army or a navy, and without the means of combining and
directing the forces and wills of the several parts to a general end;
without the least control over commerce; without the power to fulfil a
treaty; without laws acting upon individuals; and with no mode of
enforcing its own will, but by coercing a delinquent State to its
federal obligations by force of arms. How it met the great demands upon
its energy and durability which its new duties involved, we are now to
inquire.
FOOTNOTES:
[189] Letter to Hamilton, March 31, 1783. Writings, VIII. 409. Letter to
Lafayette, April 5, 1783. Ibid. 411. Address to the States, June 8,
1783. Ibid. 439.
[190] These suggestions were made by Hamilton, in a letter of great
ability, written in 1780, while he was still in the army, to James
Duane, a member of Congress from New York. It was not published until it
appeared in his Life, I. 284. At its close, he says: "I am persuaded a
solid confederation, a permanent army, a reasonable prospect of
subsisting it, would give us treble consideration in Europe, and produce
a peace this winter. _If a convention is called, the minds of all the
States and the people ought to be prepared to receive its determinations
by sensible and popular writings_, which should conform to the views of
Congress. There are epochs in human affairs when _novelty_ is useful. If
a general opinion prevails that the old way is bad, whether true or
false, and this obstructs or relaxes the operations of the public
service, a change is necessary, if it be but for the sake of change.
This is exactly the case now. 'T is an universal sentiment, that our
present system is a bad one, and that things do not go right on this
account. The measure of a convention would revive the hopes of the
people, and give a new direction to their passions, which may be
improved in carrying points of substantial utility. The Eastern States
have already pointed out this mode to Congress: they ought to take the
hint, and anticipate the others." What is here said of the action of the
Eastern States probably refers, not to any suggestion of a convention to
revise the powers of the general government, but to a convention of
committees of the Eastern States, which first assembled at Hartford, and
afterwards at Boston, in November, 1779, and in August, 1780, _for
regulating the prices of commodities_. Journals of Congress, V. 406; VI.
271, 331, 392. But the writer may have had in his mind the convention
which had just assembled in Massachusetts to form the constitution of
that State. I am aware of no public proposal, as early as 1780, of a
general convention to remodel the Confederacy.
[191] "It is not to be presumed," he said, "that the constitution of any
State means to define and fix the precise numbers and descriptions of
all officers to be permitted in the State, excluding the creation of any
new ones, whatever might be the necessity derived from that variety of
circumstances incident to all political institutions. The legislature
must always have a discretionary power of appointing officers, not
expressly known to the constitution, and this power will include that of
authorizing the federal government to make the appointments in cases
where the general welfare may require it. The denial of this would prove
too much; to wit, that the power given by the Confederation to Congress,
to appoint all officers in the post-office, was illegal and
unconstitutional. The doctrine advanced by Rhode Island would perhaps
prove also that the federal government ought to have the appointment of
no internal officers whatever; a position that would defeat all the
provisions of the Confederation, and all the purposes of the union. The
truth is, that no federal constitution can exist without powers that in
their exercise effect the internal police of the component members. It
is equally true, that no government can exist without a right to appoint
officers for those purposes which proceed from, and concentre in,
itself; and therefore the Confederation has expressly declared, that
Congress shall have authority to appoint all such 'civil officers as may
be necessary for managing the general affairs of the United States under
their direction.' All that can be required is, that the federal
government confine its appointments to such as it is empowered to make
by the original act of union, or by the subsequent consent of the
parties; unless there should be express words of exclusion in the
constitution of a State, there can be no reason to doubt that it is
within the compass of legislative discretion to communicate that
authority. The propriety of doing it upon the present occasion, is
founded on substantial reasons. The measure proposed is a measure of
necessity. Repeated experiments have shown, that the revenue to be
raised within these States is altogether inadequate to the public wants.
The deficiency can only be supplied by loans. Our applications to the
foreign powers on whose friendship we depend, have had a success far
short of our necessities. The next resource is to borrow from
individuals. These will neither be actuated by generosity nor reasons of
state. 'Tis to their interest alone we must appeal. To conciliate this,
we must not only stipulate a proper compensation for what they lend, but
we must give security for the performance. We must pledge an ascertained
fund, simple and productive in its nature, general in its principle, and
at the disposal of a single will. There can be little confidence in a
security under the constant revisal of thirteen different deliberatives.
It must, once for all, be defined and established on the faith of the
States, solemnly pledged to each other, and not revocable by any without
a breach of the general compact. 'Tis by such expedients that nations
whose resources are understood, whose reputations and governments are
erected on the foundation of ages, are enabled to obtain a solid and
extensive credit. Would it be reasonable in us to hope for more easy
terms, who have so recently assumed our rank among the nations? Is it
not to be expected, that individuals will be cautious in lending their
money to a people in our circumstances, and that they will at least
require the best security we can give? We have an enemy vigilant,
intriguing, well acquainted with our defects and embarrassments. We may
expect that he will make every effort to instil diffidences into
individuals, and in the present posture of our internal affairs he will
have too plausible ground on which to tread. Our necessities have
obliged us to embrace measures, with respect to our public credit,
calculated to inspire distrust. The prepossessions on this article must
naturally be against us, and it is therefore indispensable we should
endeavor to remove them, by such means as will be the most obvious and
striking. It was with these views Congress determined on a general fund;
and the one they have recommended must, upon a thorough examination,
appear to have fewer inconveniences than any other. It has been remarked
as an essential part of the plan, that the fund should depend on a
single will. This will not be the case, unless the collection, as well
as the appropriation, is under the control of the United States; for it
is evident, that, after the duty is agreed upon, it may, in a great
measure, be defeated by an ineffectual mode of levying it. The United
States have a common interest in a uniform and equally energetic
collection; and not only policy, but justice to all the parts of the
Union, designates the utility of lodging the power of making it where
the interest is common. Without this, it might in reality operate as a
very unequal tax." Journals of Congress, VIII. 153.
[192] He said, as an additional reason for the revenue being collected
by officers under the appointment of Congress, that, "as the energy of
the federal government was evidently short of the degree necessary for
pervading and uniting the States, it was expedient to introduce the
influence of officers deriving their emoluments from, and consequently
interested in supporting the power of Congress." Upon this Mr. Madison
observes: "This remark was imprudent, and injurious to the cause it was
intended to serve. This influence was the very source of jealousy which
rendered the States averse to a revenue under collection, as well as
appropriation, of Congress. All the members of Congress who concurred in
any degree, with the States in this jealousy, smiled at the disclosure.
Mr. Bland, and still more Mr. Lee, who were of this number, took notice,
in private conversation, that Mr. Hamilton had let out the secret."
Elliot's Debates, I. 35.
[193] March 18 and 23, 1781. Journals, VII. 56, 67.
[194] Life of Hamilton, II. 50-57.
[195] March 20, 1783. Journals, VIII. 157-159.
[196] The census was to be of "the whole number of white and other free
citizens and inhabitants, of every age, sex, and condition, including
those bound to servitude for a term of years, and three fifths of all
other persons not comprehended in the foregoing description, except
Indians, not paying taxes, in each State; which number shall be
triennially taken and transmitted to the United States in Congress
assembled, in such mode as they shall direct and appoint." When the
Articles of Confederation were framed and adopted in Congress, a
valuation of land as the rule of proportion was adopted instead of
numbers of inhabitants, in consequence of the impossibility of
compromising the different ideas of the Eastern and Southern States as
to the rate at which slaves should be counted; the Eastern States of
course wishing to have them counted in a near ratio to the whites, and
the Southern States wishing to diminish that ratio. Numbers would have
been preferred by the Southern States to land, if half their slaves only
could have been taken; but the Eastern States were opposed to this
estimate. (Elliot's Debates, I. 79.) In 1783, when it was proposed to
change the rule of proportion from land to numbers, the first compromise
suggested (by Mr. Wolcott of Connecticut) was to include only such
slaves as were between the ages of sixteen and sixty; this was found to
be impracticable; and it was agreed on all sides, that, instead of
fixing the proportion by ages, it would be best to fix it in absolute
numbers, and the rate of three fifths was agreed upon. (Ibid. 81, 82.)
[197] Life of Hamilton, II. 204-212.
[198] Ibid.
[199] He proposed that the States should transfer to Congress the right
to appoint the regimental officers, and that the men should be enlisted
under continental direction.
[200] That the subject of a peace establishment originated with Hamilton
is certain, from the fact that early in April, soon after the
appointment of the committee, he wrote to General Washington, wishing to
know his sentiments at large on such institutions of every kind for the
interior defence of the States as might be best adapted to their
circumstances. (Writings of Washington, VIII. 417.) Washington wrote to
all the principal officers of the army then in camp, for their views,
and from the memoirs which they presented to him an important document
was compiled, which was forwarded by him to the committee of Congress.
In one of these memoirs Colonel Pickering suggested the establishment of
a military academy at West Point. "If any thing," he said, "like a
military academy in America be practicable at this time, it must be
grounded on the permanent military establishment of our frontier posts
and arsenals, and the wants of the States, separately, of officers to
command the defences of their sea-coasts. On this principle, it might be
expedient to establish a military school, or academy, at West Point. And
that a competent number of young gentlemen might be induced to become
students, it might be made a rule, that vacancies in the standing
regiments should be supplied from thence; those few instances excepted
where it would be just to promote a very meritorious sergeant. For this
end, the number which shall be judged requisite to supply vacancies in
the standing regiment might be fixed, and that of the students, who are
admitted with an exception of filling them, limited accordingly. They
might be allowed subsistence at the public expense. If any other youth
desired to pursue the same studies at the military academy, they might
be admitted, only subsisting themselves. Those students should be
instructed in what is usually called military discipline, tactics, and
the theory and practice of fortification and gunnery. The commandant and
one or two other officers of the standing regiment, and the engineers,
making West Point their general residence, would be the masters of the
academy; and the inspector-general superintend the whole." (Ibid.) The
subject of a peace establishment was made one of the four principal
topics on which Washington afterwards enlarged in his circular letter to
the States, in June; but his suggestions related chiefly to a uniform
organization of the militia throughout the States. He subsequently had
several conferences with the committee of Congress, on the whole
subject, but nothing was done. (Vide note, infra.)
[201] Life of Hamilton, II. 214-219. The State of New York precipitated
the constitutional question, by demanding that the Western posts within
her limits should be garrisoned by troops of her own, and by instructing
her delegates in Congress to obtain a declaration, conformably to the
sixth article of the Confederation, of the number of troops necessary
for that purpose. Hamilton forbore to press this application while the
general subject of a peace establishment was under consideration. But
the doubts that arose as to the constitutional power of Congress to
raise an army for the purposes of peace, and the urgency of the case,
made it necessary to adopt a temporary measure with regard to the
frontier posts, and to direct the commander-in-chief to garrison them
with a part of the troops of the United States which had enlisted for
three years. This was ordered on the 12th of May. Soon after, the mutiny
of a portion of the new levies of the Pennsylvania line occurred, which
drove Congress from Philadelphia to Princeton, on the 21st of June. At
Princeton, they remained during the residue of the year, but with
diminished numbers and often without a constitutional quorum of States.
In September, General Washington wrote to Governor Clinton: "Congress
have come to no determination yet respecting a peace establishment, nor
am I able to say when they will. I have lately had a conference with a
committee on this subject, and have reiterated my former opinions: but
it appears to me, that there is not a sufficient representation to
discuss great national points; nor do I believe there will be, while
that honorable body continue their sessions at this place. The want of
accommodation, added to a disinclination in the Southern delegates to be
farther removed than they formerly were from the centre of the empire,
and an aversion in the others to give up what they conceive to be a
point gained by the late retreat to this place, keep matters in an
awkward situation, to the very great interruption of national concerns.
Seven States, it seems, by the Articles of Confederation, must agree,
before any place can be fixed upon for the seat of the federal
government; and seven States, it is said, never will agree;
consequently, as Congress came here, here they are to remain, to the
dissatisfaction of the majority and a great let to business, having none
of the public offices about them, nor any place to accommodate them, if
they were brought up; and the members, from this or some other cause,
are eternally absent."
[202] Mr. Madison has given the following account of this
occurrence:--"On the 19th of June, Congress received information from
the Executive Council of Pennsylvania, that eighty soldiers, who would
probably be followed by others, were on the way from Lancaster to
Philadelphia, in spite of the expostulations of their officers,
declaring that they would proceed to the seat of Congress and demand
justice, and intimating designs against the Bank. A committee, of which
Colonel Hamilton was chairman, was appointed to confer with the
executive of Pennsylvania, and to take such measures as they should find
necessary. After a conference, the committee reported that it was the
opinion of the executive that the militia of Philadelphia would probably
not be willing to take arms before they should be provoked by some
actual outrage; that it would hazard the authority of government to make
the attempt; and that it would be necessary to let the soldiers come
into the city, if the officers who had gone out to meet them could not
stop them. The next day the soldiers arrived in the city, led by their
sergeants, and professing to have no other object than to obtain a
settlement of accounts, which they supposed they had a better chance for
at Philadelphia than at Lancaster. On the 21st, they were drawn up in
the street before the State-House, where Congress were assembled. The
Executive Council of the State, sitting under the same roof, was called
on for the proper interposition. The President of the State (Dickinson)
came in and explained the difficulty of bringing out the militia of the
place for the suppression of the mutiny. He thought that, without some
outrages on persons or property, the militia could not be relied on.
General St. Clair, then in Philadelphia, was sent for, and desired to
use his interposition, in order to prevail on the troops to return to
the barracks. But his report gave no encouragement. In this posture of
things, it was proposed by Mr. Izard that Congress should adjourn.
Colonel Hamilton proposed that General St. Clair, in concert with the
Executive Council of the State, should take order for terminating the
mutiny. Mr. Reed moved that the General should endeavor to withdraw the
mutineers, by assuring them of the disposition of Congress to do them
justice. Nothing, however, was done. The soldiers remained in their
position, occasionally uttering offensive words and pointing their
muskets at the windows of the hall of Congress. At the usual hour of
adjournment the members went out, without obstruction; and the soldiers
retired to their barracks. In the evening Congress reassembled, and
appointed a committee to confer anew with the executive of the State.
This conference produced nothing but a repetition of the doubts
concerning the disposition of the militia to act, unless some actual
outrage were offered to persons or property, the insult to Congress not
being deemed a sufficient provocation. On the 24th, the efforts of the
State authority being despaired of, Congress were summoned by the
President to meet at Trenton." (Elliot's Debates, I. 92-94.) The mutiny
was afterwards suppressed by marching troops into Pennsylvania under
Major-General Howe. (Journals, VIII. 281.)
[203] Life of Hamilton, II. 230-237.
[204] Life of Hamilton, II. 230-237.
[205] Ibid.
[206] See the Address to the States, accompanying the proposed revenue
system, April 26, 1783, from the pen of Mr. Madison. Journals, VIII.
194-201.
[207] The first Continental Congress was called to meet at Philadelphia,
that being the nearest to the centre of the Union of any of the
principal cities in the United States. Succeeding Congresses had been
held there, with the exception of the period when the city was in the
possession of the enemy, in the year 1777, until, on the 21st of June,
1783, in consequence of the mutiny of the soldiers, the President was
authorized to summon the members to meet at Trenton, or Princeton, in
New Jersey, "in order that further and more effectual measures may be
taken for suppressing the present revolt, and maintaining the dignity
and authority of the United States." On the 30th, Congress assembled at
Princeton, in the halls of the college, which were tendered by its
officers for their use. In August, a proposition was made to return to
Philadelphia, and that, on the second Monday in October, Congress should
meet at Annapolis, unless in the mean time it had been ordered
otherwise. But this was not agreed to. A committee was then appointed
(in September), "to consider what jurisdiction may be proper for
Congress in the place of their permanent residence." This seems to have
been followed by propositions from several of the States, from New York
to Virginia inclusive, respecting a place for the permanent residence of
Congress, although the Journal does not state what they were. A question
was then taken (October 6), in which State buildings should be provided
and erected for the residence of Congress, beginning with New Hampshire
and proceeding with all the States in their order. Each State was
negatived in its turn. The highest number of votes given (by States)
were for New Jersey and Maryland, which had four votes each. A
resolution was then carried, "that buildings for the use of Congress be
erected on or near the banks of the Delaware, provided a suitable
district can be procured on or near the banks of said river, for a
federal town; and that the right of soil, and an exclusive or such
jurisdiction as Congress may direct, shall be vested in the United
States"; and a committee was appointed, to repair to the falls of the
Delaware, to view the country, and report a proper district for this
purpose. A variety of motions then followed, for the selection of a
place of temporary residence, but none was adopted. On the 17th of
October, a proposition was made by a delegate of Massachusetts (Mr.
Gerry), to have buildings provided for the alternate residence of
Congress in two places, with the idea of "securing the mutual confidence
and affection of the States, and preserving the federal balance of
power"; but the question was lost. Afterwards, the following resolution
was agreed to: "Whereas, there is reason to expect that the providing
buildings for the alternate residence of Congress in two places will be
productive of the most salutary effects, by securing the mutual
confidence and affections of the States, _Resolved_, That buildings be
likewise erected, for the use of Congress, at or near the lower falls of
the Potomac, or Georgetown, provided a suitable district on the banks of
the river can be procured for a federal town, and the right of soil, and
an exclusive jurisdiction, or such as Congress may direct, shall be
vested in the United States; and that until the buildings to be erected
on the banks of the Delaware and Potomac shall be prepared for the
reception of Congress, their residence shall be alternately, at equal
periods of not more than one year and not less than six months, in
Trenton and Annapolis; and the President is hereby authorized and
directed to adjourn Congress on the twelfth day of November next, to
meet at Annapolis on the twenty-sixth day of the same month, for the
despatch of public business." (Journals of Congress from June to
November, 1783.)
[208] Report of a committee appointed to devise means for procuring a
full representation in Congress, made November 1, 1783. Journals, VIII.
480-482.
[209] Hamilton's proposed Resolutions; Life, II. 230-237.
BOOK III.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF
1783 TO THE FEDERAL CONVENTION OF 1787.
CHAPTER I.
JANUARY, 1784-MAY, 1787.
DUTIES AND NECESSITIES OF CONGRESS.--REQUISITIONS ON THE
STATES.--REVENUE SYSTEM OF 1783.
The period which now claims our attention is that extending from the
Peace of 1783 to the calling of the Convention which framed the
Constitution, in 1787. It was a period full of dangers and difficulties.
The destinies of the Union seemed to be left to all the hazards arising
from a defective government and the illiberal and contracted policy of
its members. Patriotism was generally thought to consist in adhesion to
State interests, and a reluctance to intrust power to the organs of the
nation. The national obligations were therefore disregarded; treaty
stipulations remained unfulfilled; the great duty of justice failed to
be discharged; rebellion raised a dangerous and nearly successful front;
and the commerce of the country was exposed to the injurious policy of
other nations, with no means of counteracting or escaping from its
effects. At length, the people of the United States began to see danger
after they had felt it, and the growth of sounder views and higher
principles of public conduct gave to the friends of order, public
faith, and national security a controlling influence in the country, and
enabled the men, who had won for it the blessings of liberty, to
establish for it a durable and sufficient government.
Four years only elapsed, between the return of peace and the downfall of
a government which had been framed with the hope and promise of
perpetual duration;--an interval of time no longer than that during
which the people of the United States are now accustomed to witness a
change of their rulers, without injury to any principle or any form of
their institutions. But this brief interval was full of suffering and
peril. There are scarcely any evils or dangers, of a political nature,
and springing from political and social causes, to which a free people
can be exposed, which the people of the United States did not experience
during this period. That these evils and dangers did not precipitate the
country into civil war, and that the great undertaking of forming a new
and constitutional government, by delegates of the people, could be
entered upon and prosecuted, with the calmness, conciliation, and
concession essential to its success, is owing partly to the fact that
the country had scarcely recovered from the exhausting effects of the
Revolutionary struggle; but mainly to the existence of a body of
statesmen, formed during that struggle, and fitted by hard experience to
build up the government. But before their efforts and their influences
are explained, the period which developed the necessity for their
interposition must be described. He who would know what the
Constitution of the United States was designed to accomplish, must
understand the circumstances out of which it arose.
On the 3d of November, 1783, a new Congress, according to annual custom,
was assembled at Annapolis, and attended by only fifteen members, from
seven States. Two great acts awaited the attention of this
assembly;--both of an interesting and important character, both of
national concern. The one was the resignation of Washington; a solemnity
which appealed to every feeling of national gratitude and pride, and
which would seem to have demanded whatever of pomp and dignity and power
the United States could display. The other was a legislative act, which
was to give peace to the country, by the ratification of the Treaty.
Several weeks passed on, and yet the attendance was not much increased.
Washington's resignation was received, at a public audience of seven
States, represented by about twenty delegates;[210] and on the same day
letters were despatched to the other States, urging them, for the
safety, honor, and good faith of the United States, to require the
immediate attendance of their members.[211] It was not, however, until
the 14th of January that the Treaty could be ratified by the
constitutional number of nine States; and, when this took place, there
were present but three-and-twenty members.[212]
It should undoubtedly be considered, that, from the nature and form of
the government, the delegates in Congress had in some sense an
ambassadorial character, and were assembled as the representatives of
sovereign States. But with whatever dignity, real or fictitious, they
may be considered as having been clothed, the government itself was one
that created a constant tendency to the neglect of its functions, and
therefore produced great practical evils. The Articles of Confederation
provided that delegates should be annually appointed by the States, to
meet in Congress on the first Monday in November in every year; and
although they also gave to Congress the power of adjournment for a
recess, during which the government was to be devolved on a Committee of
the States, they fixed no period for the termination of a session. While
the war lasted, it had been both customary and necessary for the old
Congress, and for its successors under the Confederation, to be
perpetually in session; and this practice was continued after the peace,
with very short intervals of Committees of the States, partly from
habit, and partly in consequence of the reduction of the delegations to
the lowest constitutional number. This rendered despatch impossible, by
putting it in the power of a few members to withhold from important
matters the constitutional concurrence of nine States. Without any
reference to population by the Articles of Confederation, not less than
two nor more than seven delegates were allowed to each State; and by
casting the burden of maintaining its own delegates upon each State,
they created a strong motive for preferring the smaller number, and
often for not being represented at all. This motive became more active
after the peace, when the immediate stimulus of hostilities was
withdrawn; and it was at the same time accompanied, in most of the
States, by a great jealousy of the powers of Congress, a disinclination
to enlarge them, and a prevalent feeling that each State was sufficient
unto itself for all the purposes of government.[213] The consequence
was, that the Congress of the Confederation, from the ratification of
the Treaty of Peace to the adoption of the Constitution, although
entitled to ninety-one members, was seldom attended by one third of that
number; and the state of the representation was sometimes so low, that
one eighth of the whole number present could, under the constitutional
rule, negative the most important measures.[214]
Such was the government which was now called to provide for the payment
of at least the interest on the public debts, and to procure the means
for its own support; to carry out the Treaty of Peace, and secure to
the country its advantages; to complete the cessions of the Western
lands, and provide for their settlement and government; to guard the
commerce of the country against the hostile policy of other nations; to
secure to each State the forms and principles of a republican
government; to extend and secure the relations of the country with
foreign powers; and to preserve and perpetuate the Union. By tracing the
history of its efforts and its failures with regard to these great
objects, we may understand the principal causes which brought about the
conviction on the part of the people of the United States, that another
and a stronger government must take the place of the Confederation.
It was ascertained in April, 1784, that a sum exceeding three millions
of dollars would be wanted to pay the arrears of interest, and to meet
the interest and current expenses of the public service for the
year.[215] Two sources only could be looked to for this supply. It must
either be obtained by requisitions on the States, according to the old
rule of the Confederation, or from the new duties and taxes proposed by
the revenue system of 1783. But that proposal was still under the
consideration of the State legislatures; some of them having as yet
acceded to the impost only, and others having decided neither on the
impost nor on the supplementary taxes. Some time must therefore elapse
before the final confirmation of this system, even if its final
confirmation were probable; and, after it should have been confirmed,
further time would be requisite to bring it into operation. It was quite
clear, therefore, that other measures must be resorted to. Requisitions
presented the sole resource. But in what mode were they to be made? The
preceding Congress had offered two recommendations to the States on the
subject of the rule of the Confederation, which directed that the quotas
of the several States should be apportioned according to the value of
their lands. The Congress of 1783, in order to give this rule a fair
trial, had recommended to the States to make returns of their lands,
buildings, and inhabitants;[216] but, apprehending that the
insufficiency of the rule would immediately show itself, they had
followed this recommendation with another, to change the basis of
contribution from land to numbers of inhabitants.[217] Both of these
propositions were still under the consideration of the State
legislatures, and four States only had acceded to them.[218] A new
requisition, therefore, if made at all, must be made under the old rule
of the Confederation, and with entirely imperfect means of making it
with justice and equality. It was found, however, that large arrears
were still due from the States, of the old requisitions made during the
war.[219] A new call upon them to pay one half of these arrears,
deducting therefrom the amount of their payments to the close of the
year, would, if complied with, produce a sum nearly sufficient for the
wants of the government. This resource was accordingly tried.[220]
In the year 1785, three millions, it was ascertained, would be required
for the service of the year. A renewed call was made for the remaining
unpaid moiety of the old requisition of eight millions, and for the
whole of the old requisition of two millions; but, considering that the
public faith required Congress to continue their annual demand for
money, they issued a new requisition for three millions, and adjusted it
according to the best information they could obtain.[221]
In the year 1786, a sum of more than three millions was wanted for the
current demands on the treasury, and a new requisition was made for it,
under the old rule of the Confederation.[222] Two of the States, Rhode
Island and New Jersey, thereupon passed acts, making their own paper
currency receivable on all arrears of taxes due to the United States,
and proposing to pay their quotas in such currency.[223]
But the entire inadequacy of this source of supply to maintain the
federal government, and to discharge the annual public engagements, had
now become but too apparent. From the 1st of November, 1781, to the 1st
of January, 1786, less than two and a half millions of dollars had been
received from requisitions made during that period, amounting to more
than ten millions.[224] For the last fourteen months of that interval,
the average receipts from requisitions amounted to less than four
hundred thousand dollars per annum, while the interest alone due on the
foreign debt was more than half a million; and, in the course of each of
the nine following years, the average sum of one million, annually,
would become due by instalments on the principal of that debt.[225] In
addition to this, the interest on the domestic debt; the security of the
navigation and commerce of the country against the Barbary powers; the
immediate protection of the people dwelling on the frontier from the
savages; the establishment of military magazines in different parts of
the Union, quite indispensable to the public safety; the maintenance of
the federal government at home, and the support of the public servants
abroad,--each and all depended upon the contribution of the States under
the annual requisitions, and were each and all likely to be involved in
a common failure and ruin.[226]
There can be no doubt that the continuance of the practice of making
requisitions, after the proposal of the revenue system of 1783, had some
tendency to prevent the adoption of that system by the States. But there
was no other alternative within the constitutional reach of Congress;
and in the mean time, the revenue system, submitted as it necessarily
was to the legislatures of thirteen different States, was, as far as it
was assented to, embarrassed with the most discordant and irreconcilable
provisions. It was ascertained in February, 1786, that seven of the
States had granted the impost part of the system, in such a manner,
that, if the other six States had made similar grants, the plan of the
general impost might have been immediately put into operation.[227] Two
of the other States had also granted the impost, but had embarrassed
their grants with provisos, which suspended their operation until all
the other States should have passed laws in full conformity with the
whole system.[228] Two other States had fully acceded to the system in
all its parts;[229] but four others had not decided in favor of any part
of it.[230]
No member of the Confederacy had, at this time, suggested to Congress
any reasonable objection to the principles of the system; and the
contradictory provisions by which their assent to it had been clogged,
present a striking proof of the inherent difficulties of obtaining any
important constitutional change from the legislatures of the States. The
government was founded upon a principle, by which all its powers were
derived from the States in their corporate capacities; in other words,
it was a government created by, and deriving its authority from, the
governments of the States. They alone could change the fundamental law
of its organization; and they were actuated by such motives and
jealousies, as rendered a unanimous assent to any change a great
improbability. Still, the Congress of 1786 hoped that, by a clear and
explicit declaration of the true position of the country, the requisite
compliance of the States might be obtained. They accordingly made known,
in the most solemn manner, the public embarrassments, and declared that
the crisis had arrived, when the people of the United States must decide
whether they were to continue to rank as a nation, by maintaining the
public faith at home and abroad; or whether, for want of timely exertion
in establishing a general revenue, they would hazard the existence of
the Union, and the great national privileges which they had fought to
obtain.[231]
Under the influence of this urgent representation, all the States,
except New York, passed acts granting the impost, and vesting the power
to collect it in Congress, pursuant to the recommendations of 1783, but
upon the condition that it should not be in force until all the States
had granted it in the same manner. The State of New York passed an
act[232], reserving to itself the sole power of levying and collecting
the impost; making the collectors amenable to and removable by the
State, and not by Congress; and making the duties receivable in specie
or bills of credit, at the option of the importer. Such a departure from
the plan suggested by Congress, and adopted by the other States, of
course made the whole system inoperative in the other States, and there
remained no possibility of procuring its adoption, but by inducing the
State of New York to reconsider its determination. All hope of meeting
the public engagements, and of carrying on the government, now turned
upon the action of a single State.
The principal argument made use of, by those who supported the conduct
of New York, was, that Congress, being a single body, might misapply the
money arising from the duties. An answer to this pretence, from the pen
of Hamilton, declared that the interests and liberties of the people
were not less safe in the hands of those whom they had delegated to
represent them for one year in Congress, than they were in the hands of
those whom they had delegated to represent them for one or four years in
the legislature of the State; that all government implies trust, and
that every government must be trusted so far as it is necessary to
enable it to attain the ends for which it is instituted, without which
insult and oppression from abroad, and confusion and convulsion at home,
must ensue[233]. The real motive, however, with those who ruled the
counsels of New York at this period, was a hope of the commercial
aggrandizement of the State; and the jealousies and fears of national
power, which were widely prevalent, were diligently employed to defeat
the system proposed by Congress.
After the passage of the act of New York, and the adjournment of the
legislature, Congress earnestly recommended to the executive of that
State to convene the legislature again, to take into its consideration
the recommendation of the revenue system, for the purpose of granting
the impost to the United States, in conformity with the grants of
other States, so as to enable the United States to carry it into
immediate effect[234]. The Governor declined to accede to this
recommendation.[235] Congress repeated it, declaring that the critical
and embarrassed state of the finances required that the impost should
be carried into immediate operation, and expressing their opinion,
that the occasion was sufficiently important and extraordinary for
them to request that the legislature should be specially
convened.[236] The executive of New York again refused the request of
Congress, and the fate of the impost system remained suspended until
the meeting of the legislature, at its regular session in January,
1787. It was never adopted by that State, and consequently never took
effect.
FOOTNOTES:
[210] The Journals give the following account of General Washington's
resignation:--
"According to order, his Excellency the Commander-in-chief was admitted
to a public audience, and being seated, the President, after a pause,
informed him that the United States in Congress assembled were prepared
to receive his communications; whereupon he arose and addressed as
follows: 'MR. PRESIDENT,--The great events on which my resignation
depended having at length taken place, I have now the honor of offering
my sincere congratulations to Congress, and of presenting myself before
them to surrender into their hands the trust committed to me, and to
claim the indulgence of retiring from the service of my country. Happy
in the confirmation of our independence and sovereignty, and pleased
with the opportunity afforded the United States of becoming a
respectable nation, I resign with satisfaction the appointment I
accepted with diffidence; a diffidence in my abilities to accomplish so
arduous a task; which, however, was superseded by a confidence in the
rectitude of our cause, the support of the supreme power of the Union,
and the patronage of Heaven. The successful termination of the war has
verified the most sanguine expectations; and my gratitude for the
interposition of Providence, and the assistance I have received from my
countrymen, increases with every review of the momentous contest. While
I repeat my obligations to the army in general, I should do injustice to
my own feelings not to acknowledge, in this place, the peculiar services
and distinguished merits of the gentlemen who have been attached to my
person during the war. It was impossible the choice of confidential
officers to compose my family should have been more fortunate. Permit
me, sir, to recommend in particular those who have continued in the
service to the present moment, as worthy of the favorable notice and
patronage of Congress. I consider it an indispensable duty to close this
last act of my official life by commending the interests of our dearest
country to the protection of Almighty God, and those who have the
superintendence of them to his holy keeping. Having now finished the
work assigned me, I retire from the great theatre of action, and,
bidding an affectionate farewell to this august body, under whose orders
I have so long acted, I here offer my commission, and take my leave of
all the employments of public life.' He then advanced and delivered to
the President his commission, with a copy of his address, and having
resumed his place, the President (Thomas Mifflin) returned him the
following answer: 'SIR,--The United States in Congress assembled receive
with emotions too affecting for utterance the solemn resignation of the
authorities under which you have led their troops with success through a
perilous and doubtful war. Called upon by your country to defend its
invaded rights, you accepted the sacred charge, before it had formed
alliances, and whilst it was without funds or a government to support
you. You have conducted the great military contest with wisdom and
fortitude, invariably regarding the rights of the civil power through
all disasters and changes. You have, by the love and confidence of your
fellow-citizens, enabled them to display their martial genius, and
transmit their fame to posterity. You have persevered, till these United
States, aided by a magnanimous king and nation, have been enabled, under
a just Providence, to close the war in freedom, safety, and
independence; on which happy event we sincerely join you in
congratulations. Having defended the standard of liberty in this New
World, having taught a lesson useful to those who inflict and to those
who feel oppression, you retire from the great theatre of action with
the blessings of your fellow-citizens; but the glory of your virtues
will not terminate with your military command; it will continue to
animate remotest ages. We feel with you our obligations to the army in
general, and will particularly charge ourselves with the interests of
those confidential officers who have attended your person to this
affecting moment. We join you in commending the interests of our dearest
country to the protection of Almighty God, beseeching him to dispose the
hearts and minds of its citizens to improve the opportunity afforded
them of becoming a happy and respectable nation. And for you we address
to him our earnest prayers that a life so beloved may be fostered with
all his care; that your days may be happy as they have been illustrious;
and that he will finally give you that reward which this world cannot
give." Journals, IX. 12, 13. December 22, 1783.
[211] Ibid.
[212] Journals, IX. 30. January 14, 1784.
[213] See Washington's letter to Governor Harrison, of the date of
January 18, 1784. Writings, IX. 11.
[214] Twenty-three members voted on the ratification of the Treaty,
January 14, 1784. On the 19th of April of the same year, the same number
being present, eleven States only being represented, and nine of these
having only two members each, the following resolution was passed:
"_Resolved_, That the legislatures of the several States be informed,
that, whilst they are respectively represented in Congress by two
delegates only, such a unanimity for conducting the most important
public concerns is necessary as can be rarely expected; that if each of
the thirteen States should be represented by two members, five out of
twenty-six, being only a fifth of the whole, may negative any measures
requiring the voice of nine States; that of eleven States now on the
floor of Congress, nine being represented by only two members from each,
it is in the power of three out of twenty-five, making only one eighth
of the whole, to negative such a measure, notwithstanding that by the
Articles of Confederation the dissent of five out of thirteen, being
more than one third of the number, is necessary for such a negative;
that in a representation of three members from each State, not less than
ten of thirty-nine could so negative a matter requiring the voice of
nine States; that, from facts under the observation of Congress, they
are clearly convinced that a representation of two members from the
several States is extremely injurious, by producing delays, and for this
reason is likewise much more expensive than a general representation of
three members from each State; that therefore Congress conceive it to be
indispensably necessary, and earnestly recommend, that each State, at
all times when Congress are sitting, be hereafter represented by three
members at least; as the most injurious consequences may be expected
from the want of such representation." At the time when the report of
the Convention, transmitting the Constitution, was received (September
28, 1787), there were thirty-three members in attendance, from twelve
States. Rhode Island was not represented.
[215] The sum reported by a committee, and finally agreed to be
necessary, was $3,812,539.33. Journals, IX. 171. April 27, 1784.
[216] Journals, VIII. 129. February 17, 1783.
[217] Ibid. 198. April 26, 1783.
[218] Connecticut, New Jersey, Pennsylvania, and South Carolina.
[219] Of the old requisition of $8,000,000, made October 30, 1781, only
$1,486,511.71 had been paid by all the States before December 31, 1783.
[220] Journals, IX. 171-179. April 27, 1784.
[221] Journals, X. 325-334. September 27, 1785.
[222] Journals, XI. 167. August 2, 1786.
[223] Ibid. 224. September 18, 1786. Upon this attempt of Rhode Island
and New Jersey to pay their proportions in their own paper currency, the
report of a committee declared, "That, to admit the receipt of bills of
credit, issued under the authority of an individual State, in discharge
of their specie proportions of a requisition, would defeat its object,
as the said bills do not circulate out of the limits of the State in
which they are emitted, and because a paper medium of any State, however
well funded, cannot, either in the extensiveness of its circulation, or
in the course of its exchange, be equally valuable with gold and silver.
That if the bills of credit of the States of Rhode Island and New Jersey
were to be received from those States in discharge of federal taxes,
upon the principles of equal justice, bills emitted by any other States
must be received from them also in payment of their proportions, and
thereby, instead of the requisitions yielding a sum in actual money,
nothing but paper would be brought into the federal treasury, which
would be wholly inapplicable to the payment of any part of the interest
or principal of the foreign debt, or the maintenance of the government
of the United States."
[224] Journals, XI. 34-40. February 15, 1786.
[225] Ibid.
[226] Journals, XI. 34-40. February 15, 1786.
[227] New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia,
North Carolina, and South Carolina.
[228] Pennsylvania and Delaware.
[229] Delaware and North Carolina.
[230] Rhode Island, New York, Maryland, and Georgia.
[231] The report on this occasion (February 15, 1786), drawn by Rufus
King, declared, "that the requisitions of Congress for eight years past
have been so irregular in their operation, so uncertain in their
collection, and so evidently unproductive, that a reliance on them in
future as a source from whence moneys are to be drawn to discharge the
engagements of the Confederacy, definite as they are in time and amount,
would be not less dishonorable to the understandings of those who
entertain such confidence, than it would be dangerous to the welfare and
peace of the Union. The committee are therefore seriously impressed with
the indispensable obligation that Congress are under, of representing in
the immediate and impartial consideration of the several States the
utter impossibility of maintaining and preserving the faith of the
federal government by temporary requisitions on the States, and the
consequent necessity of an early and complete accession of all the
States to the revenue system of the 18th of April, 1783."
[232] May 4, 1786.
[233] Life of Hamilton, II. 385.
[234] August 11, 1786.
[235] The ground of his refusal was, "that he had not the power to
convene the legislature before the time fixed by law for their stated
meeting, except upon '_extraordinary occasions_,' and as the present
business had already been particularly laid before them, and so recently
as at their last session received their determination, it cannot come
within that description." Life of Hamilton, II. 389.
[236] August 23, 1786.
CHAPTER II.
1784-1787.
INFRACTIONS OF THE TREATY OF PEACE.
The Treaty of Peace, ratified on the 14th of January, 1784, contained
provisions of great practical and immediate importance. One of its chief
objects, on the part of the United States, was, of course, to effect the
immediate withdrawal of the British troops, and of every sign of British
authority, from the country whose independence it acknowledged. A
stipulation was accordingly introduced, by which the King bound himself,
with all convenient speed, and without causing any destruction, or
carrying away any negroes or other property of the American inhabitants,
to withdraw all his armies, garrisons, and fleets from the United
States, and from every post, place, and harbor within the same. Although
the ratification of the Treaty was followed by the departure of the
British forces from the Atlantic coast, many important posts in the
Western country, within the incontestable limits of the United States,
with a considerable territory around each of them, were still
retained[237].
On the part of England, it was of great consequence to secure to British
subjects the property, and rights of property, of the enjoyment of which
the state of hostilities had deprived them. A war between colonies and
the parent state, which had sundered the closest intimacies of social
and commercial intercourse, involved of necessity vast private
interests. There were two large classes of English creditors, whose
interests required protection; the British merchants to whom debts had
been contracted before the Revolution, and the Tories, who had been
obliged to depart from the United States, leaving debts due to them, and
landed property, which had been seized. Clear and explicit stipulations
were inserted in the Treaty, in order to protect these interests. It was
provided that creditors on either side should meet with no lawful
impediments to the recovery of the full value in sterling money of all
_bona fide_ debts contracted before the date of the Treaty.[238] It was
also agreed, that Congress should earnestly recommend to the
legislatures of the respective States to provide for the restitution of
all estates, rights, and properties, which had been confiscated,
belonging to real British subjects, and to persons resident in districts
in the possession of his Majesty's arms, and who had not borne arms
against the United States; that persons of any other description should
have free liberty to go into any of the States, and remain for the
period of twelve months unmolested in their endeavors to obtain the
restitution of their property and rights which had been confiscated;
that Congress should recommend to the States a reconsideration and
revision of all their confiscation laws, and a restoration of the rights
and property of the last-mentioned persons, on their refunding the _bona
fide_ price which any purchaser might have given for them since the
confiscation. It was also agreed, that all persons having any interest
in confiscated lands, either by debts, marriage settlements, or
otherwise, should meet with no lawful impediment in the prosecution of
their just rights.[239]
It was further provided, that there should be no future confiscations
made, nor any prosecutions commenced against any person on account of
the part he might have taken in the war, and that no person should, on
that account, suffer any future loss or damage, either in person,
liberty, or property, and that those who might be in confinement on such
charges, at the time of the ratification of the Treaty in America,
should be immediately set at liberty, and the prosecutions be
discontinued.[240]
These provisions related to a great subject, with which, in the existing
political system of this country, it was difficult to deal. The action
of the States, with regard to some of the interests involved in these
stipulations, had been irregular from an early period of the war. The
Revolutionary Congress, on the commencement of hostilities, had suffered
the opportunity of asserting their rightful control over the subject of
alien interests, except as to property found on the high seas, to pass
away; and the consequence was, that the States had, on some points,
usurped an authority which belonged to the Union. A Union, founded in
compact, and vesting the rights of war and peace in Congress, was formed
in 1775; and from that time the Colonies, or, as they afterwards became,
States, were never rightfully capable of passing laws to sequester or
confiscate the debts or property of a national enemy[241]. After the
great acts of national sovereignty which took place in 1775-6, a British
subject could not, with any propriety, be considered as the enemy of
Massachusetts, or of Virginia; he was the enemy of the United States,
and by that authority alone, as the belligerent, was his property, in
strictness, liable to be seized, or the debts due to him sequestered.
But neither the Revolutionary Congress, nor that of the Confederation,
appear to have ever exercised the power of confiscating the debts or
property of British subjects, within the States, or to have recommended
such confiscation to the States themselves[242]. On the other hand, they
did not interfere when the States saw fit to do it.
With regard to those inhabitants of the States who, adhering to the
British crown, had abandoned the country, and left property behind them,
it cannot so clearly be affirmed that the States should not have dealt
with their persons or property. Congress, as we have seen, at an early
period of the war, committed the whole subject of restraining the
persons of the Tories to the Colonies or States; and as Congress never
assumed or exercised any jurisdiction over their property, it was of
course left to be dealt with by the legislatures of the States, to whom
Congress had declared that their several inhabitants owed
allegiance[243]. But as these persons, by adhering to the crown, might
claim of the crown the rights and protection of British subjects, the
propriety of confiscating or withholding their property would remain for
solution, at the negotiation of the Treaty of Peace, as a question of
general justice and equity, rather than of public law.
The interests of both of these classes of persons were too important
to be overlooked. Three millions sterling were due from the
inhabitants of the Colonies to merchants in Great Britain, at the
commencement of the war. At the return of peace, the laws of five of
the States were found either to prohibit the recovery of the
principal, or to suspend its collection, or to prohibit the recovery
of interest, or to make land a good payment in place of money.[244]
The purpose of the Treaty was to declare, that all _bona fide_ debts,
contracted before the date of the Treaty, and due to citizens of
either country, remained unextinguished by the war; and consequently,
that interest, when agreed to be paid, or payable by the custom, or
demandable as damages for delay of payment, was justly due. Over this
whole subject of foreign debts, the national sovereignty, of right,
had exclusive control; for confiscation of the property of a national
enemy belongs exclusively to the power exercising the rights of war;
and therefore whatever State laws might have been passed during the
war, exercising rights which belonged to the national sovereign, they
could have no validity when that sovereign came to resume its control
over the subject, and to stipulate that the right of confiscation, if
it ever existed, should not be exercised. The State laws, however,
existed, and remained in conflict with the Treaty, for several years,
producing consequences to which we shall presently advert.
The fifth article of the Treaty was infringed by an act passed by the
State of New York, authorizing actions for rent to be brought by persons
who had been compelled to leave their lands and houses by the enemy,
against those who had occupied them while the enemy were in possession,
and declaring that no military order or command of the enemy should be
pleaded in justification of such occupation.[245]
The sixth article was also violated by an act of the same State, which
made those inhabitants who had adhered to the enemy, if found within the
State, guilty of misprision of treason, and rendered them incapable of
holding office, or of voting at elections.[246]
The powers of the government were entirely inadequate to meet this state
of things. The Confederation gave to the United States in Congress
assembled the sole and exclusive right of determining on peace and war,
and of entering into treaties and alliances. The nature of the
sovereignty thus established made a treaty the law of the land, and
binding upon every member of the Union; but there existed no means of
enforcing the obligation. If the legislatures of the States passed laws
restraining or interfering with the provisions of a treaty, Congress
could only declare that they ought to be, and recommend that they should
be, repealed. The simple and effectual intervention of a national
judiciary, clothed with the power of declaring void any State
legislation that conflicted with the national sovereignty, and of giving
the means of enforcing all rights which that sovereignty had guaranteed
by compact with a foreign power, did not exist. Resort, it is true,
could be had to the State tribunals; and, on one memorable occasion,
such resort was had to them with success. But the legislative power
assailed the independence of the judiciary, and indignantly declared a
decision, made with fairness by a competent tribunal, subversive of law
and good order, because it recognized the paramount authority of a
treaty over a statute of the State.[247]
The effect of such State legislation upon the relations of the two
countries was direct and mischievous. The Treaty of Peace was designed,
and was adapted, to produce a fair and speedy adjustment of those
relations, upon principles of equity and justice. But its obligations
were reciprocal, and it could not execute itself. It was made, on the
one side, by a power capable of performing, but also capable of waiting
for the performance of the obligations which rested upon the other
contracting party. On the other side, it was made by a power possessed
of very imperfect means of performance, yet standing in constant need of
the benefit which a full compliance with its obligations would insure.
After the lapse of three years from the signature of the preliminary
articles, and of more than two years from that of the definitive Treaty,
the military posts in the Western country were still held by British
garrisons, avowedly on account of the infractions of the Treaty on our
part. The Minister of the United States at St. James's was told, in
answer to his complaints, that one party could not be obliged to a
strict observance of the engagements of a treaty, and the other remain
free to deviate from its obligations; and that whenever the United
States should manifest a real determination to fulfil their part of the
Treaty, Great Britain would be ready to carry every article of it into
complete effect.[248] An investigation of the whole subject, therefore,
became necessary, and Congress directed the Secretary of Foreign Affairs
to make inquiry into the precise state of things. His report ascertained
that the fourth and fifth articles of the Treaty had been constantly
violated on our part by legislative acts still in existence and
operation; that on the part of England, the seventh article had been
violated, by her continuing to hold the posts from which she had agreed
to withdraw her garrisons, and by carrying away a considerable body of
negroes, the property of American inhabitants, at the time of the
evacuation of New York.[249]
The serious question recurred,--what was to be done? The United States
had neither committed nor approved of any violation of the Treaty; but
an appeal was made to their justice, relative to the conduct of
particular States, for which they were obliged eventually to answer.
They could only resolve and recommend; and accordingly, after having
declared that the legislatures of the States could not, of right, do any
thing to explain, interpret, or limit the operation of a treaty,
Congress recommended to the States to pass a general law, repealing all
their former acts that might be repugnant to the Treaty, and leaving to
their courts of justice to decide causes that might arise under it,
according to its true intent and meaning, by determining what acts
contravened its provisions.[250] This recommendation manifestly left the
interests of the Union exposed to two hazards; the one, that the
legislatures of the States might not pass the repealing statute, which
would submit the proper questions to their courts, and the other, that
their courts might not decide with firmness and impartiality between the
policy of the State, on the one hand, and the interests of foreigners
and obnoxious Tories, on the other.
But this was all that could be done, and partial success only followed
the effort. Most of the States passed acts, in compliance with the
recommendation of Congress, to repeal their laws which prevented the
recovery of British debts.[251] But the State of Virginia, although it
passed such an act, suspended its operation, until the Governor of the
State should issue a proclamation, giving notice that Great Britain had
delivered up the Western posts, and was taking measures for the further
fulfilment of the Treaty, by delivering up the negroes belonging to the
citizens of that State, which had been carried away, or by making
compensation for their value.[252] The two countries were thus brought
to a stand, in their efforts to adjust the matters in dispute, and the
Western posts remained in the occupation of British garrisons, inflaming
the hostile temper of the Indian tribes, and enhancing the difficulty of
settling the vacant lands in the fertile region of the Great Lakes.[253]
FOOTNOTES:
[237] Secret Journals of Congress, IV. 186, 187.
[238] Article IV.
[239] Article V.
[240] Article VI.
[241] See the Report made to Congress on this subject by Mr. Jay,
Secretary of Foreign Affairs, October, 1786. Secret Journals, IV. 209.
[242] Ibid.
[243] Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note.
[244] An act passed by the legislature of Massachusetts, November 9,
1784, suspended judgment for interest on British debts, until Congress
should have put a construction upon the Treaty declaring that it was
due. An act of the State of New York, of July 12, 1782, restrained the
collection of debts due to persons within the enemy's lines.
Pennsylvania, soon after the peace, passed a law restraining the levy of
executions. Virginia, at the time of the peace, had existing laws
inhibiting the recovery of British debts. South Carolina had made land a
good payment, in place of money. (See Mr. Jay's Report.)
[245] Passed March 17, 1783. Secret Journals, IV. 267.
[246] Passed May 12, 1784, after the Treaty had been ratified. Secret
Journals, IV. 269-274.
[247] This happened in New York, in a case under the "Trespass Act,"
where a suit was brought in the Mayor's Court of the City of New York,
"to recover the rents of property held by the defendant under an order
of Sir Henry Clinton." Hamilton, in the defence of this case, contended,
with great power, that the act was a violation of the Treaty, and the
court sustained his position. But the legislature passed resolves,
declaring the decision to be subversive of law and good order, and
recommending the appointing power "to appoint such persons Mayor and
Recorder of New York as will govern themselves by the known law of the
land." Life of Hamilton, II. 244, 245.
[248] Mr. John Adams was sent as the first Minister of the United States
to the Court of St. James's in 1785. He received this reply to a
memorial which he addressed to the British government, on the subject of
the Western posts, in February, 1786. Secret Journals, IV. 187.
[249] Secret Journals, IV. 209.
[250] March 21, 1787.
[251] New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware,
Maryland, Virginia, and North Carolina passed such acts.
[252] Pitkin's History of the United States, II. 198.
[253] Marshall's Life of Washington, V. 67, 68.
CHAPTER III.
1786-1787.
NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE
GOVERNMENTS.--SHAYS'S REBELLION IN MASSACHUSETTS, AND ITS KINDRED
DISTURBANCES.
No federative government can be of great permanent value, which is not
so constructed that it may stand, in some measure, as the common
sovereign of its members, able to protect them against internal
disorders, as well as against external assaults. The Confederation
undertook but one of these great duties. It was formed at a time when
the war with England was the great object of concern to the revolted
Colonies, and when they felt only the exigencies which that war created.
Hence its most important powers, as well as its leading purpose,
concerned the common cause of resistance to a foreign domination. A
federal league of States independent of each other, formed principally
for mutual defence against a common enemy, was all that succeeded to the
general superintending power of the British crown, by which the internal
affairs of each of them had always been regulated and controlled, in the
last resort. When the tie was broken by which they had been held to the
parent state, each of them created for itself a new government, resting
for its basis on the popular will, and deriving its authority directly
from the people; but none of them provided for the creation of a power,
external to itself, which might stand as the guarantor and protector of
their new institutions, and secure the principles on which they rested
against violence and overthrow. Yet the constitutions thus formed, from
their peculiar nature, eminently needed the safeguards which such a
power could afford.
These constitutions were admirably constructed. They contained
principles imperfectly known to the ancient governments; found in modern
times only in the government of England; and applied there with far less
consistency and completeness. They embraced the regular distribution of
political power into distinct departments; legislative checks and
balances, by means of two coördinate branches of the legislature; a
judiciary in general holding office during good behavior; and the
representation of the people in the legislature, by deputies of their
own actual election, in which the theory of such representation was more
perfectly carried into practice than it had ever been in the country
from which it was derived. But the fundamental principle on which they
all rested, and without which they could not maintain existence,
required means of defence. They were established upon the great
doctrine, that it is the right of every political society to govern
itself, and for the purposes of such self-government, to create such
constitutions and ordain such fundamental laws as its own judgment and
its own intelligent choice may find best suited to its own interests.
But society can act only by an expression of the aggregate will of its
members; and as there may be members who dissent from the views and
determinations of the great mass of society, and it is therefore
necessary to decide with whom the power of compelling obedience
resides,--since there must be obedience in order that there may be
peace,--nature and reason have determined that this power is to reside
with a majority of the members. The American constitutions, therefore,
are founded wholly upon the principle, that a majority expresses the
will of the whole society, and may establish, change, and abrogate forms
of government at its pleasure.[254] It follows, as a necessary deduction
from this fundamental doctrine, that so soon as society has acted in the
formation and establishment of a government, upon this principle, no
change can take place, but by a new expression of the will of society
through the voice of a majority; and whether a majority desires or has
actually decreed a change, is a fact that must be made certain, and can
only be made certain in one of two modes,--either by the evidence and
through the channels which the society has previously ordained for this
purpose, or by the submission of all its members to a violent and
successful revolution.
The first constitution of Massachusetts did not designate any mode in
which it was to be amended or changed. But no peaceable change can take
place in any government founded on the expressed will of a majority of
the people, consistently with the principle on which it had been
established, until it has been ascertained, in some mode, that a change
is demanded by the same authority. The vital importance of ascertaining
this fact with precision was not so clearly perceived, at that early
period, as it is now.
Seizing upon the newly established doctrine, which made them the sources
of all political power, the people did not at once apprehend the rule
which preserves and upholds that power, and makes the doctrine itself
both practicable and safe. Hence, when troubles arose, individuals were
led to suppose that they had only to declare a grievance, to demand a
change, and to compel a compliance with their demand by force. So far as
they reasoned at all, they persuaded themselves that, as their
government was the creation of the people, by their own direct act,
bodies of the people could assemble in their primary capacity, and, by
obstructing any of its functions which they connected with a particular
grievance, produce a reform, which the people have always a right to
make. By overlooking, in this manner, the only safe and legitimate mode
in which the popular will can be really ascertained, they passed into
the mischiefs of anarchy and rebellion, mistaking the voices of a
minority for the ascertained will of society.
To these tendencies, the recently established governments of New
England, where the spirit of liberty was most vigorous, could oppose no
efficient check; while, in any open outbreak, they were without any
external defender, on whose power they could lean. The Confederation
succeeded to the Revolutionary Congress, as we have more than once had
occasion to observe, with less power than its predecessor might have
exercised. It was formed by a written constitution, yet it was, strictly
speaking, scarcely a government. It was a close union of the States; but
it was a union from which all powers had been jealously withheld which
would have enabled it to interfere with vigor and success between an
insurgent minority of the people of a State and its lawful rulers. The
Revolutionary Congress was once possessed of such large, indefinite
powers, that, upon principles of public necessity, it might have
assumed, in a great emergency, to hold a direct relation to the internal
concerns of any Colony. It was, in fact, looked to, in some degree, for
direction in the formation of the State governments, after it had
broken the bonds of colonial allegiance to the English crown; and it
might very properly have undertaken to support the governments whose
establishment it had recommended. But such a relation between the early
States and the continental power, though it certainly existed in 1776,
was soon lost in the independent and jealous attitude which they began
to occupy, and the Union rapidly assumed a position, where the character
of sovereignty which it appeared to wear when it promulgated the
Declaration of Independence was scarcely to be discerned. At no period
in the history of the Confederation did it act upon the internal
concerns or condition of a State. Its written articles of union hardly
admitted of a construction which would have enabled it to do so, and
certainly contained no express delegation of such a power.
At the same time, some of the State governments, during the period of
which we are treating, were singularly exposed to the dangers of
anarchy. None of them had any standing forces of any consequence, three
years after the peace, and the New England States had no military forces
whatever but their militia. No State could call upon its neighbors for
aid in quelling an insurrection, for their militia would not have obeyed
the summons, if it had been issued; and no State could call upon the
federal government, in such an emergency, with any certainty of success
in the application.[255]
In such a state of things, the year 1786 witnessed an insurrection in
Massachusetts of a very dangerous character, which, from the fortunate
circumstance that her counsels were then guided by a man of singular
energy and firmness of character, she was just able to subdue. The
remote causes of this insurrection lie too far from the path of our main
subject to be more than summarily stated.
At the close of the Revolutionary war, the State of Massachusetts was
oppressed with an enormous debt. At the breaking out of that war, the
debt of the Colony was less than one hundred thousand pounds. The
private debt of the State, in the year 1786, was one million three
hundred thousand pounds, besides two hundred and fifty thousand pounds
due to the officers and soldiers of the State line of the Revolutionary
army. The State's proportion of the federal debt was not less than one
million and a half of pounds.[256] According to the customary mode of
taxation, one third of the whole debt was to be paid by the ratable
polls, which scarcely exceeded ninety thousand.[257] The Revolution had
made the people of Massachusetts familiar with the great general
doctrines of liberty and human rights; but it had given them little
insight into the principles of revenue and finance, and little
acquaintance with the rules of public economy. No sufficient means,
therefore, to relieve the people from direct taxation, by encouraging a
revival of trade and at the same time drawing from it a revenue, were
devised by the legislature. The exports of the State, moreover, had
suffered a fearful diminution. The fisheries, which had been a fruitful
source of prosperity to the colony, had been nearly destroyed by the
war, and the markets of the West Indies and of Europe were now closed to
the products of this lucrative industry, by which wealth had formerly
been drawn from the wastes of the ocean. The State had scarcely any
other commodity to exchange for the precious metals in foreign commerce.
Its agriculture yielded only a scanty support to its population, if it
yielded so much; its manufactures were in a languishing condition; and
its carrying trade had been driven from the seas during the war, and
was afterwards annihilated by the oppressive policy of England, which
succeeded the Peace. The people were every year growing poorer than they
had been the year before, and taxes, onerous taxes, beyond their
resources and always odious, were pressing upon them with a constantly
increasing accumulation, from which the political state of the country
seemed to promise no relief.[258]
But the demand of the tax-gatherer was not the sole burden which
individuals had to encounter. Private debts had accumulated during the
war, in almost as large a ratio as the public obligations. The
collection of such debts had been generally suspended, while the
struggle for political freedom was going on; but that struggle being
over, creditors necessarily became active, and were often obliged to be
severe. Suits were multiplied in the courts of law beyond all former
precedent, and the first effect of this sudden influx of litigation was
to bring popular odium upon the whole machinery of justice. In a state
of society approaching so nearly to a democracy, the class of debtors,
if numerous, must be politically formidable. They had begun to be so
before the close of the war. Their clamors and the supposed necessity of
the case led the legislature, in 1782, to a violation of principle, in a
law known as the Tender Act, by which executions for debt might be
satisfied by certain articles of property, to be taken at an
appraisement. This law was limited in its operation to one year; but in
the course of that year it taught the debtors their strength, and gave
the first signal for an attack upon property. A levelling, licentious
spirit, a restless desire for change, and a disposition to throw down
the barriers of private rights, at length broke forth in conventions,
which first voted themselves to be the people, and then declared their
proceedings to be constitutional. At these assemblies, the doctrine was
publicly broached, that property ought to be common, because all had
aided in saving it from confiscation by the power of England. Taxes were
voted to be unnecessary burdens, the courts of justice to be intolerable
grievances, and the legal profession a nuisance. A revision of the
constitution was demanded, in order to abolish the Senate, reform the
representation in the House, and make all the civil officers of the
government eligible by the people.
A passive declaration of their grievances did not, however, content the
disaffected citizens of Massachusetts. They proceeded to enforce their
demands. The courts of justice were the nearest objects for attack, as
well as the most immediately connected with the chief objects of their
complaints. Armed mobs surrounded the court-houses in several counties,
and sometimes effectually obstructed the sessions of the courts. These
acts were repeated, until, in the autumn of 1786, the insurrection broke
out in a formidable manner in the western part of the State. The
insurgents actually embodied, and in arms against the government, in the
month of December, in the counties of Worcester and Hampshire, numbered
about fifteen hundred men, and were headed by one Daniel Shays, who had
been a captain in the continental army.[259]
The executive chair of the State was at that time filled by James
Bowdoin; a statesman, firm, prudent, of high principle, and devoted to
the cause of constitutional order. In the first stages of the
disaffection, he had been thwarted by a House of Representatives, in
which the majority were strongly inclined to sympathize with the general
spirit of the insurgents; but the Senate had supported him. Afterwards,
when the movement grew more dangerous, the legislature became more
reconciled to the use of vigorous means to vindicate the authority of
the government, and a short time before it actually took the form of an
armed and organized rebellion against the Commonwealth, they had
encouraged the Governor to use the powers vested in him by the
constitution to enforce obedience to the laws. The Executive promptly
met the emergency. A body of militia was marched against the insurgents,
and by the middle of February they were dispersed or captured, with but
little loss of life.
The actual resources of the State, however, to meet an emergency of this
kind, were feeble and few. A voluntary loan, from a few public-spirited
individuals, supplied the necessary funds, of which the treasury of the
State was wholly destitute.[260] At one time, so general was the
prevalence of discontent, even among the militia on whom the government
were obliged to rely, that men were known openly to change sides in the
field, when the first bodies of troops were called out.[261] Had the
government of the State been in the hands of a person less firm and less
careless of popularity than Bowdoin, it would have been given up to
anarchy and civil confusion. The political situation of the country did
not seem to admit of an application to Congress for direct assistance,
and there is no reason to suppose that such an application would have
been effectively answered, if it had been made.[262]
When the news of the disturbances in Massachusetts, in the autumn of
1786, was received in Congress, it happened that intelligence from the
Western country indicated a hostile disposition on the part of several
Indian tribes against the frontier settlements. A resolve was
unanimously adopted, directing one thousand three hundred and forty
additional troops to be raised, for the term of three years, for the
protection and support of the States bordering on the Western territory
and the settlements on and near the Mississippi, and to secure and
facilitate the surveying and selling of the public lands.[263] From the
fact that the whole of these troops were ordered to be raised by the
four New England States, and one half of them by the State of
Massachusetts, and from other circumstances, it is quite apparent that
the object assigned was an ostensible one, and that Congress intended by
this resolve to strengthen the government of that State and to overawe
the insurgents.[264] But this motive could not be publicly announced.
The enlistment went on very slowly, however, until February, when a
motion was made by Mr. Pinckney of South Carolina to stop it altogether,
upon the ground that the insurrection in Massachusetts, the real, though
not the ostensible, object of the resolve, had been crushed. Mr. King of
Massachusetts earnestly entreated that the federal enlistments might be
permitted to go on, otherwise the greatest alarm would be felt by the
government of the State and its friends, and the insurrection might be
rekindled. Mr. Madison advised that the proposal to rescind the order
for the enlistments should be suspended, to await the course of events
in Massachusetts. At the same time, he admitted that it would be
difficult to reconcile an interference of Congress in the internal
controversies of a State with the tenor of the Articles of
Confederation.[265] The whole subject was postponed, and the direct
question of the power of Congress was not acted upon. In the Convention
which framed the Constitution, it was very early declared, that the
Confederation had neither constitutional power, nor means, to interfere
in case of a rebellion in any State.[266]
This generation can scarcely depict to itself the alarm which these
disturbances spread through the country, and the extreme peril to which
the whole fabric of society in New England was exposed. The numbers of
the disaffected in Massachusetts amounted to one fifth of the
inhabitants in several of the populous counties. Their doctrines and
purposes were embraced by many young, active, and desperate men in Rhode
Island, Connecticut, and New Hampshire, and the whole of this faction in
the four States was capable of furnishing a body of twelve or fifteen
thousand men, bent on annihilating property, and cancelling all debts,
public and private.[267]
But this great peril was not without beneficial consequences. It
displayed, at a critical moment, when a project of amending the Federal
Constitution for other purposes was encountering much opposition, a more
dangerous deficiency than any to which the public mind had hitherto been
turned. While thoughtful and considerate men were speculating upon the
causes of diminished prosperity and the general feebleness of the system
of government, a gulf suddenly yawned beneath their feet, threatening
ruin to the whole social fabric. It was but a short time before, that
the people of this country had shed their blood to obtain constitutions
of their own choice and making. Now, they seemed as ready to overturn
them as they had once been to extort from tyranny the power of creating
and erecting them in its place. It was manifest, that to achieve the
independence of a country is but half of the great undertaking of
liberty;--that, after freedom, there must come security, order, the wise
disposal of power, and great institutions on which society may repose in
safety. It was clear, that the Federal Union alone could certainly
uphold the liberty which it had gained for the people of the States, and
that, to enable it to do so, it must become a government.[268]
From his retreat at Mount Vernon, Washington observed the progress of
these disorders with intense anxiety. To him, they carried the strongest
evidence of a want of energy in the system of the Federal Union. They
did more than all things else to convince him that "a liberal and
energetic constitution, well checked and well watched to prevent
encroachments, might restore us to that degree of respectability and
consequence to which we had the fairest prospect of attaining."[269] He
was kept accurately informed of the state of things in New England, and
the probability that he would be obliged to come forward, and take an
active part in the support of order against civil discord, was directly
intimated to him.[270] He had foreseen the possibility of this; but the
successful issue of the struggle relieved him from the contemplation of
this painful task, and left to him only the duty of giving the whole
weight of his influence and presence in the Convention, which was to
assemble in the following May, for the revision of the Federal
Constitution.
FOOTNOTES:
[254] Gibbon, with that graceful satire which knew how to hit two
objects with the same stroke of his pen, describes hereditary monarchy
as "an expedient which deprives the multitude of the dangerous, and
indeed the ideal, power of giving themselves a master." The historian of
the Decline and Fall began to publish his great work, just as the
American Revolution burst upon the world. Since that sentence was
penned, the experiment of a system, by which the multitude give to
themselves a master, in the constitutional organs of their own will, has
had a fair trial. We may not say that its trial is past, or that the
system is established beyond the possibility of further dangers. But we
may with a just pride point to its escape, in the days of its first
establishment and greatest danger, and to the securities which the
Constitution of the United States now affords, against similar perils,
when they threaten the constitutions of the States.
[255] A power to interfere in the internal concerns of a State would
only have been exercised by a broad construction of the third of the
Articles of Confederation, which was in these words: "The said States
hereby severally enter into a firm league of friendship with each other,
for their common defence, the security of their liberties, and their
mutual and general welfare; binding themselves to assist each other
against all force offered to or attacks made upon them, or any of them,
on account of religion, sovereignty, trade, or any other pretence
whatever." When this is compared with the clear and explicit provision
in the Constitution, by which it is declared that "the United States
shall guarantee to every State in this Union a republican form of
government," there can be no wonder that a doubt was felt in the
Congress of 1786-87 as to their powers upon this subject. It is true
that the Massachusetts delegation, when they laid before Congress the
measures which had been taken by the State government to suppress the
insurrection, expressed the confidence of the legislature that the
firmest support and most effectual aid would have been afforded by the
United States, had it been necessary, and asserted that such support and
aid were expressly and solemnly stipulated by the Articles of
Confederation. (Journals, XII. 20. March 9, 1787.) But this was clearly
not the case; and it was not generally supposed in Congress that the
power existed by implication. All that was done by Congress towards
raising troops, at the time of the insurrection, was done for the
_ostensible_ purpose of protecting the frontiers against an Indian
invasion, as we shall see hereafter.
[256] Minot's History of the Insurrection, p. 6.
[257] Ibid.
[258] See the next chapter for some particulars respecting the trade of
Massachusetts.
[259] Minot's History of the Insurrection, p. 82 et seq.
[260] Governor Bowdoin's Speech to the Legislature, February 3, 1787.
[261] Minot.
[262] In the spring of 1786, the State had asked the loan from Congress
of sixty pieces of field artillery. The application was refused, by the
negative vote of six States out of eight, one being divided, and the
delegation from Massachusetts alone supporting it. Journals, XI. 65-67.
April 19, 1786.
[263] Journals, XI. 258. October 30, 1786.
[264] It was well understood, for instance, in the legislature of
Virginia, that this was the real purpose; for Mr. Madison says that this
consideration inspired the ardor with which they voted, towards their
quota of the funds called for to defray the expenses of this levy, a tax
on tobacco, which would scarcely have been granted for any other
purpose, as its operation was very unequal. Elliot's Debates, V. 95.
February 19, 1787.
[265] Ibid.
[266] Ibid. 127.
[267] This was the estimate of their numbers formed by General Knox, on
careful inquiry, and by him given to General Washington. See a letter
from General Washington to Mr. Madison. Works, IX. 207.
[268] Washington, writing to Henry Lee in Congress, October 31, 1786,
says: "You talk, my good sir, of employing influence to appease the
present tumults in Massachusetts. I know not where that influence is to
be found, or, if attainable, that it would be a proper remedy for the
disorders. _Influence_ is not _government_. Let us have a government by
which our lives, liberties, and properties will be secured, or let us
know the worst at once." Works, IX. 204.
[269] Ibid. 208.
[270] Ibid. 221.
CHAPTER IV.
ORIGIN AND NECESSITY OF THE POWER TO REGULATE COMMERCE.
Among all the causes which led to the establishment of the Constitution
of the United States, there is none more important, and none that is
less appreciated at the present day, than the inability of the
Confederation to manage the foreign commerce of the country. We have
seen that, when the Articles of Confederation were proposed for adoption
by the States, the State of New Jersey remonstrated against the absence
of all provision for placing the foreign trade of the States under the
regulation of the federal government. But this remonstrance was without
effect, and the instrument went into operation in 1781, with no other
restriction upon the powers of the States to regulate trade according to
their pleasure, than a prohibition against levying imposts or duties
which would interfere with the treaties then proposed. While the war
continued, the subject was of comparatively little importance. But the
return of peace found this country capable of becoming a great
commercial, as well as agricultural nation; and it could not be
overlooked, that its government possessed very inadequate means for
establishing such relations with foreign powers as would best develop
its resources and conduce to its internal harmony and prosperity. How
early this great interest had attracted the attention of those who were
most capable of enlarged and statesmanlike views of the actual nature of
the Union and the wants of the States, there are perhaps as yet before
the world no sufficient means of determining. We know, however, that,
before the peace, Hamilton saw clearly that it was essential for the
United States to be vested with a general superintendence of trade, both
for purposes of revenue and regulation; that he foresaw the
encouragement of our own products and manufactures, by means of general
prohibitions of particular articles and a judicious arrangement of
duties, and that this could only be effected by a central authority; and
that the due observance of any commercial treaty which the United States
might make with a foreign power could not be expected, if the different
States retained the regulation of their own trade, and thus held the
practical construction of treaties in their own hands.[271]
But it does not appear that, among the other principal statesmen of the
Revolution, these ideas had made much progress, until the entire
incapacity of the Confederation to negotiate advantageous commercial
treaties, for want of adequate power to enforce them, had displayed the
actual weakness of its position, and the oppressive measures of other
countries had taught them that there was but one remedy for such evils.
Then, indeed, they saw that the United States could have a standing as a
commercial power among the other powers of the world, only when their
representatives could be received and dealt with as the representatives
of one, and not of thirteen sovereignties; and that, if the measures of
other countries, injurious to the trade of America, were to be
counteracted at all, it must be by a power that could prohibit access to
all the States alike, or grant it as to all, as circumstances might
require.[272]
The actual commercial relations of the United States with other
countries, when the peace took place, were confined to treaties of amity
and commerce with France, Sweden, and the Netherlands; the two latter
transcending, in some degree, the powers of the Confederation. In 1776,
the Revolutionary Congress had adopted a plan of treaties to be proposed
to France and Spain, which contemplated that the subjects of each
country should pay no duties in the other except such as were paid by
natives, and should have the same rights and privileges as natives in
respect to navigation and commerce.[273] When a treaty of amity and
commerce came to be concluded with France, in 1778, the footing on which
the subjects of the two countries were placed, in the dominions of each
other, was that of the most favored nations, instead of that of
natives.[274] The Articles of Confederation, proposed in 1777, and
finally ratified in March, 1781, reserved to the States the right of
levying duties and imposts, excepting only such as would interfere with
any treaties that might be made "pursuant to the treaties proposed to
France and Spain." The United States could therefore constitutionally
complete these two treaties, and such as were dependent upon them, but
no others which should have the effect of restraining the legislatures
of the States from prohibiting the exportation or importation of any
species of goods or merchandise, or laying whatever duties or imposts
they thought proper.[275]
In 1782, negotiations were entered into for a similar treaty with the
States General of the Netherlands. When the instructions to Mr. Adams to
negotiate this treaty were under consideration in Congress, it was
recollected that the French treaty contained a stipulation, the effect
of which would enable the heirs of the subjects of either party, dying
in the territories of the other, to inherit real property, without
obtaining letters of naturalization.[276] The doubt suggested
itself,--as it well might,--whether such an indefinite license to aliens
to possess real property within the United States, was not an
encroachment upon the rights of the States. It seems to have been
expected, when the French treaty was entered into, that the States would
acquiesce in this provision, on account of the peculiar relations of
this country to France, and because of the saving clause in the
Articles of Confederation in favor of the treaties to be made with that
power and with Spain.[277] But such a stipulation as this was clearly
not within the meaning of that clause; and it was received with great
repugnance by many of the States.[278] In the treaty with the
Netherlands, it was proposed to insert a similar provision; but it was
found to be extremely improbable that the States would comply with a
similar engagement with another power. The language was therefore
varied, so as to give the privilege of inheritance only as to the
"effects" of persons dying in the country;--an expression which would
probably exclude real property, but which might possibly be construed to
include it.[279]
With regard to duties and imposts, the Dutch treaty contained the same
stipulation as the French, putting the subjects of either power on the
footing of the most favored nations, and thereby holding out to the
subjects of the United Provinces the promise of an equality, under the
laws of the United States, with the subjects of France.[280] The same
stipulation was inserted in a treaty subsequently made at Paris with the
King of Sweden.[281]
If these stipulations were supposed or intended to be binding upon the
States, so as to restrain them from adopting, within their respective
jurisdictions, any other rule than that fixed by the French treaty, for
the subjects of the United Provinces and the King of Sweden, it is quite
clear that the Articles of Confederation gave no authority to Congress
to make them. They could have no effect, therefore, in producing a
uniformity of regulation throughout the United States, with regard to
the trade with Sweden and the Netherlands.
The relations of the United States with Great Britain were, however,
far more important, than their relations with Sweden or Holland. When
the war was drawing to a close, and the provisional articles of peace
had been agreed upon, a measure was in preparation in England, under
the auspices of Mr. Pitt, designed as a temporary arrangement of
commercial intercourse between Great Britain and the United States,
and which would have enabled the government of this country to have
formed a treaty so advantageous, that the States would doubtless have
conformed their legislation to its provisions. That great statesman
perceived, that it was extremely desirable to establish the
intercourse of the two countries on the most enlarged principles of
reciprocal benefit, and his purpose was, by a provisional arrangement,
to evince the disposition of England to be on terms of amity with the
United States, preparatory to the negotiation of a treaty.[282] But
the administration, in which he was then Chancellor of the Exchequer,
went out of office immediately after he had proposed this measure, and
their successors, following a totally different line of policy,
procured an act of Parliament authorizing the King in Council to
regulate the commercial intercourse between the United States and
Great Britain and her dependencies.[283]
Mr. Pitt's bill was designed to admit the vessels and subjects of the
United States into all the ports of Great Britain, in the same manner as
the subjects and vessels of other independent sovereign states, and to
admit merchandise and goods, the growth, produce, or manufacture of this
country, under the same duties and charges as if they were the property
of British subjects, imported in British vessels. It also proposed to
establish an entirely free trade between the United States and the
British islands, colonies, and plantations in America. The new
administration, on the contrary, believing that this would encourage the
American marine, to the ruin of that of Great Britain, and would deprive
the latter of a monopoly in the consumption of her colonies, and in
their carrying trade, resolved to reverse this entire policy. In this
course, they were encouraged by the views which they took of the
internal situation of this country, and which were, to a great extent,
justified by the fact. They believed that we could not act, as a nation,
upon questions of commerce; that the climates, the staples, and the
manners of the States were different, and their interests therefore
opposite; and that no combination was likely to take place, from which
England would have reason to fear retaliation. They supposed, that,
inasmuch as the Confederation had no power to make any but general
treaties, and as the States had reserved to themselves nearly every
power concerning the regulation of trade, no treaty could be made that
would be binding upon all the States; and that, if treaties should
become necessary, they must be made with the States respectively. But
they denied that treaties were necessary, and maintained that it would
be unwise to enter at present into any arrangements by which they might
not wish afterwards to be bound. They determined, therefore, to deal
with this country as a collection of rival States, with each of which
they could make their own terms, after the pressure of their policy, and
the impossibility of escaping from its effects, had begun to be felt.
They accordingly began, by excluding from the British West Indies, under
Orders in Council, the whole American marine, and by prohibiting fish,
and many important articles of our produce, from being carried there,
even in British vessels.[284]
At the termination of the war, the foreign commerce of the United States
was capable of great expansion.
It consisted of three important branches,--the trade of the Eastern,
that of the Middle, and that of the Southern States; each of which
required at once the means of reaching foreign markets. The rice and
indigo of the South might be carried to Europe. The Middle States might
export to Europe tobacco, tar, wheat, and flour; and to the West Indies,
pork, beef, bread, flour, lumber, tar, and iron. The Eastern States
might supply the markets of Europe with spars, ship-timber, staves,
boards, fish, and oil, and those of the West Indies with lumber, pork,
beef, live cattle, horses, cider, and fish. The whole of these great
interests of course received a sudden and almost fatal blow from the
English Orders in Council, and no means whatever existed of
countervailing their effects, but such as each State could provide for
its own people, by its own legislation.
Congress, however, awoke to the perception of an efficient and
appropriate remedy, of a temporary character, and prepared to apply it,
through an amendment of their powers. For the purpose of meeting the
policy of Great Britain with similar restrictions on her commerce, they
recommended to the States to vest in Congress, for the term of fifteen
years, authority to prohibit the vessels of any power, not having
treaties of commerce with the United States, from importing or exporting
any commodities into or from any of the States, and also with the power
of prohibiting, for a like term, the subjects of any foreign country,
unless authorized by treaty, from importing into the United States any
merchandise not the produce or manufacture of such country.[285] There
was already before the States, as we have seen, in the revenue system of
1783, a proposal to them to vest in Congress power to levy certain
duties on foreign commodities, for the same period; and if these two
grants of power had been made, and made promptly, by the States,
Congress would have possessed, for a time, an effectual control over
commerce, and the practical means of forming suitable commercial
treaties.
But the proposal of the 30th of April, 1784, met with a tardy and
reluctant attention among the States. Only one of them had acted upon
it, as late as the following February, when the delegates for Maryland
laid before Congress an act of that State upon the subject.[286] New
Hampshire was the next State to comply, in the succeeding June.[287] In
the mean time, however, Congress prepared to prosecute negotiations in
Europe, trusting to the chances of an enlargement of their powers, in
pursuance of their recommendation. Accordingly, they proceeded, in the
spring of 1784, to appoint a commission to negotiate commercial
treaties, and settled the principles on which such treaties were to be
formed. The leading principle then determined on was, that each party to
the treaty should have a right to carry their own produce, manufactures,
and merchandise in their own bottoms to the ports of the other, and to
take thence the produce, manufactures, and merchandise of the other,
paying, in both cases, such duties only as were paid by the most favored
nation. The resolves appointing the commission also contained a very
explicit direction, that "the United States, in all such treaties, and
in every case arising under them, should be considered as one nation,
upon the principles of the Federal Constitution."[288] Yet the Federal
Constitution did not, at that very moment, make the United States one
nation for this purpose. Its principles gave to Congress no authority
which could prevent the States from prohibiting any exportations or
importations whatever, as to their respective territories; and the
validity of these treaties, thus proposed to be negotiated with fifteen
European powers, depended altogether upon the precarious assent of the
thirteen States to the alterations in the principles of the Federal
Constitution which Congress had proposed.
That assent was not likely to be given, so as to become effectual for
the purposes for which it had been asked. The action of the States was
found, in the spring of 1786, to present a mass of incongruities, which
rendered the whole scheme of thus increasing the federal powers almost
hopeless. Four of the States had passed laws, conforming substantially
to the recommendations of Congress, but restraining their operation
until the other States should have complied.[289] Three of the States
had passed the requisite acts, and had fixed different periods at which
they were to take effect.[290] One State had granted full powers to
regulate its trade, by restrictions or duties, for fifteen years, with a
proviso that the law should be suspended until all the other States had
done the same.[291] Another State had granted power, for twenty-five
years, to regulate trade between the respective States, and to prohibit
or regulate the importation only of foreign goods in foreign vessels,
but restricting the operation of the act until the other States had
passed similar laws.[292] Still another State had granted powers like
the last, but without limitation of time, and with the proviso that,
when all the other States had made the same grants, it should become an
Article of the Confederation.[293] The three remaining States had passed
no act upon the subject.[294] Upon these conflicting and irreconcilable
provisions, Congress could take no other action, than to call the
attention of the States again to the original proposal, and request them
to revise their laws.[295]
While this discordant legislation was manifesting at home the entire
impracticability of amending the Federal Constitution by means of the
separate action of the State legislatures, the commissioners abroad were
engaged in efforts, nearly as fruitless, to negotiate the treaties which
they had been instructed to make. The commission was opened at Paris on
the 13th of August, 1784, and its objects announced to the different
governments. France was not disposed to change the existing relations.
England perceived the real want of power in the federal government, and
recognized nothing in the commission but the fact that it had been
issued by Congress, while the separate States had conferred no powers
upon either Congress or the commissioners.[296] Prussia alone entered
into a treaty, upon some of the principles laid down in the commission,
and soon after it was executed, the commissioners ceased to do any thing
whatever.[297]
During the period which elapsed from the Treaty of Peace with England to
the assembling of the Convention at Annapolis, the legislation of the
different States, designed to protect themselves against the policy of
England, was of course without system or concert, and without uniformity
of regulation. At one time duties were made extravagantly high; at
another, competition reduced them below the point at which any
considerable revenue could be derived. At one time, the States acted in
open hostility to each other; at another, they contemplated commercial
leagues, without regard to the prohibition contained in the Articles of
Confederation. No steady system was pursued by any of them, and the
inefficacy of State legislation became at length so apparent, that a
conviction of the necessity of new powers in Congress forced itself upon
the public mind.
FOOTNOTES:
[271] Life of Hamilton, II. 233, 234. See also his resolutions on the
defects of the federal government, intended to be offered in Congress in
1783, and especially the eighth resolution. Works of Hamilton, II. 269.
[272] Hamilton himself, in some papers which he published in 1781, under
the title of The Continentalist, gave the general sum of American
statesmanship and its opportunities, down to that period. The events of
the next seven years gave it a wonderful development. "It would be the
extreme of vanity in us," said he, "not to be sensible that we began
this revolution with very vague and confined notions of the practical
business of government. To the greater part of us, it was a novelty; of
those who under the former constitution had had opportunities of
acquiring experience, a large proportion adhered to the opposite side,
and the remainder can only be supposed to have possessed ideas adapted
to the narrow colonial sphere in which they had been accustomed to move,
not of that enlarged kind suited to the government of an independent
nation. There were, no doubt, exceptions to these observations;--men in
all respects qualified for conducting the public affairs with skill and
advantage;--but their number was small; they were not always brought
forward in our councils; and when they were, their influence was too
commonly borne down by the prevailing torrent of ignorance and
prejudice. On a retrospect, however, of our transactions, under the
disadvantages with which we commenced, it is perhaps more to be wondered
at, that we have done so well, than that we have not done better. There
are, indeed, some traits in our conduct, as conspicuous for sound policy
as others for magnanimity. But, on the other hand, it must also be
confessed, there have been many false steps, many chimerical projects
and Utopian speculations, in the management of our civil as well as of
our military affairs. A part of these were the natural effects of the
spirit of the times, dictated by our situation. An extreme jealousy of
power is the attendant on all popular revolutions, and has seldom been
without its evils. It is to this source we are to trace many of the
fatal mistakes, which have so deeply endangered the common cause;
particularly that defect which will be the object of these remarks,--a
want of power in Congress." Works, II. 186.
[273] Secret Journals, II. 7, 8.
[274] Ibid. 59.
[275] Articles of Confederation, Art. VI., IX. The expression in the
_sixth_ article was: "No State shall lay any imposts, &c. that shall
interfere with any stipulations in treaties entered into by the United
States with any king, prince, or state, _in pursuance of_ any treaties
already proposed by Congress to the court of France and Spain." The
_ninth_ article saved to the States the general power of levying duties
and laying prohibitions.
[276] Secret Journals, II. 65, 66. Art. XIII of the Treaty of Amity and
Commerce with France. The expression employed was, "goods movable and
immovable," and the right of succession was given, _ab intestato_,
without first obtaining letters of naturalization.
[277] See a report on this _projet_ of the treaty, made by Mr. Madison,
July 17, 1782. Secret Journals, II. 142-144.
[278] Ibid.
[279] Art. VI. of the Treaty of Amity and Commerce with the Netherlands,
executed by Mr. Adams at the Hague, October 8, 1782. Journals, VIII. 96.
[280] Ibid., Art. II., III.
[281] April 3, 1783. Journals, VIII. 386-398.
[282] Mr. Pitt's bill was brought in in March, 1783, and he went out of
office immediately afterwards.
[283] April, 1783.
[284] July, 1783. Their idea was, that, if the American States should
choose to send consuls, they should be received, and consuls sent to
them in return that each State would soon enter into all necessary
regulations with the consul, and that nothing more was necessary. See
Lord Sheffield's Observations on American Commerce.
[285] April 30, 1784.
[286] February 14, 1785. Journals, X. 53.
[287] By an act passed June 22-23, 1785; laid before Congress October
10, 1785. Ibid. 353.
[288] The commission consisted of Mr. John Adams, then at the Hague, Dr.
Franklin, then in France, and Mr. Jefferson, then in Congress. Mr.
Jefferson sailed from Boston on the 5th of July, and arrived in Paris on
the 6th of August, 1784. (Works, I. 49.) The powers with whom they were
to negotiate commercial treaties were Russia, Austria, Prussia, Denmark,
Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome,
Naples, Venice, Sardinia, and the Ottoman Porte. Secret Journals, III.
484-489. May 7, 1784.
[289] Massachusetts, New York, New Jersey, and Virginia.
[290] Connecticut, Pennsylvania, and Maryland.
[291] New Hampshire.
[292] Rhode Island.
[293] North Carolina.
[294] Delaware, South Carolina, and Georgia.
[295] See a report made in Congress, March 3, 1786. Journals, XI. 41.
[296] The Duke of Dorset, the English Ambassador at Paris, wrote to the
commissioners (March 26, 1785) as follows: "Having communicated to my
court the readiness you expressed in your letter to me of the 9th of
December to remove to London, for the purpose of treating upon such
points as may materially concern the interests, both political and
commercial, of Great Britain and America; and having at the same time
represented that you declared yourselves to be fully authorized and
empowered to negotiate, I have been, in answer thereto, instructed to
learn from you, gentlemen, what is the real nature of the powers with
which you are invested,--whether you are merely commissioned by
Congress, or whether you have received separate powers from the
respective States. A committee of North American merchants have waited
upon his Majesty's principal Secretary of State for Foreign Affairs, to
express how anxiously they wished to be informed upon this subject;
repeated experience having taught them in particular, as well as the
public in general, how little the authority of Congress could avail in
any respect, where the interest of any one individual State was even
concerned, and particularly so where the concerns of that State might be
supposed to militate against such resolutions as Congress might think
proper to adopt. The apparent determination of the respective States to
regulate their own separate interests renders it absolutely necessary,
towards forming a permanent system of commerce, that my court should be
informed how far the commissioners can be duly authorized to enter into
any engagements with Great Britain, which it may not be in the power of
any one of the States to render totally fruitless and ineffectual."
Diplomatic Correspondence, II. 297.
[297] Jefferson's Works, I. 50, 51. The whole proceedings of this
commission may be found in the Diplomatic Correspondence, II. 193-346.
CHAPTER V.
1783-1787.
THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED
LOSS OF THE WESTERN SETTLEMENTS.
The Confederation, although preceded by a cession of Western territory
from the State of New York for the use of the United States, contained
no grant of power to Congress to hold, manage, or dispose of such
property. There had been, while the Articles of Confederation were under
discussion in Congress, a proposal to insert a provision, giving to
Congress the sole and exclusive right and power to ascertain and fix the
western boundary of such States as claimed to the Mississippi or the
South Sea, and to lay out the land beyond the boundary so ascertained
into separate and independent States, from time to time, as the numbers
and circumstances of the inhabitants might require.[298] This proposal
was negatived by the vote of every State except Maryland and New
Jersey.[299] Its rejection caused the adoption of the Confederation to
be postponed for a period of more than two years after it was submitted
to the States.[300] Virginia had set up claims to an indefinite extent
of territory, stretching far into the Western wilderness, which were
looked upon with especial jealousy by Maryland; and when the Articles of
Confederation came before the legislature of that State for
consideration, the absence of any provision vesting in the Union any
control over these claims, or any power to ascertain and fix the western
boundaries of the great States, became at once a cause of irritation and
alarm. The steps taken by Maryland to have this power introduced into
the Articles have already been detailed.[301] But the Articles could not
be amended. Congress could only make efforts to remove this impediment
to their adoption, by recommending to the States to cede their
territorial claims to the Union. The first step which they took, for
this purpose, was to recommend to the State of Virginia, and all the
other States similarly situated, not to make sales of unappropriated
lands during the continuance of the war.[302] This was followed by a
full consideration of the subject presented by the objections of
Maryland and the remonstrance of Virginia. Declining to reopen the
question of the merits or policy of attempting to engraft the proposed
power upon the Confederation, Congress deemed it more advisable to
endeavor to procure a surrender of a portion of the territorial claims
of the several States.[303] In pressing a recommendation to this effect,
they were greatly aided by the course of the State of New York, which
had already authorized its delegates in Congress to limit its western
boundaries, and to cede a portion of its vacant lands to the United
States.[304] They then immediately declared, by resolve, the purposes
for which such cessions were to be held. The territories were to be
disposed of for the common benefit of the United States; to be settled
and formed into distinct republican States, which should become members
of the Federal Union, and have the same rights of sovereignty, freedom,
and independence as the other States. Each State so formed was to
contain a suitable extent of territory, not less than one hundred, nor
more than one hundred and fifty miles square; the necessary expenses
incurred by any State in acquiring the territory ceded, were to be
reimbursed; and the lands were to be granted or settled at such times,
and under such regulations, as should thereafter be agreed upon by the
United States in Congress assembled, or any nine or more of them.[305]
The cessions were made under the guaranties of this resolve. Strictly
speaking, there was no express constitutional power under which Congress
could thus act, either before or after the adoption of the Articles of
Confederation. Before that period, if the United States could acquire
and hold lands, for any purpose, it could only be by the common
attribute of sovereignty belonging to every government. Perhaps this
power existed, by implication, in the revolutionary government; but the
compact which was to constitute the new government contained no
authority for the establishment of new States within the limits of the
Union. But when, aside from the Articles of Confederation, and before
they had been adopted, the Revolutionary Congress undertook, in 1780, to
hold out these inducements to the States, as motives for their adoption
of that instrument, and these motives were acted upon and the cessions
made, it must be taken that the territory came rightfully into the
possession of the United States. Whether the adoption of the Articles,
containing no power for the government of such territories, or for the
admission of new States into the Union, did not place the new government
in a position where, if it acted at all, it would act beyond the scope
of its constitutional authority, certainly admitted of grave
question.[306] But the acquisition of the territory itself rested upon
acts, which were so directly and expressly connected with the
establishment of the new Union under the Confederation, as to make the
acquisition itself part of the fundamental conditions of that Union, and
the principal guaranty of its continuance. Among the declared purposes
for which these acquisitions were made, was that of forming them into
new States, to be admitted into the Union; and as all the States
acquiesced in and embraced this purpose, they may be said to have
conferred upon Congress an implied power to legislate to carry it into
effect. Still, the want of an express authority in the Articles thus to
deal with acquired territory was afterwards felt and insisted upon, as
the Confederation drew towards the close of its career.[307]
Virginia, in 1781, offered to make a cession to the United States of her
title to lands northwest of the Ohio, upon certain conditions, which
were not satisfactory, and the subject had not been acted upon in
Congress when the revenue system of 1783 was adopted for recommendation
to the States. Looking to the prospect of vacant lands, as a means of
hastening the extinguishment of the public debts, as well as of
establishing the harmony of the Union, Congress accompanied the
recommendation of the revenue system by new solicitations to the States
which had made no cessions of their public lands, or had made them in
part only, to comply fully with the former recommendations. This drew
from the State of New Jersey, apprehensive that the offer of Virginia
might be accepted, a remonstrance against the cession proposed by that
State, as partial, unjust, and illiberal.[308] Congress again took the
subject into consideration, examined the conditions which the
legislature of Virginia had annexed to their proposed grant, declared
some of them inadmissible, and stated the conditions on which the
cession could be received.[309] Virginia complied with the terms
proposed by Congress, and upon those terms ceded to the United States
all right, title, and claim, both of soil and jurisdiction, which the
State then had to the territory within the limits of its charter, lying
to the northwest of the river Ohio. That magnificent region, in which
now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and
Wisconsin, became the property of the United States, by a grant of
twenty lines, executed in Congress by Thomas Jefferson and three of his
colleagues, on the 1st day of March, 1784.[310]
Soon after this cession had been completed, Congress passed a resolve
for the regulation of the territory that had been or might be ceded to
the United States, for the establishment of temporary and permanent
governments by the settlers, and for the admission of the new States
thus formed into the Union.[311] This resolve provided, that the
territory which had been or might be ceded to the United States, after
the extinguishment of the Indian title, and when offered for sale by
Congress, should be divided into separate States, in a manner specified;
that the settlers on such territory, either on their own petition or on
the order of Congress, should receive authority to form a temporary
government; and that when there should be twenty thousand free
inhabitants within the limits of any of the States thus designated, they
should receive authority to call a convention of representatives to
establish a permanent constitution and government for themselves,
provided that both the temporary and permanent governments should be
established on these principles, as their basis:--1. That they should
for ever remain a part of the Confederacy of the United States of
America. 2. That they should be subject to the Articles of Confederation
and the acts and ordinances of Congress, like the original parties to
that instrument. 3. That they should in no case interfere with the
disposal of the soil by Congress. 4. That they should be subject to pay
a part of the federal debts, present and prospective, in the same
measure of apportionment with the other States. 5. That they should
impose no tax upon lands, the property of the United States. 6. That
their respective governments should be republican. 7. That the lands of
non-resident proprietors should not be taxed higher than those of
residents, in any new State, before its delegates had been admitted to
vote in Congress.
The resolve also contained a provision, which appears to have been
designed to meet the want of constitutional power, under the Articles of
Confederation, relative to the admission of new States. It was declared,
that whenever any of the States thus formed should have as many free
inhabitants as the least numerous of the thirteen original States, it
should be admitted by its delegates into Congress on an equal footing
with the original States, provided the assent of so many States in
Congress should be first obtained, as might at the time be competent to
such admission. It was further declared, that, in order to adapt the
Articles of Confederation to the condition of Congress when it should be
thus increased, it should be proposed to the original States, parties to
that instrument, to change the rule, which required a vote of nine
States, to a vote of two thirds of all the States in Congress; and that
when this change had been agreed upon, it should be binding upon the new
States.
After the establishment of a temporary government, and before its
admission into the Union, each of the new States was to have the right
to keep a member in Congress, with the privilege of debating, but not of
voting. It was also provided, that measures not inconsistent with the
principles of the Confederation, and necessary for the preservation of
peace and good order among the settlers in any of the said new States,
until they had assumed a temporary government, might, from time to time,
be taken by the United States in Congress assembled.
These provisions were to stand as a charter of compact and as
fundamental constitutions between the thirteen original States and each
of the new States thus described, unalterable from and after the sale of
any part of the territory of such State, but by the joint consent of the
United States in Congress assembled, and of the particular State to be
affected.[312]
New and urgent recommendations followed the passage of this resolve,
pressing the States to consider that the war was now happily brought to
a close, by the services of the army, the supplies of property by
citizens, and loans of money by citizens and foreigners, constituting a
body of creditors who had a right to expect indemnification, and that
the vacant territory was an important resource for this great
object.[313]
The subject does not seem to have again occupied the attention of
Congress until the spring of the following year, when a proposition was
introduced and committed, to exclude slavery and involuntary servitude,
otherwise than in punishment of crimes, from the States described in the
resolve of April 23d, 1784, and to make this provision part of the
compact established by that resolve.[314]
Soon afterwards, a cession was made by Massachusetts of all its right
and title, both of soil and jurisdiction, to the Western territory lying
within the limits of the charter of that State.[315] In the succeeding
month, Congress adopted an ordinance for ascertaining the mode of
disposing of the Western lands to settlers.[316] In the course of the
next year, the cession by Connecticut was made, after various
negotiations, with a reservation to that State of the property in a
considerable tract of country, since called the Connecticut Reserve,
lying to the south of Lake Erie, and now embraced within the State of
Ohio.[317]
Before this transaction had been completed, it had become manifest, from
the knowledge that had been obtained of the country northwest of the
Ohio, that it would be extremely inconvenient to lay it out into States
of the extent and dimensions described in the resolve of October 10,
1780, under which the cession of Virginia had been made; and the
legislature of that State were accordingly asked to modify their act of
cession, so as to enable Congress to lay out the territory into not more
than five nor less than three States, as the situation and circumstances
of the country might require.[318] This suggestion was complied
with.[319]
A cession by South Carolina then followed, of all its claim to lands
lying towards the river Mississippi;[320] but no other cessions were
made to the United States under the Confederation; those of Georgia and
North Carolina having been made after the adoption of the
Constitution.[321]
It appears, therefore, that, with the exception of the claims of South
Carolina to territory lying due west from that State towards the river
Mississippi, the United States, before the 13th of July, 1787, had
become possessed of the title to no other territory than that which had
been surrendered to them by the States of New York, Virginia,
Massachusetts, and Connecticut. The great mass of this territory was
that embraced within the cession of Virginia, and lying to the northwest
of the river Ohio; and after the whole title to this region, with the
exception of some reserved tracts, had become complete in the United
States, it was subject to the resolves of 1780 and of 1784. The
provisions of the resolve of 1784, however, were soon seen to be
inconvenient and inapplicable to the pressing wants of this region.
Immediate legislation was plainly demanded for this territory, which
could not wait the slow process of forming first temporary and then
permanent governments, as had been contemplated by that resolve.
Congress had had cast upon it the administration of an empire, exterior
to the Confederation, and rapidly filling with people, in which the
rights and tenure of property, the preservation of order and
tranquillity, and the shaping of its political and social destinies,
required instant legislation. This legislation was therefore provided in
the celebrated Ordinance for the Government of the Northwestern
Territory, enacted July 13, 1787, which was designed to supersede and in
terms directly repealed the resolve of 1784. As this fundamental law for
a new and unsettled country--at that time a novel undertaking--must
always be regarded with interest in every part of the world, and as it
lies at the foundation of the civil polity of a sixth part of these
United States, its principles and provisions should be carefully
examined.
The territory was, for the purposes of temporary government, constituted
one district, subject to be divided into two, as future circumstances
might require. An equal distribution of property among the children of
persons dying intestate, with a life estate to the widow in one third of
the real and personal estate, was made the law of the territory, until
it should be altered by its legislature. Persons of full age were
empowered to dispose of their estates by a written will, executed in the
presence of three witnesses. Real estates were authorized to be conveyed
by deed, executed by a person of full age, acknowledged and attested by
two witnesses. Both wills and deeds were required to be registered.
Personal property was transferable by delivery.
The civil government of the territory was to consist of executive,
legislative, and judicial branches. A Governor was to be appointed from
time to time by Congress, and to be commissioned for three years,
subject to removal; but he was to reside in the district, and to have a
freehold estate there in one thousand acres of land, while in the
exercise of his office. A Secretary was also to be appointed from time
to time by Congress, and to be commissioned for four years, subject to
removal, but to reside in the district, and to have a freehold estate
there in five hundred acres of land, while in the exercise of his
office. There was also to be appointed a court of common law
jurisdiction, to consist of three judges, any two of whom should form a
court; they were to reside in the district, and to have each a freehold
estate there in five hundred acres of land, while in the exercise of
their office; their commissions to continue in force during good
behavior.
The Governor and Judges, or a majority of them, were to adopt and
publish in the district such laws of the original States, criminal and
civil, as might be necessary and best suited to the circumstances of the
district, to be in force in the district until the organization of the
General Assembly, unless disapproved by Congress, to whom, from time to
time, they should be reported;--but the legislature, when constituted,
were to have authority to alter them as they should think fit.
Magistrates and other civil officers were to be appointed by the
Governor, previous to the organization of the General Assembly, for the
preservation of peace and good order. After the organization of the
General Assembly, the powers and duties of magistrates and other civil
officers were to be regulated and defined by the legislature, but their
appointment was to remain with the Governor.
For the prevention of crimes and injuries, the laws to be adopted or
made were to have force in all parts of the district, and for the
execution of process, criminal and civil, the Governor was to make
proper divisions of the territory, and to lay out the portions where the
Indian titles had been extinguished, from time to time, into counties
and townships, subject to future alteration by the legislature.
As soon as there should be five thousand free male inhabitants, of full
age, in the district, upon giving proof thereof to the Governor, they
were to receive authority to elect representatives from their counties
or townships, to represent them in the General Assembly. For every five
hundred male inhabitants, there was to be one representative; and so on
progressively the right of representation was to increase, until the
number of representatives should amount to twenty-five, after which
their numbers and proportions were to be regulated by the legislature.
The qualifications of a representative were to be previous citizenship
in one of the United States for three years, and residence in the
district, or a residence of three years in the district, with a
fee-simple estate, in either case, of two hundred acres of land within
the district. The qualifications of electors were to be a freehold in
fifty acres of land in the district, previous citizenship in one of the
United States, and residence in the district, or the like freehold and
two years' residence in the district.
The Ordinance then proceeded to state certain fundamental articles of
compact between the original States and the people and States in the
territory, which were to remain unalterable, except by common consent.
The first provided for freedom of religious opinion and worship. The
second provided for the right to the writ of _habeas corpus_; for trial
by jury; for a proportionate representation in the legislature; for
judicial proceedings according to the course of the common law; for
offences not capital being bailable; for fines being moderate, and
punishments not cruel nor unusual; for no man's being deprived of his
liberty or property, but by the judgment of his peers or the law of the
land; for full compensation for property taken or services demanded for
the public; and that no law should ever be made, or have force in the
territory, that should in any manner whatever interfere with or affect
private contracts or engagements, previously formed, _bona fide_ and
without fraud. The third provided for the encouragement of religion and
education, for schools, and for good faith towards the rights and
property of the Indian tribes. The fourth provided that the territory
and the States to be formed therein should for ever remain a part of the
Confederacy, subject to the constitutional authority of Congress; that
the inhabitants should be liable to be taxed proportionately for the
public expenses; that the legislature in the territory should never
interfere with the primary disposal of the soil by Congress, nor with
their regulations for securing the title to purchasers; that no tax
should be imposed on lands, the property of the United States; that
non-resident proprietors should not be taxed more than residents; and
that the navigable waters leading into the Mississippi and St. Lawrence,
and the carrying-places between them, should be common highways and for
ever free.
The fifth provided, that there should be formed in the territory not
less than three, nor more than five States, with certain boundaries; and
that whenever any of the States should contain sixty thousand free
inhabitants, such State should be (and might be before) admitted by its
delegates into Congress, on an equal footing with the original States in
all respects whatever, and should be at liberty to form a permanent
constitution and State government, provided it should be republican, and
in conformity with these articles of compact.
The sixth provided, that there should be neither slavery nor involuntary
servitude in the territory, otherwise than in the punishment of crimes;
but that fugitives owing service in other States might be reclaimed.
American legislation has never achieved any thing more admirable, as an
internal government, than this comprehensive scheme. Its provisions
concerning the distribution of property, the principles of civil and
religious liberty which it laid at the foundation of the communities
since established under its sway, and the efficient and simple
organization by which it created the first machinery of civil society,
are worthy of all the praise that has ever attended it. It was not a
plan devised in the closet, upon theoretical principles of abstract
fitness. It was a constitution of government drawn by men who
understood, from experience, the practical working of the principles
which they undertook to embody. Those principles were, it is true, to be
applied to a state of society not then formed; but they were taken from
states of society in which they had been tried with success. The equal
division of property; general, not universal suffrage, but a suffrage
guarded by some degree of interest in society; representative
government; the division of the three grand departments of political
power; freedom of religious opinion and worship; the _habeas corpus_,
trial by jury, and the course of the common law; the right to be bailed
for offences not capital, and the prohibition of immoderate fines and
cruel or unusual punishments; the great principle of compensation for
property or service demanded by the public, and the legislative
inviolability of contracts; the encouragement of schools and the means
of education,--were all taken from the ancient or recent constitutions
of States, from which the greater part of the inhabitants of the new
territory would necessarily come. A community founded on these
principles was predestined to prosperity and happiness.
But it was in the provisions of the Ordinance relative to the admission
into the Union of the new States to be formed upon this territory, that
the relation between the existing government of the United States and
its great dependency was afterwards found to involve serious
difficulties. The Union was at that time a confederacy of thirteen
States, originally formed mainly with reference to the exigencies of the
war; and, although the Articles of Confederation had been ratified under
circumstances which gave to the United States the authority to acquire
this property, they had vested in Congress no power to enlarge the
Confederacy by the admission of new States. Yet the Ordinance undertook
to declare that new States should be admitted into the Congress of the
United States on an equal footing with the existing States in all
respects whatever, without proposing to submit that question to the
original parties to the Confederacy.
It does not appear from contemporary evidence that this difficulty
attracted public attention, at the time of the passage of the Ordinance.
In the year 1787, the Confederation was laboring under far more pressing
and alarming defects than the want of strict constitutional power to
create new States. Public attention was consequently more engaged with
the consideration of evils which affected the prosperity of the original
States themselves, than with the destiny of the new communities, or the
method by which they were to be brought into the Union. It was not
immediately perceived, also, that a property, capable at no distant day
of becoming a vast mine of wealth to the United States, as a great and
independent revenue, had come under the management of a single body of
men, constituted originally without reference to such a trust, and with
no declared constitutional provisions for its administration. When,
however, the Constitution was in the process of formation, the necessity
for provisions under which Congress could dispose of the public lands,
and by which new States could be admitted into the Union, was at once
felt and conceded on all sides.[322]
Far more serious difficulties, however, attended the management by the
Confederation of the interests of the Western country;--difficulties
which commenced immediately after the Peace, and continued to increase,
until the course taken by Congress had nearly lost to the Union the
whole of that immense region which now pours its commerce down the
Mississippi and its great tributary waters. These difficulties sprang
from the inherent weakness of the federal government,--from the absolute
incapacity of Congress, constituted as it was, to deal wisely, safely,
and efficiently with the foreign relations of the country and its
internal affairs, under the delicate and critical circumstances in which
it was then placed. After the Treaty of Peace, the Western settlements,
flanked by the dependencies of Great Britain at the north and of Spain
at the south, and rapidly filling with a bold, adventurous, and somewhat
lawless population, whose ties of connection with the Eastern States
were almost sundered by the remoteness of their position and the
difficulties of communication, stood upon a pivot, where accident might
have thrown them out of the Union. This population found themselves
seated in a luxuriant and fertile country, capable of a threefold
greater production than the States eastward of the Alleghany and
Appalachian Mountains, and intersected by natural water communications
of the most ample character, all tending to the great highway of the
Mississippi. A soil richer than any over which the Anglo-Saxon race had
hitherto spread itself upon this continent, in any of its temperate
climes; large plains and meadows, capable, without labor, of supporting
millions of cattle; and fields destined to vie with the most favored
lands on the globe in the production of wheat, were already accumulating
upon the banks of their great rivers a weight of produce far beyond the
necessities of subsistence, and loudly demanding the means of reaching
the markets of the world. The people of the Atlantic States knew little
of the resources or situation of this country. They valued it chiefly as
a means of paying the public debts by the sale of its lands; but until
they were in imminent danger of losing it, from the inefficiency of the
national government, they had little idea of the supreme necessity of
securing for it an outlet to the sea, if they would preserve it to the
Union.
Washington, in the autumn of 1784, after his retirement to Mount
Vernon, made a tour into the Western country, for the express purpose of
ascertaining by what means it could be most effectually bound to the
Union. The policy of opening communications eastward, by means of the
rivers flowing through Virginia to the Atlantic Ocean struck him at
once. On his return, he addressed a letter to the Governor of the State,
in which he recommended the appointment of a commission, to make a
survey of the whole means of natural water communication between Lake
Erie and the tide-waters of Virginia. He does not seem at this time to
have considered the navigation of the Mississippi as of great
importance; but he thought rather that the opening of that river would
have a tendency to separate the Western from the Eastern States.[323] A
year later, he held a clear opinion, that its navigation ought not at
present to be made an object by the United States, but that their true
policy was to open all the possible avenues between the Atlantic States
and the Western territory, and that, until this had been done, the
obstructions to the use of the Mississippi had better not be
removed.[324] Those obstructions, however, involved the hazard of a loss
of the territory to which the navigation of that river had already
become extremely important. Their nature is, therefore, now to be
explained.
The Treaty of Peace with Great Britain recognized, as the southern
boundary of the United States, a line drawn from a point where the
thirty-first degree of north latitude intersected the river Mississippi,
along that parallel due east to the middle of the river Appalachicola;
thence along the middle of that river to its junction with the Flint
River; thence in a straight line to the head of St. Mary's River; and
thence down the middle of that river to the Atlantic Ocean.[325] At the
time of the negotiation of this treaty West Florida was in the
possession of Spain; and a secret article was executed by the British
and American plenipotentiaries, which stipulated that in case Great
Britain, at the conclusion of a peace with Spain, should recover or be
put in possession of West Florida, the north boundary between that
province and the United States should be a line drawn from the mouth of
the river Yassous, where it unites with the river Mississippi, due east
to the river Appalachicola.[326] The treaty also stipulated, that the
navigation of the Mississippi, from its source to the ocean, should for
ever remain free and open to the subjects of Great Britain and the
citizens of the United States.[327]
When the treaty came to be ratified and published, in 1784, the Spanish
government was already acquainted with this secret article. Justly
assuming that no treaty between Great Britain and the United States
could settle the boundaries between the territories of the latter power
and those of Spain, or give of itself a right to navigate a river
passing wholly through their dominions, they immediately caused it to be
signified to Congress, that, until the limits of Louisiana and the two
Floridas should be settled and determined, by an admission on the part
of Spain that they had been rightfully described in the Treaty with
England, they must assert their territorial claims to the exclusive
control of the river; and also, that the navigation would under no
circumstances be conceded, while Spain held the right to its
control.[328] To accommodate these difficulties, Congress resolved to
send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his
departure was prevented by the arrival in the United States of Don Diego
Guardoqui, as Minister from Spain, charged with the negotiation of a
treaty.[329]
Preparatory to this negotiation, the first instruction which Mr. Jay
received from Congress was, to insist upon the right of the United
States to the territorial boundaries and the free navigation of the
Mississippi, as settled by their treaty with Great Britain.[330] Upon
this point, however, the Spanish Minister was immovable. A long
negotiation ensued, in which he evinced entire readiness to make a
liberal commercial treaty with the United States, conceding to their
trade very important advantages; but at the same time refusing the right
to use the Mississippi. Such a treaty was regarded as extremely
important to the United States. There was scarcely a single production
of this country that could not be advantageously exchanged in the
Spanish European ports for gold and silver. The influence of Spain in
the Mediterranean, with Portugal, with France, with the States of
Barbary, and the trade with her Canaries and the adjacent islands,
rendered a commercial alliance with her of the utmost importance. That
importance was especially felt by the Eastern and Middle States, whose
influence in Congress thus became opposed to the agitation of the
subject of opening the Mississippi.[331] Indeed, the prevailing opinion
in Congress, at this time, was for not insisting on the right of
navigation as a necessary requisite in the treaty with Spain; and there
were some important and influential persons in that body ready to agree
to the abandonment of the right, rather than defer longer a free and
liberal system of trade with a power able to give conditions so
advantageous to the United States.[332] The Eastern States considered a
commercial treaty with Spain as the best remedy for their distresses,
which flowed, as they believed, from the decay of their commerce. Two of
the Middle States joined in this opinion. Virginia, on the other hand,
opposed all surrender of the right.[333]
In this posture of affairs, Mr. Jay proposed to Congress a middle
course. Believing, as Washington continued to believe,[334] that the
navigation of the Mississippi was not at that time very important, and
that it would not become so for twenty-five or thirty years, he
suggested that the treaty should be limited to that period, and that one
of its articles should stipulate, that the United States would forbear
to use the navigation of the river below their territories to the ocean.
It was supposed that such a forbearance, carrying no surrender of the
right, would, at the expiration of the treaty, leave the whole subject
in as favorable a position as that in which it now stood. Besides, the
only alternative to obtaining such an article from Spain was to make war
with her, and enforce the opening of the river. The experiment, at
least, it was argued, would do no injury, and might produce much
good.[335]
These arguments prevailed, so far as to cause a change in Mr. Jay's
instructions, by a vote, which was deemed by him sufficient to confer
authority to obtain such an article as he had suggested, but which was
clearly unconstitutional. Seven States against five voted to rescind the
instructions of August 25, 1785, by which the Secretary had been
directed to insist on the right of navigation, and not to conclude or
sign any treaty until he had communicated it to Congress.[336] Mr. Jay
accordingly agreed with the Spanish Minister on an article which
suspended the use of the Mississippi, without relinquishing the right
asserted by the United States.[337]
While these proceedings were going on, and before the vote of seven
States in Congress had been obtained in favor of the present suspension
of this difficult controversy, an occurrence took place at Natchez,
which aroused the jealousy of the whole West. A seizure was made there,
by the Spanish authorities, of certain American property, which had been
carried down the river for shipment or sale at New Orleans.[338] The
owner, returning slowly in the autumn to his home, in the western part
of North Carolina, by a tedious land journey through Kentucky, detailed
everywhere the story of his wrongs and of the loss of his adventure. The
news of this seizure, as it circulated up the valley from below,
encountered the intelligence coming from the eastward, that Congress
proposed to surrender the present use of the Mississippi. Alarm and
indignation fired the whole population of the Western settlements. They
believed themselves to be on the point of being sacrificed to the
commercial policy of the Atlantic States; and, feeling that they stood
in the relation of colonists to the rest of the Union, they held
language not unlike that which the old colonies had held towards
England, in the earlier days of the great controversy.
They surveyed the magnificent region which they were subduing from the
dominion of Nature;--the inexhaustible resources of its soil already
yielding an abundance, which needed only a free avenue to the ocean to
make them rich and prosperous;--and they felt that the mighty river
which swept by them, with a volume of waters capable of sustaining the
navies of the world, had been destined by Providence as a natural
channel through which the productions of their imperial valley should be
made to swell the commerce of the globe. But the Spaniard was seated at
the outlet of this noble stream, sullenly refusing to them all access to
the ocean. To him they must pay tribute. To enrich him, they must till
those luxuriant lands, which gave, by an almost spontaneous production,
the largest return which American labor had yet reaped under the
industry of its own free hands. Their proud spirits, unaccustomed to
restraint, and expanding in a liberty unknown in the older sections of
the country, could not brook this vassalage. Into the comprehensive
schemes of statesmen, who sought to unite them with the East by a great
chain of internal improvements, and thus to blend the interests of the
West with the commercial prosperity of the whole country, they were too
impatient, and too intent upon the engrossing object of their own
immediate advantage, to be able to enter.
What, they exclaimed, could have induced the legislature of the United
States, which had been applauded for their assertion and defence of the
rights and privileges of the country, so soon to endeavor to subject a
large part of their dominion to a slavery worse than that to which Great
Britain had presumed to subject any part of hers? To give up to the
Spaniards the greatest share of the fruits of their toils,--to surrender
to them, on their own terms, the produce of that large, rich, and
fertile country, and thus to enable them to command the benefits of
every foreign market,--was an intolerable thought. What advantage, too,
would it be to the Atlantic States, when Spain, from the amazing
resources of the Mississippi, could undersell them in every part of the
world? Did they think by this course of policy to prevent emigration
from a barren country, loaded with taxes and impoverished by debts, to
the most luxurious and fertile soil within the limits of the Union? The
idea was vain and presumptuous. As well might the fishes of the sea be
prevented from gathering on a bank that afforded them ample nourishment.
The best and largest part of the United States was not thus to be left
uncultivated; a home for savages and wild beasts. Providence had
destined it for nobler purposes. It was to be the abode of a great,
prosperous, and cultivated people,--of Americans in feeling, in rights,
in spirit, incapable of becoming the bondmen of Spain, while the rest
of their country remained free. Their own strength could achieve for
them what the national power refused or was unable to obtain. Twenty
thousand effective men, west of the Alleghanies, were ready to rush to
the mouth of the Mississippi, and drive the Spaniards into the sea.
Great Britain stood with open arms to receive them. If not countenanced
and succored by the federal government, their allegiance would be thrown
off, and the United States would find too late that they were as
ignorant of the great valley of the Mississippi, as England was of the
Atlantic States when the contest for independence began.[339]
Such was the feeling that prevailed in the Western country, as soon as
it became known that a treaty was actually pending, by which the right
to navigate the Mississippi might be suspended for a quarter of a
century. That it should have been accompanied by acts of retaliation and
outrage against the property of Spanish subjects, was naturally to have
been expected. A certain General Clarke, pretending to authority from
the State of Virginia, undertook to enlist men and establish a garrison
at Port St. Vincennes, ostensibly for the protection of the district of
Kentucky, then under the jurisdiction of Virginia. He made a seizure
there of some Spanish property for the purpose of clothing and
subsisting his men, and sent an officer to the Illinois, to advise the
settlers there of the seizures of American property made at Natchez, and
to recommend them to retaliate for any outrages the Spaniards might
commit upon their property.[340]
The executive of Virginia disavowed these acts, as soon as officially
informed of them; ordered the parties to be brought to punishment; and
sent a formal disclaimer, through their delegates in Congress, to the
Spanish Minister.[341] Guardoqui was not disturbed. He expected these
occurrences, and maintained his ground, refusing to yield the right of
navigating the river; and having assented to Mr. Jay's proposal of an
article which suspended the use for a period of twenty-five years, he
was quite ready to go on and conclude the treaty.
The people of the Western country, however, began to form committees of
correspondence, in order to unite their counsels and interests.[342] The
inhabitants of Kentucky sent a memorial to the General Assembly of
Virginia, which induced them to instruct their delegates in Congress to
oppose any attempt to surrender the right of the United States to the
free use of the Mississippi, as a dishonorable departure from the
comprehensive and benevolent feeling that constituted the vital
principle of the Confederation, and as provoking the just resentment and
reproaches of the Western people, whose essential rights and interests
would be thereby sacrificed. They also instructed their delegates to
urge such negotiations with Spain as would obtain her consent to
regulations for the mutual and common use of the river.[343] The members
from Virginia, with one exception, concurred in the policy of these
instructions,[344] and at first addressed themselves to some
conciliatory expedient for obviating the effect of the vote of seven
States.
They first represented to Guardoqui that it would be extremely
impolitic, both for the United States and Spain, to make any treaty
which should have the effect of shutting up the Mississippi. They stated
to him, that such a treaty could not be enforced; that it would be the
means of peopling the Western country with increased rapidity, and would
tend to a separation of that country from the rest of the Union; that
Great Britain would be able to turn the force that would spring up there
against Spanish America; and that the result would be the creation of a
power in the valley of the Mississippi hostile both to Spain and the
United States. These representations produced no impression. The Spanish
Minister remained firm in the position which he had held from the first,
that Spain never would concede the claim of the United States to
navigate the river. He answered, that the result of what had been urged
was, that Congress could make no treaty at all, and consequently that
the trade of the United States must remain liable to be excluded from
the ports of Spain.[345]
Foiled in this quarter, the next expedient, for those who felt the
necessity of preventing such a treaty as had been contemplated, was to
gain time, by transferring the negotiation to Madrid; and Mr. Madison
introduced a resolution into Congress for this purpose, which was
referred to the Secretary for Foreign Affairs.[346] In a few days, the
Secretary reported against the proposal, and nothing remained for the
opponents of the treaty, but to attack directly the vote of seven
States, under which the Secretary had acted in proceeding to adjust with
the Spanish Minister an article for suspending the right of the United
States to the common use of the river below their southern boundary.
The Articles of Confederation expressly declared, that the United States
should not enter into any treaty or alliance, unless nine States in
Congress assented to the same.[347] It was very justly contended,
therefore, that, to proceed to negotiate a treaty authorized by a vote
of only seven States, would expose the United States to great
embarrassment with the other contracting party, since the vote made it
certain that the treaty could not be constitutionally ratified; and that
the vote itself, having passed in a case requiring the assent of nine
States, was not valid for the purpose intended by it. This was not
denied; but the advocates of the treaty, by means of a parliamentary
rule, resisted the introduction of a resolution to rescind the vote of
seven States.[348]
But while this dangerous subject was pending, the affairs of the country
had taken a new turn. The Convention at Annapolis had been held, in the
autumn of 1786, and the Convention called to revise the system of the
federal government was to meet in May, 1787. It had become sure and
plain, that a large increase of the powers of the national government
was absolutely essential to the continuance of the Union and the
prosperity of the States. Every day the situation of the country was
becoming more and more critical. No money came into the federal
treasury; no respect was paid to the federal authority; and all men saw
and admitted that the Confederation was tottering to its fall. Some
prominent persons in the Eastern States were suspected of leaning
towards monarchy; others openly predicted a partition of the States into
two or more confederacies; and the distrust which had been created by
the project for closing the Mississippi rendered it extremely probable,
that the Western country at least would be severed from the Union.
The advocates of that project recoiled, therefore, from the dangers
which they had unwittingly created. They saw, that the crisis required
that harmony and confidence should be studiously cherished, now that the
great enterprise of remodelling the government upon a firmer basis was
to be attempted. They saw that no new powers could be obtained for the
Federal Constitution, if the government then existing were to burden
itself with an act so certain to be the source of dissension, and so
likely to cause a dismemberment of the Confederacy, as the closing of
the Mississippi. Like wise and prudent men, therefore, they availed
themselves of the expected and probable formation of a new government,
as a fit occasion for disposing of this question; and after an effort to
quiet the apprehensions that had been aroused, the whole matter was
postponed, by general consent, to await the action of the great
Convention of May, 1787.[349] After the Constitution had been formed and
adopted, the negotiation was formally referred to the new federal
government which was about to be organized, in March, 1789, with a
declaration of the opinion of Congress that the free navigation of the
river Mississippi was a clear and essential right of the United States,
and ought to be so considered and supported.[350]
FOOTNOTES:
[298] October 15, 1777. Secret Journals, I. 328.
[299] Ibid.
[300] See the account of the adoption of the Confederation, ante, pp.
131-141.
[301] Ante, pp. 131-136.
[302] October 30, 1779. Journals, V. 401, 402.
[303] September 6, 1780.
[304] February 19, 1780.
[305] October 10, 1780.
[306] The Federalist.
[307] Ibid.
[308] June 20, 1783.
[309] September 13, 1783.
[310] The granting part of the deed of cession, exclusive of its
recitals, is as follows: "That we, the said Thomas Jefferson, Samuel
Hardy, Arthur Lee, and James Munroe, by virtue of the power and
authority committed to us by the act of the said General Assembly of
Virginia before recited, and in the name and for and on behalf of the
said Commonwealth, do by these presents convey, transfer, assign, and
make over unto the United States in Congress assembled, for the benefit
of the said States, Virginia inclusive, all right, title, and claim, as
well of soil as of jurisdiction, which the said Commonwealth hath to the
territory or tract of country within the lines of the Virginia charter,
situate, lying, and being to the northwest of the river Ohio, to and for
the uses and purposes, and on the conditions, of the said recited act."
The cession was made with the reservation of such a portion of the
territory ceded, between the rivers Scioto and Little Miami, as might be
required to make up the deficiencies of land on the south side of the
Ohio, called the Green River lands, reserved for the Virginia troops on
continental establishment. (Journals, IX. 47-49.) Subsequently, the act
of cession was altered, so as to admit of the formation of not more than
five, nor less than three States, of a size more convenient than that
described in the act of cession and in the resolve of October 10, 1780.
(Journals, XI. 139, 140. July 9, 1786.)
[311] April 23, 1784. Journals, IX. 153.
[312] April 23, 1784. Journals, IX. 153.
[313] April 29, 1784. Journals, IX. 184.
[314] This proposition was introduced by Rufus King, March 16, 1785, and
was committed by the votes of _eight_ States against _four_.
[315] April 19, 1785.
[316] May 20, 1785.
[317] September 14, 1786. Journals, XI. 221-223. The deed of cession,
and the act of Connecticut recited in it, do not disclose this
reservation. The territory ceded is described by certain lines which
include less than the whole claim of Connecticut. It appears from the
Journals, under the date of May 22-26, 1786, and from various
propositions considered between those dates, that the State of
Connecticut claimed to own a larger extent of territory than she
proposed to cede; and by way of compromise, her claim was so far acceded
to, that Congress agreed to accept of a cession of less than the whole.
The reservation embraced about six millions of acres. See Sparks's
Washington, IX. 178, note, where it appears that the right of the State
to this territory was considered very feeble at the time.
[318] July 9, 1786.
[319] December 30, 1788.
[320] August 9, 1789.
[321] That of North Carolina was made February 25, 1790, and that of
Georgia, April 24, 1802.
[322] See Mr. Madison's notes of the Debates in the Confederation.
Elliot, V. 128, 157, 190, 211, 376, 381.
[323] His recommendation contemplated a survey of James River and the
Potomac, from tide-water to their respective sources; then to ascertain
the best portage between those rivers and the streams capable of
improvement which run into the Ohio; then to traverse and survey those
streams to their junction with the Ohio; then, passing down the Ohio to
the mouth of the Muskingum, to ascend that river to the carrying-place
to the Cuyahoga; then down the Cuyahoga to Lake Erie, and thence to
Detroit. He also advised a survey of Big Beaver Creek, and of the
Scioto, and of all the waters east and west of the Ohio, which invited
attention by their proximity and the ease of land transportation between
them and the James and Potomac Rivers. "These things being done," he
said, "I shall be mistaken if prejudice does not yield to facts,
jealousy to candor, and finally, if reason and nature, thus aided, do
not dictate what is right and proper to be done." (Writings of
Washington, IX. 65.) This suggestion was adopted, and a commission
appointed.
[324] Writings, IX. 63, 117-119. August 22, 1785.
[325] Article II. Journals, IX. 26.
[326] Executed November 30, 1782. Secret Journals, III. 338.
[327] Article VIII. Journals, IX. 29.
[328] June 25, 1784. Communicated to Congress November 19, 1784. Secret
Journals, III. 517, 518.
[329] Guardoqui arrived and was recognized July 2, 1785. Secret
Journals, III. 563.
[330] August 25, 1785. Secret Journals, III. 585, 586.
[331] See the communication made by Mr. Jay to Congress, August 3, 1786.
Secret Journals, IV. 43.
[332] Henry Lee, then in Congress, wrote to Washington on the 3d of
July, 1786, as follows: "Your reasoning is perfectly conformable to the
prevalent doctrine on that subject in Congress. We are very solicitous
to form a treaty with Spain for commercial purposes. Indeed, no nation
in Europe can give us conditions so advantageous to our trade as that
kingdom. The carrying business they are like ourselves in, and this
common source of difficulty in adjusting commercial treaties between
other nations does not apply to America and Spain. But, my dear General,
I do not think you go far enough. Rather than defer longer a free and
liberal system of trade with Spain, why not agree to the exclusion of
the Mississippi? This exclusion will not, cannot, exist longer than the
infancy of the Western emigrants. Therefore, to these people what is now
done cannot be important. To the Atlantic States it is highly important;
for we have no prospect of bringing to a conclusion our negotiations
with the court of Madrid, but by yielding the navigation of the
Mississippi. Their Minister here is under positive instructions on that
point. In all other arrangements, the Spanish monarch will give to the
States testimonies of his regard and friendship. And I verily believe,
that, if the above difficulty should be removed, we should soon
experience the advantages which would flow from a connection with
Spain." (Writings of Washington, IX. 173, note.)
[333] Washington's Writings, IX. 205, 206, note.
[334] Washington had not changed his opinion, at the time of these
negotiations. On the 18th of June, 1786, he wrote to Henry Lee, in
answer to his letter above quoted: "The advantages with which the inland
navigation of the rivers Potomac and James is pregnant, must strike
every mind that reasons upon the subject; but there is, I perceive, a
diversity of sentiment respecting the benefits and consequences which
may flow from the free and immediate use of the Mississippi. My opinion
of this matter has been uniformly the same; and no light in which I have
been able to consider the subject is likely to change it. It is, neither
to relinquish nor to push our claim to this navigation, but in the mean
while to open _all_ the communications which Nature has afforded between
the Atlantic States and the Western territory, and to encourage the use
of them to the utmost. In my judgment, it is matter of very serious
concern to the well-being of the former to make it the interest of the
latter to trade with them; without which, the ties of consanguinity,
which are weakening every day, will soon be no bond, and we shall be no
more, a few years hence, to the inhabitants of that country, than the
British and Spaniards are at this day; not so much, indeed, because
commercial connections, it is well known, lead to others, and united are
difficult to be broken. These must take place with the Spaniards, if the
navigation of the Mississippi is opened. Clear I am, that it would be
for the interest of the Western settlers, as low down the Ohio as the
Big Kenhawa, and back to the Lakes, to bring their produce through one
of the channels I have named; but the way must be cleared, and made easy
and obvious to them, or else the ease with which people glide down
streams will give a different bias to their thinking and acting.
Whenever the new States become so populous and so extended to the
westward as really to need it, there will be no power which can deprive
them of the use of the Mississippi. Why, then, should we prematurely
urge a matter which is displeasing, and may produce disagreeable
consequences, if it is our interest to let it sleep? It may require some
management to quiet the restless and impetuous spirits of Kentucky, of
whose conduct I am more apprehensive in this business than I am of all
the opposition that will be given by the Spaniards." (IX. 172, 173.)
On the 26th of July of the same year, he again wrote to the same
gentleman, expressing the same opinions; and on the 31st of October, he
said that these sentiments "are controverted by only one consideration
of weight, and that is, the operation which the occlusion of the river
may have on the minds of the Western settlers, who will not consider the
subject in a relative point of view, or on a comprehensive scale, and
may be influenced by the demagogues of the country to acts of
extravagance and desperation, under the popular declamation, that their
interests are sacrificed." In July, 1787, he retained the same views as
to the true policy of the different sections of the country interested
in this question, but admitted that, from the spirit manifested at the
West, it had become a moot point to determine, when every circumstance
was brought into view, what was best to be done. (IX. 172, 180, 205,
261.)
[335] See Mr. Jay's reasoning, Secret Journals, IV. 53, 54.
[336] August 29, 1786. Secret Journals, IV. 109, 110. The States which
voted to rescind these instructions were New Hampshire, Massachusetts,
Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, and
Maryland; Virginia, North and South Carolina, and Georgia, voted not to
rescind. Another resolution was carried on the following day (August
30), by the votes of seven States, instructing the Secretary to insist
on the territorial limits or boundaries of the United States, as fixed
in the Treaty with Great Britain, and not to form any treaty with the
Spanish Minister, unless those boundaries were acknowledged and secured.
Ibid. 111-116.
[337] This agreement was made between the 29th of August, the date of
the rescinding resolution, and the 6th of October, 1786. See Mr. Jay's
communication to Congress under the latter date, Secret Journals, IV.
297-301.
[338] This seizure was made on the 6th of June, 1786. Secret Journals,
IV. 325.
[339] See the documents laid before Congress, April 13, 1787. Secret
Journals, IV. 315-328. On the 30th of January, 1787, Mr. Jefferson thus
writes to Mr. Madison, from Paris: "If these transactions give me no
uneasiness, I feel very differently at another piece of intelligence, to
wit, the possibility that the navigation of the Mississippi may be
abandoned to Spain. I never had any interest westward of the Alleghany;
and I never will have any. But I have had great opportunities of knowing
the character of the people who inhabit that country; and I will venture
to say, that the act which abandons the navigation of the Mississippi is
an act of separation between the Eastern and Western country. It is a
relinquishment of five parts out of eight of the territory of the United
States; an abandonment of the fairest subject for the payment of our
public debts, and the chaining those debts on our own necks, _in
perpetuam_. I have the utmost confidence in the honest intentions of
those who concur in this measure; but I lament their want of
acquaintance with the character and physical advantages of the people,
who, right or wrong, will suppose their interests sacrificed on this
occasion to the contrary interests of that part of the Confederacy in
possession of present power. If they declare themselves a separate
people, we are incapable of a single effort to retain them. Our citizens
can never be induced, either as militia or as soldiers, to go there to
cut the throats of their own brothers and sons, or rather, to be
themselves the subjects instead of the perpetrators of the parricide.
Nor would that country quit the cost of being retained against the will
of its inhabitants, could it be done. But it cannot be done. They are
able already to rescue the navigation of the Mississippi out of the
hands of Spain, and to add New Orleans to their own territory. They will
be joined by the inhabitants of Louisiana. This will bring on a war
between them and Spain; and that will produce the question with us,
whether it will not be worth our while to become parties with them in
the war, in order to reunite them with us, and thus correct our error.
And were I to permit my forebodings to go one step further, I should
predict that the inhabitants of the United States would force their
rulers to take the affirmative of that question. I wish I may be
mistaken in all these opinions." (Jefferson, II. 87.)
[340] Secret Journals, IV. 311-313.
[341] February 28, 1787.
[342] Madison. Elliot's Debates, V. 97.
[343] These instructions were adopted in November, 1786. Pitkin, II.
207. They were laid before Congress, April 19, 1787. Madison. Elliot's
Debates, V. 103.
[344] Henry Lee did not approve of this policy. See Washington's Works,
IX. 205, note.
[345] See Madison's account of two interviews with Guardoqui, March 13
and 19, 1787. Elliot, V. 98, 100. At the first of these interviews,
Guardoqui stated that he had had no conference with Mr. Jay since the
previous October, and never expected to confer with him again.
[346] April 18, 1787. Madison. Elliot, V. 102. On the next day (April
19) the instructions of Virginia were laid before Congress, but a motion
to refer them also to the Secretary was lost, Massachusetts and New York
voting against it, and Connecticut being divided. Ibid. When Mr. Jay's
report came under consideration, Mr. Gorham of Massachusetts, according
to Madison, avowed his opinion, that the shutting of the Mississippi
would be advantageous to the Atlantic States, and wished to see it shut.
Ibid. 103.
[347] Article IX.
[348] Madison. Elliot, V. 104, 105.
[349] Ibid.
[350] September 16, 1788. Secret Journals, IV. 449-454.
CHAPTER VI.
1783-1787.
DECAY AND FAILURE OF THE CONFEDERATION.--PROGRESS OF OPINION.--STEPS
WHICH LED TO THE CONVENTION OF 1787.--INFLUENCE AND EXERTIONS OF
HAMILTON.--MEETING OF THE CONVENTION.
The prominent defects in the Confederation, which have been described in
the previous chapters, and which were so rapidly developed after the
treaty of 1783, made it manifest, that a mere league between independent
States, with no power of direct legislation, was not a government for a
country like this, in a time of peace. They showed, that this compact
between the States, without any central arbiter to declare or power to
enforce the duties which it involved, could not long continue. It had,
indeed, answered the great purpose of forming the Union, by bringing the
States into relations with each other, the continuance of which was
essential to liberty; since nothing could follow the rupture of those
relations but the reëstablishment of European power, or the native
despotism which too often succeeds to civil commotion. By creating a
corporate body of confederate States, and by enabling them to go into
the money-markets of Europe for the means of carrying on and concluding
the war, the Confederation had made the idea and the necessity of a
Union familiar to the popular mind. But the purposes and objects of the
war were far less complex and intricate than the concerns of peace. It
was comparatively easy to borrow money. It was another thing to pay it.
The federal power, under the Confederation, had little else to do,
before the peace, than to administer the concerns of an army in the
field, and to attend to the foreign relations of the country, as yet not
complicated with questions of commerce. But the vast duties, capable of
being discharged by no other power, which came rapidly into existence
before the creation of the machinery essential to their performance,
exhibited the Confederation in an alarming attitude.
It was found to be destitute of the essence of political
sovereignty,--the power to compel the individual inhabitants of the
country to obey its decrees. It was a system of legislation for States
in their corporate and collective capacities, and not for the
individuals of whom those States were composed. It could not levy a
dollar by way of impost or assessment upon the property of a citizen. It
had no means of annulling the action of a State legislature, which
conflicted with the lawful and constitutional requirements of Congress.
It made treaties, and was forced to stand still and see them violated by
its own members, for whose benefit they had been made. It owed an
enormous debt, and saw itself, year by year, growing more and more
unable to liquidate even the annually increasing interest. It stood in
the relation of a protector to the principles of republican liberty on
which the institutions of the States were founded, and on the first
occurrence of danger, it stretched forward only a palsied arm, to which
no man could look for succor. It undertook to rescue commerce from the
blighting effects of foreign policy, and failed to achieve a single
conspicuous and important advantage. Every day it lost something of
respect abroad and of confidence at home, until all men saw, with
Washington, that it had become a great shadow without the substance of a
government; while few could even conjecture what was to rise up and
supplant it.
Few men could see, amidst the decay of empire and the absolute negation
of all the vital and essential functions of government, what was to
infuse new life into a system so nearly effete. Yet the elements of
strength existed in the character of the people; in the assimilation,
which might be produced, in the lapse of years, by a common language, a
common origin, and a common destiny;--in the almost boundless resources
of the country;--and, above all, in the principles of its ancient local
institutions, that were capable, to an extent not then conceived, of
expansion and application to objects of far greater magnitude than any
which they had yet embraced. Through what progress of opinion the people
of this country were enabled to grasp and combine these elements into a
new system, which could satisfy their wants, we must now inquire.
In this inquiry, the student of political history should never fail to
observe, that the great difficulty of the case, which made it so complex
and embarrassing, arose from the separate, sovereign, and independent
existence of the States. The formation of new constitutions, in
countries not thus divided, involves only the adaptation of new
institutions and forms to the genius, the laws, and the habits of the
people. The monarchy of France has, in our day, been first remodelled,
and afterwards swept from the face of Europe, to be followed by a
republican constitution, which has in its turn been crushed and
superseded. But France is a country that has long been subjected to as
complete and powerful a system of centralization as has existed anywhere
since the most energetic period of the Roman empire; and whether its
institutions of government have or have not needed to be changed, as
they have been from time to time, those changes have been made in a
country in which an entire political unity has greatly facilitated the
operation.
In the United States, on the contrary, a federal government was to be
created; and it was to be created for thirteen distinct communities;--a
government that should not destroy the political sovereignties of the
States, and should yet introduce a new sovereignty, formed by means of
powers, whose surrender by the States, instead of weakening their
present strength, would rather develop and increase it. This peculiar
difficulty may be constantly traced, amidst all the embarrassments of
the period in which the fundamental idea of the Constitution was at
length evolved.
The progress of opinion and feeling in this country, on the subject of
its government, from the peace of 1783 to the year 1787, may properly be
introduced by a brief statement of the political tendencies of two
principal classes of men. All contemporary evidence assures us that this
was a period of great pecuniary distress, arising from the depreciation
of the vast quantities of paper money issued by the Federal and State
governments; from rash speculations; from the uncertain and fluctuating
condition of trade; and from the great amount of foreign goods forced
into the country as soon as its ports were opened. Naturally, in such a
state of things, the debtors were disposed to lean in favor of those
systems of government and legislation which would tend to relieve or
postpone the payment of their debts; and as such relief could come only
from their State governments, they were naturally the friends of State
rights and State authority, and were consequently not friendly to any
enlargement of the powers of the Federal Constitution. The same causes
which led individuals to look to legislation for irregular relief from
the burden of their private contracts, led them also to regard public
obligations with similar impatience. Opposed to this numerous class of
persons were all those who felt the high necessity of preserving
inviolate every public and private obligation; who saw that the
separate power of the States could not accomplish what was absolutely
necessary to sustain both public and private credit; and they were as
naturally disposed to look to the resources of the Union for these
benefits, as the other class were to look in an opposite direction.
These tendencies produced, in nearly every State, a struggle, not as
between two organized parties, but one that was all along a contest for
supremacy between opposite opinions, in which it was at one time
doubtful to which side the scale would turn.[351]
The three most important centres of opinion in the Union, before the
formation of the Constitution, were Massachusetts, Virginia, and New
York.[352] The public proceedings of each of them, in the order of time,
on the subject of enlarging the federal powers, are, therefore,
important to a just understanding of the course of events which ended in
the calling of the Convention.
The legislature of Massachusetts was assembled in the summer of 1785.
The proposal of Congress, made to the States in 1784, to grant the power
of regulating trade, had been responded to by only four of the States,
and the negotiations in Europe were failing from the want of it. Great
uneasiness and distress pervaded all the commercial classes, and
extended to every other class capable of being affected by a state of
things in which a large balance, occasioned by the extravagant
importation and use of foreign manufactures, was thrown against the
country. The money of the State was rapidly drawn off to meet this
balance, which its other exhausted means of remittance could not
satisfy. It was impossible for the State to recover its former
prosperity, while Great Britain and other nations continued the
commercial systems which they had adopted. It had become plain to the
comprehension of all intelligent persons concerned in trade, that
nothing could break up those systems so long as the United States were
destitute of the same power to regulate their foreign trade, by
admitting or excluding foreign vessels and cargoes according to their
interests; and it needed only the popular expression of this palpable
truth, enforced by a clear and decided executive message, to induce the
legislature to act upon it.[353] Governor Bowdoin gave the necessary
impulse, and suggested the appointment of special delegates from the
States to settle and define the powers with which Congress ought to be
invested.[354]
This message caused the adoption of the first resolution, passed by the
legislature of any State, declaring the Articles of Confederation to be
inadequate to the great purposes which they were originally designed to
effect, and recommending a convention of delegates from all the States,
for the purpose of revising them, and reporting to Congress how far it
might be necessary to alter or enlarge the powers of the Federal Union,
in order to secure and perpetuate its primary objects. Congress was
requested by these resolves to recommend such a convention. A letter,
urging the importance of the subject, was addressed by the Governor of
Massachusetts to the President of Congress, and another to the executive
of each of the other States. The resolves were also inclosed to the
delegates of the State in Congress, with instructions to lay them before
that body at the earliest opportunity, and to make every exertion to
carry them into effect.[355]
They were, however, never presented to Congress. That body was wholly
unprepared for such a step, and the delegation of Massachusetts were
entirely opposed to it, as premature. It had been all along the policy
of Congress to obtain only a grant of temporary power over commerce, and
to this policy they were committed by their proposition, now pending
with the legislatures of the States, and by the instructions of the
commissioners whom they had sent to Europe to negotiate commercial
treaties. The prevalent idea in Congress was, that at the expiration of
fifteen years,--the period for which they had asked the States to grant
them power over commerce,--a new commercial epoch would commence, when
the States would have a more clear and comprehensive view of their
interests, and of the best means for promoting them, whether by treaties
abroad, or by the delegation and exercise of greater power at home. It
was argued, also, that the most safe and practicable course was, to
grant temporary power in the first instance, and to leave the question
of its permanent adoption as a part of the Confederation to depend on
its beneficial effects. Another objection, which afterwards caused
serious difficulty, was, that the Articles of Confederation contained no
provision for their amendment by a convention, but that changes should
originate in Congress and be confirmed by the State legislatures, and
that, if the report of a convention should not be adopted by Congress,
great mischiefs would follow.
But a deep-seated jealousy in Congress of the radical changes likely to
be made in the system of government lay at the foundation of these
objections. There was an apprehension that the Convention might be
composed of persons favorable to an aristocratic system; or that, even
if the members were altogether republican in their views, there would be
great danger of a report which would propose an entire remodelling of
the government. The delegation from Massachusetts, influenced by these
fears, retained the resolutions of the State for two months, and then
replied to the Governor's letter, assigning these as their reasons for
not complying with the directions given to them.[356] The legislature of
Massachusetts thereupon annulled their resolutions recommending a
Convention.[357]
It is manifest from this occurrence, that Congress in 1785 were no more
in a condition to take the lead and conduct the country to a revision of
the Federal Constitution, than they were in 1783, when Hamilton wished
to have a declaration made of its defects, and found it impracticable.
There were seldom present more than five-and-twenty members; and, at the
time when Massachusetts proposed to call upon them to act upon this
momentous subject, the whole assembly embraced as little eminent talent
as had ever appeared in it. They were not well placed to observe that
something more than "the declamation of designing men" was at work,
loosening the foundations of the system which they were
administering.[358] They saw some of its present inconveniences; but
they did not see how rapidly it was losing the confidence of the
country, of which the following year was destined to deprive it
altogether.
Before the year 1785 had closed, however, Virginia was preparing to give
the weight of her influence to the advancing cause of reform.
A proposition was introduced into the House of Delegates of Virginia, to
instruct the delegates of the State in Congress to move a recommendation
to all the States to authorize Congress to collect a revenue by means of
duties uniform throughout the United States, for a period of thirteen
years.[359] The absolute necessity for such a system was generally
admitted; but, as in Massachusetts, the opinions of the members were
divided between a permanent grant of power and a grant for a limited
term. The advocates of the limitation, arguing that the utility of the
measure ought to be tested by experiment, contended, that a temporary
grant of commercial powers might be and would be renewed from time to
time, if experience should prove its efficacy. They forgot that the
other powers granted to the Union, on which its whole fabric rested,
were perpetual and irrevocable; and that the first sacrifices of
sovereignty made by the States had been the result of circumstances
which imperatively demanded the surrender, just as the situation of the
country now demanded a similar surrender of an irrevocable power over
commerce. The proposal to make this grant temporary only, was a proposal
to engraft an anomaly upon the other powers of the Confederacy, with
very little prospect of its future renewal; for the caprice, the
jealousy, and the diversity of interests of the different States, were
obstacles which the scheme of a temporary grant could only evade for the
present, leaving them still in existence when the period of the grant
should expire. But the arguments in favor of this scheme prevailed, and
the friends of the more enlarged and liberal system, believing that a
temporary measure would stand afterwards in the way of a permanent one,
and would confirm the policy of other countries founded on the
jealousies of the States, were glad to allow the subject to subside,
until a new event opened the prospect for a more efficient plan.[360]
The citizens of Virginia and Maryland, directly interested in the
navigation of the rivers Potomac and Pocomoke, and of the Bay of
Chesapeake, had long been embarrassed by the conflicting rights and
regulations of their respective States; and, in the spring of 1785, an
effort at accommodation was made, by the appointment of commissioners on
the part of each State to form a compact between them for the regulation
of the trade upon those waters. These commissioners assembled at
Alexandria in March, and while there made a visit at Mount Vernon, where
a further scheme was concerted for the establishment of harmonious
commercial regulations between the two States.[361] This plan
contemplated the appointment of other commissioners, having power to
make arrangements, with the assent of Congress, for maintaining a naval
force in the Chesapeake, and also for establishing a tariff of duties on
imports, to be enacted by the legislatures of both the States. A report,
embracing this recommendation, was accordingly made by the Alexandria
commissioners to their respective governments. In the legislature of
Virginia this report was received while the proposition for granting
temporary commercial powers to Congress was under consideration; and it
was immediately followed by a resolution directing that part of the plan
which respected duties on imports to be communicated to all the States,
with an invitation to send deputies to the meeting. In a few days
afterwards, the celebrated resolution of Virginia, which led the way to
the Convention at Annapolis, was adopted by the legislature, directing
the appointment of commissioners to meet with the deputies of all the
other States who might be appointed for the same purpose, to consider
the whole subject of the commerce of the United States.[362] The
circular letter which transmitted this resolution to the several States
proposed that Annapolis in the State of Maryland should be the place,
and that the following September should be the time of meeting.
The fate of this measure now turned principally upon the action of the
State of New York. The power of levying a national impost, proposed in
the revenue system of 1783, had been steadily withheld from Congress by
the legislature of that State. Ever since the peace, the State had been
divided between two parties, the friends of adequate powers in Congress,
and the adherents of State sovereignty; and the belief that the
commercial advantage of the State depended upon retaining the power to
collect their own revenues, had all along given to the latter an
ascendency in the legislature. In 1784, they established a custom-house
and a revenue system of their own. In 1785, a proposition to grant the
required powers to Congress was lost in the Senate; and in 1786, it
became necessary for Congress to bring this question to a final issue.
Three other States, as we have seen, stood in the same category with New
York, having decided in favor of no part of the plan which Congress had
so long and so repeatedly urged upon their adoption.[363] Declaring,
therefore, that the crisis had arrived when the people of the United
States, by whose will and for whose benefit the federal government was
instituted, must decide whether they would support their work as a
nation, by maintaining the public faith at home and abroad, or whether,
for want of a timely exertion in establishing a general revenue system,
and thereby giving strength to the Confederacy, they would hazard the
existence of the Union and the privileges for which they had
contended,--Congress left the responsibility of the decision with the
legislatures of the States.[364]
It was now that the influence of Hamilton upon the destinies of this
country began to be favored by the events which had brought its
affairs to the present juncture. To his sagacious and watchful
forecast, the proposal of a commercial convention, emanating from
Virginia, presented the opportunity which he had long desired, to
effect an entire change in the system of the federal government;
while, at the same time, the final appeal made by Congress for the
establishment of the revenue system gave him an occasion to bring the
State of New York into the movement which had been originated by
Virginia. He determined that this system should be again presented to
the legislature, for distinct approval or rejection, and that, if it
should be rejected, the State should still send a representation to
the Convention at Annapolis. He therefore caused the revenue system,
as proposed by Congress, to be again brought before the legislature,
where it was again rejected; and he and his friends then threw their
whole influence in favor of the appointment of commissioners to attend
the commercial convention, and succeeded,--Hamilton himself being
appointed one of them.[365]
This great step having been taken, the course of the State of New York
upon the revenue system of 1783, which brought her at length to an open
controversy with Congress, tended strongly to aid the plans of Hamilton,
and finally gave him the ascendency in the State itself. The
legislature, in May, 1786, passed an act for granting imposts and duties
to the United States, and soon afterwards adjourned. It was immediately
pronounced by Congress not to be a compliance with their recommendation,
and the Governor was earnestly requested to reassemble the legislature.
This he declined to do, upon the ground of a want of constitutional
power. Congress again urged the summoning of the legislature, for the
purpose of granting the system of impost in such a manner as to enable
them to carry it into effect, and the Governor again refused.[366]
Arrived at Annapolis, Hamilton found there the representatives of five
States only.[367] He had come with the determination that the Convention
should lay before the country the whole subject of the condition of the
States and the want of an efficient federal government. But the avowed
purpose of the meeting was solely to consider the means of establishing
a uniform system of commercial regulations, and not to reform the
existing government of the Union. New Jersey alone, of the five States
represented, had empowered her commissioners to consider of "other
important matters," in addition to the subject of commercial
regulations. Four other States had appointed commissioners, none of whom
had attended; and the four remaining States had made no appointments at
all.[368]
Under these circumstances, it was certainly a matter of great delicacy
for the commissioners of five States only to pass upon the general
situation of the Union, and to pronounce its existing government
defective and insufficient. Hamilton, however, felt that this
opportunity, once lost, might never occur again; and although willing to
waive his original purpose of a full exposition of the defects of the
Confederation, he did not deem it expedient that the Convention should
adjourn without proposing to the country some measure that would lead to
the necessary reforms. He modified his original plan, therefore, and
laid before his colleagues a report, which formally proposed to the
several States the assembling of a general convention, to take into
consideration the situation of the United States.
In this document, it was declared that the regulation of trade, which
had been made the object of the meeting at Annapolis, could not be
effected alone, for the power of regulating commerce would enter so far
into the general system of the federal government, that it would require
a corresponding adjustment of the other parts of the system. That the
system of the general government was seriously defective; that those
defects were likely to be found greater on a close inspection; that they
were the cause of the embarrassments which marked the state of public
affairs, foreign and domestic; and that some mode by which they could be
peaceably supplied was imperatively demanded by the public
necessities,--were propositions which the country was then prepared to
receive. A convention of deputies from the different States, for the
special and sole purpose of investigating the defects of the national
government, seemed to be the course entitled to preference over all
others.[369]
It was indeed the only method by which the object of the great statesman
who drafted this report could have been reached. The Articles of
Confederation had provided, that they should be inviolably observed by
every State; that the Union should be perpetual; and that no alteration
should be made in any of the Articles, unless agreed to in a Congress of
the United States, and confirmed by the legislature of every State.[370]
To have left the whole subject to the action of Congress would have
insured, at most, only a change in some of the features of the existing
government, instead of the great reform which Hamilton believed to be
essential,--the substitution of a totally different system. At the same
time, the coöperation and assent of Congress were necessary to the
success of the plan of a convention, in order that it might not seem to
be a violent departure from the provisions of the Articles of
Confederation, and also for the sake of their influence with the States.
The proposal of the report was therefore cautious. It did not suggest
the summoning of a convention to frame a new constitution of government,
but "to devise such further provisions as might appear to be necessary
to render the constitution of the federal government adequate to the
exigencies of the Union." It proposed also, that whatever reform should
be agreed on by the convention should be reported to Congress, and, when
agreed to by them, should be confirmed by the _legislatures_ of all the
States. In this manner, the proposal avoided any seeming violence to the
Articles of Confederation, and suggested the convention as a body to
prepare for the use of Congress a plan to be adopted by them for
submission to the States.[371]
At the same time, Hamilton undoubtedly contemplated more than any
amendment of the existing constitution. In 1780, he had analyzed the
defects of the general government, sketched the outline of a Federal
Constitution, and suggested the calling of a convention to frame such a
system.[372] The idea of such a convention was undoubtedly entertained,
by many persons, before the meeting at Annapolis. It had been
recommended by the legislature of New York in 1782, and by that of
Massachusetts in 1785. But Hamilton had foreseen its necessity in 1780,
more than seven years before the meeting at Annapolis; and, although he
may not have been the author of the first public proposal of such a
measure, his private correspondence contains the first suggestion of it,
and proves that he had conceived the main features of the Constitution
of the United States, even before the Confederation itself was
established.[373]
The recommendation of the Annapolis commissioners was variously
received. In the legislature of Virginia it met with a cordial approval,
and an act was passed during the autumn to provide for the appointment
of delegates to the proposed convention. In Congress, it was received at
first with little favor. Doubts were entertained there whether any
changes in the federal government could be constitutionally made,
unless they were to originate in Congress and were then to be adopted by
the legislatures of the States, pursuant to the mode provided by the
Articles of Confederation. The legislatures, it was argued, could not
adopt any scheme that might be proposed by a convention; and if it were
submitted to the people, it was not only doubtful what degree of assent
on their part would make it valid, but it was also doubtful whether
they could change the Federal Constitution by their own direct action.
To these difficulties was to be added the further hazard, that, if the
report of the convention should be made to Congress, as proposed, they
might not finally adopt it, and if it should be rejected, that fatal
consequences would ensue.[374]
The report of the Annapolis commissioners was, however, taken into
consideration; and in the course of the following winter a report upon
it was made in Congress, which conceded the fact that the Confederation
required amendments, and that the proposed convention was the most
eligible mode of effecting them.[375] But this report had to encounter
the objection, entertained by many members, that the measure proposed
would tend to weaken the federal authority, by lending the sanction of
Congress to an extra-constitutional proceeding. Others considered that a
more summary mode of proceeding was advisable, in the form of a direct
appeal to the people of every State to institute State conventions,
which should choose delegates to a general convention, to revise and
amend, or change, the federal system, and to publish the new
constitution for general observance, without any reference to the
States, for their acceptance or confirmation.[376] There were still
others, who preferred that Congress should take up the defects of the
existing system, point them out to the legislatures of the States, and
recommend certain distinct alterations to be adopted by them.[377]
It was no doubt true, that a convention originating with the State
legislatures was not a mode pointed out by the Articles of Confederation
for effecting amendments to that instrument. But it was equally true,
that the mere amendment of that instrument was not what the critical
situation of the country required. On the other hand, a convention
originating with the people of the States would undoubtedly rest upon
the authority of the people, in its inception; but, if the system which
it might frame were to go into operation without first being adopted by
the people, it would as certainly want the true basis of their consent.
These difficulties were felt in and out of Congress. But it does not
seem to have occurred to those who raised them, that the source from
which the convention should derive its powers to frame and recommend a
new system of government was of far less consequence, than that the mode
in which the system recommended should be adopted, should be one that
would give it the full sanction and authority of the people themselves.
A constitution might be framed and recommended by any body of
individuals, whether instituted by the legislatures or by the people of
the States; but if adopted and ordained by the States in their corporate
capacities, it would rest on one basis, and if adopted and ordained by
the people of the States, acting upon it directly and primarily, it
would obviously rest upon another, a different, and a higher authority.
The latter mode was not contemplated by Congress when they acted upon
the recommendation of the Annapolis commissioners. Accustomed to no
other idea of a union than that formed by the States in their corporate
capacities as distinct and sovereign communities; belonging to a body
constituted by the States, and therefore officially related rather to
the governments than to the people of the States; and entertaining a
becoming and salutary fear of departing from a constitution which they
had been appointed to administer,--the members of the Congress of
1786-87 were not likely to go beyond the Annapolis recommendation, which
in fact proposed that the new system should be confirmed by the
legislatures of the States.
But the course of events tended to a different result,--to an actual,
although a peaceable revolution, by the quiet substitution of a new
government in place of the old one, and resting upon an entirely
different basis. While Congress were debating the objections to a
convention, the necessity for action became every day more stringent.
The insurrection in Massachusetts, which had followed the meeting of the
commissioners at Annapolis and had reached a dangerous crisis when their
report was before Congress, had alarmed the people of the older States
by the dangers of an anarchy with which the existing national government
would be obviously unable to cope. The peril of losing the navigation of
the Mississippi, and with it the Western settlements, through the
inefficiency of Congress, was also at that moment impending; while, at
the same time, the commerce of the country was nearly annihilated by a
course of policy pursued by England, which Congress was utterly unable
to encounter. Under these dangers and embarrassments, a state of public
opinion was rapidly developed, in the winter of 1787, which drove
Congress to action. The objections to the proposal before them yielded
gradually to the stern requirements of necessity, and a convention was
at last accepted, not merely as the best, but as the only practicable,
mode of reaching the first great object by which an almost despairing
country might be reassured of its future welfare.
The final change in the views of Congress in regard to a convention was
produced by the action of the legislature of New York. In that body, as
we have seen, the impost system had been rejected, in the session of
1786, and the Governor of the State had even refused to reassemble the
legislature for the reconsideration of this subject. A new session
commenced in January, 1787, in the city of New York, where Congress was
also sitting. A crisis now occurred, in which the influence of Hamilton
was exerted in the same manner that it had been in the former session,
and with a similar result. On that occasion he had followed up the
rejection of the impost system with a resolve for the appointment of
commissioners to attend the meeting at Annapolis. It was now his
purpose, in case the impost system should be again rejected, to obtain
the sanction of Congress to the recommendation of a convention, made by
the Annapolis commissioners. This, he was aware, could be effected only
by inducing the legislature of New York to instruct the delegates of
their State in Congress to move and vote for that decisive measure. The
majority of the members of Congress were indisposed to adopt the plan of
a convention; and although they might be brought to recommend it at the
instance of a State, they were not inclined to do so spontaneously.[378]
The crisis required, therefore, all the address of Hamilton and of the
friends of the Union, to bring the influence of one of these bodies to
bear upon the other.
The reiterated recommendation by Congress of the impost system, now
addressed solely to the State of New York, who remained alone in her
refusal, necessarily occupied the earliest attention of the new
legislature.[379] A warm discussion upon a bill introduced for the
purpose of effecting the grant as Congress had asked for it, ended, on
the 15th of February, in its defeat. The subject of a general convention
of the States, according to the plan of the Annapolis commissioners, was
then before Congress, on the report of a grand committee;[380] and
Congress were hesitating upon its expediency. At this critical juncture,
Hamilton carried a resolution in the legislature of New York,
instructing the delegates of that State in Congress to move for an act
recommending the States to send delegates to a convention for the
purpose of revising the Articles of Confederation, which, four days
afterwards, was laid before Congress.[381]
Virginia and North Carolina had already chosen delegates to the
Convention, in compliance with the recommendation from Annapolis; and
Massachusetts was about to make such an appointment, under the influence
of her patriotic Bowdoin. In this posture of affairs, although the
proposition of the New York delegation failed to be adopted,[382] the
fact that she had thus solicited the action of Congress was of decisive
influence, when the members from Massachusetts followed it immediately
by a resolve more acceptable to a majority of the assembly.[383]
The recommendation, as it went forth from Congress, was strictly limited
to a revision of the Articles of Confederation, by a convention of
delegates, and the alterations and new provisions were to be reported to
Congress, and were to be agreed to in Congress and confirmed by the
States. Thus the resolution pursued carefully the mode of amendment and
alteration provided by the Articles of Confederation, except that it
interposed a convention for the purpose of originating the changes to be
proposed in the existing form of government; adding, however, the great
general purpose of rendering the Federal Constitution adequate to the
exigencies of government and the preservation of the Union.
The point thus gained was of vast and decisive importance. That Congress
should forego the right of originating changes in the system of
government;[384] that it should advise the States to confer that power
upon another assembly; and that it should sanction a general revision
of the Federal Constitution, with the express declaration of its present
inadequacy,--were all preliminaries essential to a successful reform.
Feeble as it had become from the overgrown vitality of State power, and
from the lack of numbers and talent upon its roll, it was still the
government of the Union; the Congress of America; the lineal successors
of that renowned assembly which had defied the power of England, and
brought into existence the thirteen United States. If it stood but the
poor shadow of a great name, it was still a name with which to do more
than conjure; for it bore a constitutional relation to the States, still
reverenced by the wise and thoughtful, and still necessary to be
regarded by all who desired the security of constitutional liberty. The
risk of immediate attempts to establish a monarchical form of government
was not inconsiderable. The risk that civil confusion would follow a
longer delay to provide for the pressing wants of the country was
greater. Dejection and despondency had taken hold of many minds of the
highest order; while the great body of the people were desiring a change
which they could not define, and which they feared, while they invited
its approach. In such a state of things, considerate men were naturally
unwilling to turn entirely away from Congress, or to exclude its agency
altogether from the processes of reform, and to embark upon the
uncertain sea of political experiment, without chart or rule to guide
their course; for no man could tell what projects, what schemes, and
what influences might arise to jeopard those great principles of
republican liberty on which the political fabric had rested from the
Declaration of Independence to the present hour of danger and distress.
For the wise precedent, thus established, of placing the formation of a
new government under the direct sanction of the old one, the people of
this country are indebted chiefly to Hamilton. Nothing can be more
unfortunate, in any country, than the necessity or the rashness which
sweeps away an established constitution, before a substitute has been
devised. Whether the interval be occupied by provisional arrangements or
left to a more open anarchy, it is an unfit season for the creation of
new institutions. At such a time, the crude projects of theorists are
boldly intruded among the deliberations of statesmen; despotism lies in
wait for the hazards by which liberty is surrounded; the multitude are
unrestrained by the curb of authority; and society is exposed to the
necessity of accepting whatever is offered, or of submitting to the
first usurper who may seize the reins of government, because it has
nothing on which to rest as an alternative. True liberty has gained
nothing, in any age or country, from revolutions, which have excluded
the possibility of seeking or obtaining the assent of existing power to
the reforms which the progress of society demands.
In the days when the Confederation was tottering to its fall; when its
revenues had been long exhausted; and when its Congress embraced, in
actual attendance, less than thirty delegates from only eleven of the
States, it would have been the easy part of a demagogue to overthrow it
by a sudden appeal to the passions and interests of the hour, as the
first step to a radical change.[385] But the great man, whose mature and
energetic youth, trained in the school of Washington, had been devoted
to the formation and establishment of the Union, knew too well, that, if
its golden cord were once broken, no human agency could restore it to
life. He knew the value of habit, the respect for an established,
however enfeebled authority; and while he felt and insisted on the
necessity for a new constitution, and did all in his power to make the
country perceive the defects of the old one, he wisely and honestly
admitted that the assent of Congress must be gained to any movement
which proposed to remedy the evil.
But the reason for not moving the revision of the system of government
by Congress itself was one that could not be publicly stated. It was,
that the highest civil talent of the country was not there. The men to
whom the American people had been accustomed to look in great
emergencies,--the men who were called into the Convention, and whose
power and wisdom were signally displayed in its deliberations,--were
then engaged in other spheres of public life, or had retired to the
repose which they had earned in the great struggle with England. Had the
attempt been made by Congress itself to form a constitution for the
acceptance of the States, the controlling influence and wisdom of
Washington, Franklin's wide experience and deep sagacity, the unrivalled
capacities of Hamilton, the brilliant powers of Gouverneur Morris,
Pinckney's fertility, and Randolph's eloquence, with all the power of
their eminent colleagues and all the strength of principle and of
character which they brought to the Convention, would have been withheld
from the effort. One great man, it is true, was still there. Madison was
in Congress; and Madison's part in the framing of the Constitution was
eminently conspicuous and useful. But without the concentration of
talent which the Convention drew together, representing every interest
and every part of the Union, nothing could have been presented to the
States, by the Congress of 1787, which would have commanded their
assent. The Constitution owed as much, for its acceptance, to the weight
of character of its framers, as it did to their wisdom and ability, for
the intrinsic merits which that weight of character enforced.
It was fortunate, also, that Congress did nothing more than to recommend
the Convention, without undertaking to define its powers. The doubts
concerning its legality, which led many persons of great influence to
hesitate in sanctioning it, were thus removed, and the States were left
free to join in the movement, as an expedient to discover and remedy the
defects of the federal government, without fettering their delegates
with explicit instructions.[386] In this way the Convention, although
experimental and anomalous, derived its influence from the sources in
which it originated, and was enabled, though not without difficulty, to
meet the crisis in which the country was placed. That crisis was one of
a singular character; for the continued existence of the Union, and the
fate of republican governments, were both involved. It was felt and
admitted by the wisest men of that day, that if the Convention should
fail in devising and agreeing upon some system of government, at once
capable of pervading the country with an efficient control, and
essentially republican in its form, the Federal Union would be at an
end. But its dissolution, in the state in which the country then was,
must have been followed by an attempt to establish monarchical
government; because the State institutions were destitute of the
strength necessary to encounter the agitation which would have followed
the downfall of the federal power, and yet some substitute for that
power must have been found. But without civil war, and the most
frightful social convulsions, nothing in the nature of monarchy could
ever have been established in this country after the Revolution. "Those
who lean to a monarchical government," said Washington, "have either not
consulted the public mind, or they live in a region which (the levelling
principles in which they were bred being entirely eradicated) is much
more productive of monarchical ideas than is the case in the Southern
States, where, from the habitual distinctions which have always existed
among the people, one would have expected the first generation and the
most rapid growth of them. I am also clear, that, even admitting the
utility, nay, necessity, of the form, the period is not arrived for
adopting the change without shaking the peace of this country to its
foundation. That a thorough reform of the present system is
indispensable, no one, who has a capacity to judge, will deny; and with
hand and heart I hope the business will be essayed in a full convention.
After which, if more powers and more decision are not found in the
existing form, if it still wants energy and that secrecy and despatch
(either from the non-attendance or the local views of its members) which
are characteristic of good government, and if it shall be found (the
contrary of which, however, I have always been more afraid of than the
abuse of them) that Congress will, upon all proper occasions, exert the
powers which are given with a firm and steady hand, instead of
frittering them back to the States, where the members, in place of
viewing themselves in their national character, are too apt to be
looking,--I say, after this essay is made, if the system proves
inefficient, conviction of the necessity of a change will be
disseminated among all classes of the people. Then, and not till then,
in my opinion, can it be attempted without involving all the evils of
civil discord."[387]
There were other difficulties besides those which may be called legal,
or technical, attending this effort to revise the system of the federal
government. The failure of that system, as it had been put in operation
in 1781, had, to a great extent, chilled the hopes of many of the best
statesmen of America. It had been established under auspices which
seemed to promise far different fruits from those it had actually
produced. Its foundations were laid in the patriotism and national
feeling of the States. The concessions which had been made to secure a
union of republics, having various, and, in some respects, conflicting
interests, seemed at first to guarantee the prompt and faithful
performance of its obligations. But this fair promise had melted into
most unsubstantial performance. The Confederation was framed upon a
principle which never has enabled, and probably never will enable, a
government to become effective and permanent,--the principle of a
league.
Another and a very serious cause for discouragement was the sectional
jealousy and State pride which had been constantly growing, from the
Declaration of Independence to the time when the States were called upon
to meet each other upon broader grounds, and to make even larger
sacrifices than at any former period. It is difficult to trace to all
its causes the feeling which has at times arrayed the different
extremities of this Union against each other. It was very early
developed, after the different provinces were obliged to act together
for their great mutual objects of political independence; but, even in
its highest paroxysms, it has always at last found an antidote in the
deeper feelings and more sober calculations of a consistent patriotism.
Perhaps its prevalence and activity may with more truth be ascribed, in
every generation, to the ambition of men who find in it a convenient
instrument of local influence, rather than to any other cause. It is
certain, that, when it has raged most violently, this has been its chief
aggravating element. The differences of neither manners, institutions,
climate, nor pursuits would at any time have been sufficient to create
the perils to which the Union of the States has occasionally been
exposed, without the mischievous agency of men whose personal objects
are, for the time, subserved by the existence of such peculiarities. The
proof of this is to be found in the fact, that the seasonable sagacity
of the people has always detected the motives of those who have sought
to employ their passions, and has compelled them at last to give way to
that better order of men who have appealed to their reason.
The difficulty of getting the assent of all the States to radical
changes in the federal system, and the uncertainty as to the mode in
which such changes could be effectively adopted, were also among the
reasons which led many persons to regard the Convention as an experiment
of doubtful expediency. The States had hitherto acted only in their
corporate capacities, in all that concerned the formation and
modification of the Union. The idea of a Union founded on the direct
action of the people of the States, in a primary sense, and proceeding
to establish a federal government, of limited powers, in the same manner
in which the people of each State had established their local
constitutions, had not been publicly broached, and was not generally
entertained. Indeed, there was no expectation on the part of any State,
when the delegates to the Convention were appointed, that any other
principle would be adopted as the basis of action, than that by which
the Articles of Confederation contemplated that all changes should be
effected by the action of the States assembled in Congress, confirmed by
the unanimous assent of the different State legislatures.
The prevailing feeling, among the higher statesmen of the country, was,
that the Convention was an experiment of doubtful tendency, but one that
must nevertheless be tried. Washington, Madison, Jay, Knox, Edmund
Randolph, have all left upon record the evidence of their doubts and
their fears, as well as of their convictions of the necessity for this
last effort in favor of the preservation of a republican form of
government.[388] Hamilton advanced to meet the crisis, with perhaps
less hesitation than any of the Revolutionary statesmen. His great
genius for political construction; his large knowledge of the means by
which a regulated liberty may be secured; and the long study with which
he had contemplated the condition of the country, led him to enter the
Convention with more of eagerness and hope than most of its members. He
saw, with great clearness, that the difficulty which embarrassed nearly
all his contemporaries--the question of the mode of enacting a new
constitution--was capable of solution. He did not propound that solution
in advance of the assembling of the Convention; for it was eminently
necessary that the States should not be alarmed by the suggestion of a
principle so novel and so unlike the existing theory of the Union. But
he was fully prepared to announce it, so soon as it could be received
and acted upon.
* * * * *
It was under such auspices and with such views that the Convention
assembled at Philadelphia, on the fourteenth day of May in the year
seventeen hundred and eighty-seven.
At that time, the world had witnessed no such spectacle as that of the
deputies of a nation, chosen by the free action of great communities,
and assembled for the purpose of thoroughly reforming its constitution,
by the exercise, and with the authority, of the national will. All that
had been done, both in ancient and in modern times, in forming,
moulding, or modifying constitutions of government, bore little
resemblance to the present undertaking of the States of America. Neither
among the Greeks nor the Romans was there a precedent, and scarcely an
analogy. The ancient leagues of some of the cities or republics of
Greece did not amount to constitutions, in the sense of modern political
science; and the Roman republic was but the domination of a single race
of the inhabitants of a single city.
In modern Europe, we find no trace of political science until after the
nations were divided, and partial limits set to the different orders and
powers of the state. The feudal system, which acknowledged no relations
in society but those of lord and serf, necessarily forbade all
consideration of any forms of government which were not essentially
founded on that relation; and it was not until that relation had been in
some degree broken in upon, that there began to be any thing like
theoretical inquiries into natural rights. When this took place,--at the
end, or towards the end, of the Middle Ages,--the peculiar forms of the
European governments gave rise to inquiries into the relation of
sovereign and subject. From the beginning of the fifteenth down to the
end of the seventeenth century, there were occasional discussions on the
Continent, growing out of particular events, of such questions as the
right of the people to depose bad princes, and how far it was lawful to
resist oppression. But questions of constitutional form, or of the right
of the people to arrange and distribute the different powers of
government, or the best mode of doing it, did not arise at all.
In England, from the time of the Conquest, until Magna Charta had gone
far towards destroying the system, a feudal monarchy had precluded all
questions touching the form or the spirit of government. The chief
traits of the present constitution, which arose in a great measure from
the circumstance that the lower orders of the nobility became gradually
so much amalgamated with the people as to give rise to the distinct
power of the commons, have all along been inconsistent with the
enactment of new forms of civil polity; although from the time of the
Reformation to the Revolution of 1688, the active principles of English
freedom have, at different junctures, made advances of the utmost
importance. The foundations on which the Stuarts sought to establish
their throne were directly at variance with the spirit and principles of
the Reformation, which totally denied the doctrine of passive and
unlimited obedience, and which led to the struggles that gave birth to
the Puritans. Those severe reformers, whose church constitution was
purely republican, naturally sought to carry its principles into the
state. The result was the Parliamentary troubles of James the First, the
execution of Charles the First under the forms of judicial proceeding,
and the despotism of Cromwell under the forms of a commonwealth. Charles
the Second returned, untaught by all that had happened, to attempt the
reëstablishment of the Stuart principles of unlimited obedience; and
James the Second, who naturally united to them the Catholic religion,
being driven from his kingdom, the question arose of a vacant throne,
and how it should be filled. In all these events, however, from the
death of Elizabeth to the great discussions which followed the
abdication of James the Second, the idea of calling upon the people of
England to frame a government of their own choice, and to define the
limits and powers of its various departments, never arose. The
Convention Parliament discussed, and were summoned to discuss, but a
single fundamental question,--that involving the disposal of the crown.
Still, the political troubles of England gave rise to many theoretical
discussions of natural right, and of the origin and structure of
society. As soon as Charles the First was executed, this discussion
arose abroad, from his friends, who wrote, or influenced others to
write, in defence of the divine right of kings. Hobbes and Filmer
followed, in England, on the same side, and Milton, Locke, and Algernon
Sidney vindicated the natural and inalienable rights of the subject and
the citizen. In the works of these great writers, the foundations of
society are examined with an acuteness which has left little to be done
in the merely speculative part of political inquiry. But the practical
effect of their theories never went farther than the promotion, to a
greater or less extent, of the particular views which they desired to
inculcate concerning the existing constitution, or the particular events
out of which the discussions arose.
Nor should we forget what had been done in France, by the wise and
cautious Montesquieu, or by the vehement and passionate Rousseau, and
the writers of his school. The former, drawing all his views from
history and experience, undertook to show, from the antecedents of each
state, the character of its constitution, to explain and develop its
peculiar properties, and thence to determine the principles on which its
legislation should proceed. The latter, starting from an entirely
opposite point, and designing to write a treatise on Politics in the
widest sense of the term, became a mere theorist, and produced only
certain brilliant speculations upon the social compact, of a purely
democratic character, as fragments of a work which he never finished.
The crowd of writers, too, who preceded, and in part created the French
Revolution, which was just commencing its destructive activity as our
Constitution was formed, really contributed nothing of practical value
to the solution of such great questions as the mode of forming, vesting,
and distributing the various branches of sovereign power.
Thus there was little for American statesmen of that day to look to, in
the way of theories which had been practically proved to be sound and
useful. The constitution of England, it is true, presented to them
certain great maxims, the application of which was not unsuited to the
circumstances and habits of a people whose laws and institutions had
been derived from their English ancestors and their English blood. But
the constitution of England, embracing the three estates of King, Lords,
and Commons, had become what it was, only by the extortion from the
crown of the rights and privileges of the two orders of the people. The
American Revolution, on the other hand, had settled, as the fundamental
principle of American society, that all sovereignty resides originally
in the people; that they derive no rights by way of grant from any other
source; and consequently, that no powers or privileges can exist in any
portion of the people as distinct from the whole. The English
constitution could, therefore, furnish only occasional analogies for
particular details in the structure of departments, which might after
all really require to be founded on different fundamental principles.
But the great problem to be solved--for which English experience was of
no value--was, so to parcel out those portions of original sovereignty,
which the people of the States might be willing to withdraw from their
State institutions, as to constitute an efficient federal republic,
which yet would not control and absorb the powers that might be
reserved. But to comprehend the results that were accomplished, and to
understand the true nature of the system bequeathed to us, it is
indispensable to examine in detail the means and processes by which it
was formed. Before we turn, however, to this great subject, the
characters of the principal framers of the Constitution demand our
attention.
FOOTNOTES:
[351] "The war, as you have very justly observed," General Washington
wrote to James Warren of Massachusetts, in October, 1785, "has
terminated most advantageously for America, and a fair field is
presented to our view; but I confess to you, my dear Sir, that I do not
think we possess wisdom or justice enough to cultivate it properly.
Illiberality, jealousy, and local policy mix too much in all our public
counsels for the good government of the Union. In a word, the
Confederation appears to me to be little more than a shadow without the
substance, and Congress a nugatory body, their ordinances being little
attended to. 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 (who are the
creatures of our own making, appointed for a limited and short duration,
and who are amenable for every action and may be recalled at any moment,
and are subject to all the evils which they may be instrumental in
producing) sufficient powers to order and direct the affairs of the
same. By such policy as this, the wheels of government are clogged, and
our brightest prospects, and that high expectation which was entertained
of us by the wondering world, are turned into astonishment; and, from
the high ground on which we stood, we are descending into the vale of
confusion and darkness.
"That we have it in our power to become one of the most respectable
nations upon earth, admits, in my humble opinion, of no doubt, if we
would but pursue a wise, just, and liberal policy towards one another,
and keep good faith with the rest of the world. That our resources are
ample and increasing, none can deny; but while they are grudgingly
applied, or not applied at all, we give a vital stab to public faith,
and shall sink, in the eyes of Europe, into contempt.
"It has long been a speculative question among philosophers and wise
men, whether foreign commerce is of real advantage to any country; that
is, whether the luxury, effeminacy, and corruptions which are introduced
along with it are counterbalanced by the convenience and wealth which it
brings. But the decision of this question is of very little importance
to us. We have abundant reason to be convinced that the spirit of trade
which pervades these States is not to be repressed. It behooves us,
then, to establish just principles; and this cannot, any more than other
matters of national concern, be done by thirteen heads differently
constructed and organized. The necessity, therefore, of a controlling
power, is obvious; and why it should be withheld is beyond my
comprehension." Writings, IX. 139-141.
[352] They are named in this order, because it represents the order in
which they respectively acted upon the enlargement of the federal
powers.
[353] One of the necessary and immediate effects of the Revolution of
course was, the loss of the exclusive commercial advantages which this
country had enjoyed with Great Britain and her dependencies; and the
prohibitory acts and impositions, which fell with their full weight on
the American trade, after the peace, were particularly disastrous to the
trade of Massachusetts. The whale fishery, a business of great
importance, had brought into the Province, before the war, 172,000
guineas per annum, giving employment to American seamen, and not
requiring the use of any foreign materials, except a small quantity of
cordage. A duty was now laid on whale oil in England of £18 per tun. In
addition to the loss thus sustained, the exportation of lumber and
provisions in American bottoms to the West Indies was entirely
prohibited. Another great inconvenience, which came in fact to be
intolerable, was the vast influx of British goods, consigned to English
factors for sale, depriving the native merchants, manufacturers, and
artisans of the market. At the same time, the revenue of the State,
derived from impost and excise duties and a tax on auctions of one per
cent., fell short of the annual interest on the private debt of the
State, 30,000 pounds (currency) per annum, and a tax of 20,000 pounds
(currency) was computed to be necessary to cancel the debt, principal
and interest, in fifteen years, and pay the ordinary charges of the
government. Besides this, the State's proportion of the federal debt was
to be provided for. It was in this state of things that two remarkable
popular meetings were held in Boston, in the spring of 1785, to act upon
the subject of trade and navigation, and to call the attention of
Congress to the necessity for a national regulation of commerce. The
first was a meeting of the merchants and tradesmen, convened at Faneuil
Hall on the 18th of April. They appointed a committee to draft a
petition to Congress, representing the embarrassments under which the
trade was laboring, and took measures to cause the legislature to call
the attention of the delegation in Congress to the importance of
immediate action upon the subject. They also established a committee of
correspondence with the merchants in the other seaports of the United
States, to induce a similar action; and they entered into a pledge not
to purchase any goods of the British merchants and factors residing in
Boston, who had made very heavy importations, which tended to drain the
specie of the State. The other meeting was an assembly of the artisans
and mechanics, held at the Green Dragon Tavern, on the 28th of April, at
which similar resolutions were adopted. It is quite apparent, from these
proceedings, that all branches of industry were threatened with ruin;
and in the efforts to counteract the effects of the great influx of
foreign commodities, we trace the first movements of a popular nature
towards a national control over commerce.
[354] Governor Bowdoin's first Message to the Legislature, May 31, 1785.
[355] July 1, 1785.
[356] The delegation at that time consisted of Elbridge Gerry, Samuel
Holten, and Rufus King. Their "Reasons assigned for suspending the
delivery to Congress of the Governor's letter for revising and altering
the Confederation" may be found in the Life of Hamilton, II. 353. See
also Boston Magazine for 1785, p. 475.
[357] November 25, 1785.
[358] Letter of Messrs. Gerry, Holten, and King, delegates in Congress,
to the Governor of Massachusetts, assigning reasons for suspending the
delivery of his letter to Congress, dated September 3, 1785. Life of
Hamilton, II. 353, 357. "We are apprehensive," said they, "and it is our
duty to declare it, that such a measure would produce throughout the
Union an exertion of the friends of an aristocracy to send members who
would promote a change of government; and we can form some judgment of
the plan which such members would report to Congress. But should the
members be altogether republican, _such have been the declamations of
designing men_ against the Confederation generally, against the rotation
of members, which, perhaps, is the best check to corruption, and against
the mode of altering the Confederation by the unanimous consent of the
legislatures, which effectually prevents innovations in the articles by
intrigue or surprise, that we think there is great danger of a report
which would invest Congress with powers that the honorable legislature
have not the most distant intention to delegate."
[359] November 30th, 1785.
[360] The resolution introduced on the 30th of November was agreed to in
the Delegates, but before it was carried up to the Senate, it was
reconsidered and laid upon the table. Elliot's Debates, I. 114, 115.
Letter of Mr. Madison to General Washington, of December 9, 1785,
Washington's Works, IX. 508.
[361] What direct agency General Washington had in suggesting or
promoting this scheme, does not appear; although it seems to have
originated, or to have been agreed upon, at his house. His published
correspondence contains no mention of the visit of the commissioners;
but Chief Justice Marshall states that such a visit was made, and in
this statement he is followed by Mr. Sparks. (Marshall, V. 90; Sparks,
I. 428.) Mr. Madison, writing to General Washington in December, 1785,
refers to "the proposed appointment of commissioners for Virginia and
Maryland, _concerted at Mount Vernon_, for keeping up harmony in the
commercial regulations of the two States," and says that the meeting of
commissioners from all the States, which had then been proposed, "seems
naturally to grow out of it." (Washington's Writings, IX. 509.)
That Washington foresaw that the plan agreed upon at his house in March
would lead to a general assembly of representatives of all the States,
seems altogether probable, from the opinions which he entertained and
expressed to his correspondents, during that summer, upon the subject of
conferring adequate commercial powers upon Congress. (See his Letters to
Mr. McHenry and Mr. Madison of August 22d and November 30th, Writings,
IX. 121, 145.)
[362] This resolution, passed January 21, 1786, was in these words:
"_Resolved_, That Edmund Randolph, James Madison, Jr., Walter Jones, St.
George Tucker, Meriweather Smith, David Ross, William Ronald, and George
Mason, Esquires, be appointed commissioners, who, or any five of whom,
shall meet such commissioners as may be appointed by the other States in
the Union, at a time and place to be agreed on, to take into
consideration the trade of the United States; to examine the relative
situation and trade of the said States; to consider how far a uniform
system in their commercial regulations may be necessary to their common
interest and their permanent harmony; and to report to the several
States such an act relative to this great object, as, when unanimously
ratified by them, will enable the United States in Congress assembled
effectually to provide for the same; that the said commissioners shall
immediately transmit to the several States copies of the preceding
resolution, with a circular letter respecting their concurrence therein,
and proposing a time and place for the meeting aforesaid."
[363] Rhode Island, Maryland, and Georgia.
[364] "The committee," said the Report, "have thought it their duty
candidly to examine the principles of this system, and to discover, if
possible, the reasons which have prevented its adoption; they cannot
learn that any member of the Confederacy has stated or brought forward
any objections against it, and the result of their impartial inquiries
into the nature and operation of the plan has been a clear and decided
opinion, that the system itself is more free from well-founded
exceptions, and is better calculated to receive the approbation of the
several States, than any other that the wisdom of Congress can devise.
In the course of this inquiry, it most clearly appeared that the
requisitions of Congress for eight years past have been so irregular in
their operation, so uncertain in their collection, and so evidently
unproductive, that a reliance on them in future, as a source from whence
moneys are to be drawn to discharge the engagements of the Confederacy,
definite as they are in time and amount, would be not less dishonorable
to the understandings of those who entertain such confidence, than it
would be dangerous to the welfare and peace of the Union. The committee
are therefore seriously impressed with the indispensable obligation that
Congress are under of representing to the immediate and impartial
consideration of the several States, the utter impossibility of
maintaining and preserving the faith of the federal government by
temporary requisitions on the States, and the consequent necessity of an
early and complete accession of all the States to the revenue system of
the 18th of April, 1783." (Journals of Congress, XI. 35, 36. February
15, 1786.)
[365] Life of Hamilton, II. 374, 375
[366] The legislature of New York were willing to grant the duties to
Congress, but insisted upon reserving the power of levying and
collecting them; and, instead of making the collectors amenable to and
removable by Congress, they made them removable by the State, on
conviction for default or neglect of duty in the State courts. This was
a material departure from the plan recommended by Congress, and was
entirely inconsistent with the grants already made by several of the
States. See the Report and proceedings in Congress on the New York Act,
July 27-August 23, 1786. Journals, XI. 153, 184, 197, 200.
[367] New York was represented by Alexander Hamilton and Egbert Benson;
New Jersey by Abraham Clark, William C. Houston, and James Schureman;
Pennsylvania by Tench Coxe; Delaware by George Read, John Dickinson, and
Richard Bassett; Virginia by Edmund Randolph (Governor), James Madison,
Jr., and St. George Tucker.
[368] General Knox, writing to General Washington under date of January
14, 1787, says: "You ask what prevented the Eastern States from
attending the September meeting at Annapolis. It is difficult to give a
precise answer to this question. Perhaps torpidity in New Hampshire;
faction and heats about their paper money in Rhode Island; and jealousy
in Connecticut. Massachusetts had chosen delegates to attend, who did
not decline until very late, and the finding of other persons to supply
their places was attended with delay, so that the convention had broken
up by the time the new-chosen delegates had reached Philadelphia."
Writings of Washington, IX. 513.
[369] Report of the Annapolis Convention, Elliot's Debates, I. 116;
Hamilton's Works, II. 336.
[370] Article XIII.
[371] Report, ut supra.
[372] See his letter to James Duane, written in 1780, Life, I. 284-305.
[373] Ibid. The first public proposal of a continental convention is
assigned by Mr. Madison to one Pelatiah Webster, whom he calls "an able,
though not conspicuous citizen," and who made this suggestion in a
pamphlet published in May, 1781. Recent researches have not added to our
knowledge of this writer. In the summer of 1782, the legislature of New
York, under the suggestion of Hamilton, passed resolutions recommending
such a convention. On the 1st of April, 1783, Hamilton, in a debate in
Congress, expressed his desire to see a general convention take place.
In 1784, the measure was a good deal talked of among the members of
Congress, and in the winter of 1784-85, Noah Webster, an eminent
political writer in Connecticut, suggested "a new system of government,
which should act, not on the States, but directly on individuals, and
vest in Congress full power to carry its laws into effect." In 1786, the
subject was again talked of among members of Congress, before the
meeting at Annapolis. (Madison. Elliot, V. 117, 118.) But Hamilton's
letter to James Duane, in 1780, although not published at the time, was
of course earlier than any of these suggestions. In that letter, after
showing that the fundamental defect of the then existing system was a
want of power in Congress, he thus analyzes in advance the Articles of
Confederation, which had not then taken effect:--"But the Confederation
itself is defective, and requires to be altered. It is neither fit for
war nor peace. The idea of an uncontrollable sovereignty, in each State,
over its internal police, will defeat the other powers given to
Congress, and make our Union feeble and precarious. There are instances,
without number, where acts necessary for the general good, and which
rise out of the powers given to Congress, must interfere with the
internal police of the States; and there are as many instances in which
the particular States, by arrangements of internal police, can
effectually, though indirectly, counteract the arrangements of Congress.
You have already had examples of this, for which I refer to your own
memory. The Confederation gives the States, individually, too much
influence in the affairs of the army; they should have nothing to do
with it. The entire foundation and disposal of our military forces ought
to belong to Congress. It is an essential element of the Union; and it
ought to be the policy of Congress to destroy all ideas of State
attachment in the army, and make it look up wholly to them. For this
purpose, all appointments, promotions, and provisions whatsoever ought
to be made by them. It may be apprehended, that this may be dangerous to
liberty. But nothing appears more evident to me, than that we run much
greater risk of having a weak and disunited federal government, than one
which will be able to usurp upon the rights of the people. Already some
of the lines of the army would obey their States in opposition to
Congress, notwithstanding the pains we have taken to preserve the unity
of the army. If any thing would hinder this, it would be the personal
influence of the general,--a melancholy and mortifying consideration.
The forms of our State constitutions must always give them great weight
in our affairs, and will make it too difficult to blind them to the
pursuit of a common interest, too easy to oppose what they do not like,
and to form partial combinations, subversive of the general one. There
is a wide difference between our situation and that of an empire under
one simple form of government, distributed into counties, provinces, or
districts, which have no legislatures, but merely magistratical bodies
to execute the laws of a common sovereign. There the danger is that the
sovereign will have too much power, and oppress the parts of which it is
composed. In our case, that of an empire composed of confederate states,
each with a government completely organized within itself, having all
the means to draw its subjects to a close dependence on itself, the
danger is directly the reverse. It is, that the common sovereign will
not have power sufficient to unite the different members together, and
direct the common forces to the interest and happiness of the whole....
The Confederation, too, gives the power of the purse too entirely to the
State legislatures. It should provide perpetual funds in the disposal of
Congress, by a land-tax, poll-tax, or the like. All imposts upon
commerce ought to be laid by Congress, and appropriated to their use;
for without certain revenues, a government can have no power; that power
which holds the purse-strings absolutely, must rule. This seems to be a
medium which, without making Congress altogether independent, will tend
to give reality to its authority. Another defect in our system is, want
of method and energy in the administration. This has partly resulted
from the other defect; but in a great degree from prejudice and the want
of a proper executive. Congress have kept the power too much in their
own hands, and have meddled too much with details of every sort.
Congress is properly a deliberative corps, and it forgets itself when it
attempts to play the executive. It is impossible that a body, numerous
as it is, constantly fluctuating, can ever act with sufficient decision,
or with system. Two thirds of the members, one half the time, cannot
know what has gone before them, or what connection the subject in hand
has to what has been transacted on former occasions. The members who
have been more permanent will only give information that promotes the
side they espouse, in the present case, and will as often mislead as
enlighten. The variety of business must distract, and the proneness of
every assembly to debate must at all times delay. Lastly, Congress,
convinced of these inconveniences, have gone into the measure of
appointing boards. But this is, in my opinion, a bad plan. A single man,
in each department of the administration, would be greatly preferable.
It would give us a chance of more knowledge, more activity, more
responsibility, and, of course, more zeal and attention. Boards partake
of the inconveniences of larger assemblies; their decisions are slower,
their energy less, their responsibility more diffused. They will not
have the same abilities and knowledge as an administration by single
men. Men of the first pretensions will not so readily engage in them,
because they will be less conspicuous, of less importance, have less
opportunity of distinguishing themselves. The members of boards will
take less pains to inform themselves and arrive at eminence, because
they have fewer motives to do it. All these reasons conspire to give a
preference to the plan of vesting the great executive departments of the
state in the hands of individuals. As these men will be, of course, at
all times under the direction of Congress, we shall blend the advantages
of a monarchy in one constitution.... I shall now propose the remedies
which appear to me applicable to our circumstances, and necessary to
extricate our affairs from their present deplorable situation. The first
step must be to give Congress powers competent to the public exigencies.
This may happen in two ways: one, by resuming and exercising the
discretionary powers I suppose to have been originally vested in them
for the safety of the States, and resting their conduct on the candor of
their countrymen and the necessity of the conjuncture; the other, _by
calling immediately a convention of all the States_, with full authority
to conclude finally upon a general confederation, stating to them
beforehand explicitly the evils arising from a want of power in
Congress, and the impossibility of supporting the contest on its present
footing, that the delegates may come possessed of proper sentiments, as
well as proper authority, to give efficacy to the meeting. _Their
commission should include a right of vesting Congress with the whole or
a proportion of the unoccupied lands, to be employed for the purpose of
raising a revenue, reserving the jurisdiction to the States by whom they
are granted._ The Confederation, in my opinion, should give Congress a
complete sovereignty; except as to that part of internal police which
relates to the rights of property and life among individuals, and to
raising money by internal taxes. It is necessary that every thing
belonging to this should be regulated by the State legislatures.
Congress should have complete sovereignty in all that relates to war,
peace, trade, finance; and to the management of foreign affairs; the
right of declaring war, of raising armies, officering, paying them,
directing their motions in every respect; of equipping fleets, and doing
the same with them; of building fortifications, arsenals, magazines,
&c.; of making peace on such conditions as they think proper; of
regulating trade, determining with what countries it shall be carried
on; granting indulgences; laying prohibitions on all the articles of
export or import; imposing duties, granting bounties and premiums for
raising, exporting, or importing; and applying to their own use the
product of these duties, only giving credit to the States on whom they
are raised in the general account of revenues and expense; instituting
admiralty courts, &c.; of coining money, establishing banks on such
terms, and with such privileges, as they think proper; appropriating
funds, and doing whatever else relates to the operations of finance;
transacting every thing with foreign nations; making alliances offensive
and defensive, and treaties of commerce, &c.... The second step I would
recommend is, that Congress should instantly appoint the following great
officers of state: a Secretary for Foreign Affairs; a President of War;
a President of Marine; a Financier; a President of Trade.... These
officers should have nearly the same powers and functions as those in
France analogous to them, and each should be chief in his department,
with subordinate boards, composed of assistants, clerks, &c., to execute
his orders." (Life of Hamilton, I. 284-305.)
[374] Abstract of an Address made to the Legislature of Massachusetts,
by the Hon. Rufus King, in October, 1786. Boston Magazine for the year
1786, p. 406.
[375] Mr. Madison's Notes of Debates in the Congress of the
Confederation. Elliot, V. 96.
[376] This was the opinion of Mr. Jay. He thought that no alterations
should be attempted, unless deduced from the only source of just
authority, the people. He seems to have considered that, if the people
of the States, acting through their primary conventions, were to send
delegates to a general convention, with authority to alter the Articles
of Confederation, the new system would rest upon the authority of the
people, without further sanction. See his letter to General Washington,
of date January 7, 1787. Writings of Washington, IX. 510.
[377] Letter of General Knox to General Washington, January 14, 1787.
Writings of Washington, IX. 513.
[378] Madison. Elliot, V. 96.
[379] It was brought before them by the speech of the Governor
(Clinton), informing them of the resolutions of Congress, which had
requested an immediate call of the legislature to consider the revenue
system, "a subject," he observed, "which had been repeatedly submitted
to them, and must be well understood."
[380] Journals, XII. 15. February 21, 1787.
[381] Ibid. The vote rejecting the impost bill was taken on the 15th of
February. The resolution of instructions was passed on the 17th, and was
laid before Congress on the 21st.
[382] Mr. Madison has recorded the suspicions with which this resolution
of the New York legislature was received. Their previous refusal of the
impost act, and their known anti-federal tendencies, gave rise, he says,
to the belief that their object was to obtain a convention without
having it called under the authority of Congress, or else, by dividing
the plans of the States in their appointments of delegates, to frustrate
them all. (Madison. Elliot, V. 96.) But whatever grounds there might
have been for either of these suspicions, the latter certainly was not
well founded. The New York resolution was drafted by Hamilton, and
although it was passed by a body in which a majority had not exhibited a
disposition to enlarge the authority of Congress, it was manifestly not
intended to prevent the adoption of the plan of a convention. It
contemplated the passage by Congress of an act, recommending the States
to institute a convention of representatives of the States to revise the
Articles of Confederation; and the resolution introduced by the New York
delegation into Congress proposed that the alterations and amendments
which the convention might consider necessary to render the Articles of
Confederation "adequate to the preservation and support of the Union,"
should be reported to Congress and to the States respectively, but did
not direct how they should be adopted. This would have left open a great
question, and seemed to be a departure from the mode in which the
Articles of Confederation directed that amendments should be made.
Probably it was Hamilton's intention to leave the form in which the new
system should be adopted for future action, without fettering the
movement by prescribing the mode before the convention had assembled.
But this course was practically impossible. Congress could not be
prevailed upon to recommend a convention, without making the condition
that the new provisions should be reported to Congress and confirmed by
the States. This gave rise to great embarrassment in the convention,
when it came to be admitted that the Confederation must be totally
superseded, and not _amended_; and it was finally disregarded. But it
was the only mode in which the convention could have been recommended by
Congress, and without that recommendation, probably, it could not have
been instituted.
[383] The resolution introduced by the Massachusetts delegation, when
that of New York had been rejected, after being amended, was finally
passed in the following terms: "Whereas, there is provision in the
Articles of Confederation and Perpetual Union for making alterations
therein, by the assent of a Congress of the United States, and of the
legislatures of the several States; and whereas experience hath evinced
that there are defects in the present Confederation, as a mean to remedy
which several of the States, and particularly the State of New York, by
express instructions to their delegates in Congress, have suggested a
convention for the purposes expressed in the following resolution; and
such a convention appearing to be the most probable means of
establishing in these States a firm national government, _Resolved_,
That, in the opinion of Congress, it is expedient that, on the second
Monday day in May next, a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the sole
express purpose of revising the Articles of Confederation, and reporting
to Congress and the several legislatures such alterations and provisions
therein as shall, when agreed to in Congress and confirmed by the
States, render the Federal Constitution adequate to the exigencies of
government and the preservation of the Union." Journals, XII. 17.
February 21, 1787.
[384] The Articles of Confederation did not expressly require that
amendments should be prepared and proposed in Congress. The thirteenth
Article provided, that no alteration should be made, unless it should
"be agreed to in a Congress of the United States, and be afterwards
confirmed by the legislatures of every State." But it was clearly
implied by this, that Congress were to have the power of recommending
alterations, and this power was exercised in 1783, with regard to the
rule of apportionment.
[385] Governor Randolph of Virginia writing to General Washington, on
the 11th of March, 1787, and urging him to attend the Convention, said:
"I must call upon your friendship to excuse me for again mentioning the
Convention at Philadelphia. Your determination having been fixed on a
thorough review of your situation, I feel like an intruder when I again
hint a wish that you would join the delegation. But every day brings
forth some new crisis, and the Confederation is, I fear, the last anchor
of our hope. Congress have taken up the subject, and appointed the
second Monday in May next as the day of meeting. _Indeed, from my
private correspondence, I doubt whether the existence of that body, even
through this year, may not be questionable under our present
circumstances._" Sparks's Washington, IX. 243, note.
[386] The States of Virginia, New Jersey, Pennsylvania, North Carolina,
and Delaware had appointed their delegates to the Convention before it
was sanctioned by Congress. Virginia led the way; and the following
preamble to her act shows with what motives and objects she did so.
"Whereas, the commissioners who assembled at Annapolis, on the 14th day
of September last, for the purpose of devising and reporting the means
of enabling Congress to provide effectually for the commercial interests
of the United States, have represented the necessity of extending the
revision of the federal system to all its defects, and have recommended
that deputies for that purpose be appointed by the several legislatures,
to meet in convention in the city of Philadelphia, on the 2d day of May
next,--a provision which was preferable to a discussion of the subject
in Congress, where it might be too much interrupted by the ordinary
business before them, and where it would, besides, be deprived of the
valuable counsels of sundry individuals who are disqualified by the
constitution or laws of particular States, or restrained by peculiar
circumstances from a seat in that assembly: And whereas the General
Assembly of this Commonwealth, taking into view the actual situation of
the Confederacy, as well as reflecting on the alarming representations
made from time to time by the United States in Congress, particularly in
their act of the 15th day of February last, can no longer doubt that the
crisis is arrived at which the good people of America are to decide the
solemn question, whether they will, by wise and magnanimous efforts,
reap the just fruits of that independence which they have so gloriously
acquired, and of that Union which they have cemented with so much of
their common blood,--or whether, by giving way to unmanly jealousies and
prejudices, or to partial and transitory interests, they will renounce
the auspicious blessings prepared for them by the Revolution, and
furnish to its enemies an eventful triumph over those by whose virtue
and valor it has been accomplished: And whereas the same noble and
extended policy, and the same fraternal and affectionate sentiments,
which originally determined the citizens of this Commonwealth to unite
with their brethren of the other States in establishing a federal
government, cannot but be felt with equal force now as motives to lay
aside every inferior consideration, and to concur in such further
concessions and provisions as may be necessary to secure the great
objects for which that government was instituted, and to render the
United States as happy in peace as they have been glorious in war: _Be
it therefore enacted_, &c., That seven commissioners be appointed, by
joint ballot of both houses of Assembly, who, or any three of them, are
hereby authorized as deputies from this Commonwealth to meet such
deputies as may be appointed and authorized by other States, to assemble
in convention at Philadelphia, as above recommended, and to join with
them in devising and discussing all such alterations and further
provisions as may be necessary to render the Federal Constitution
adequate to the exigencies of the Union; and in reporting such an act,
for that purpose, to the United States in Congress, as, when agreed to
by them, and duly confirmed by the several States, will effectually
provide for the same." (Elliot, I. 132.) The instructions of New Jersey
to her delegates were, "to take into consideration the state of the
Union as to trade and other important objects, and of devising such
other provisions as shall appear to be necessary to render the
constitution of the federal government adequate to the exigencies
thereof." (Ibid. 128.) The act of Pennsylvania provided for the
appointment of deputies to join with the deputies of other States "in
devising, deliberating on, and discussing all such alterations and
further provisions as may be necessary to render the Federal
Constitution fully adequate to the exigencies of the Union, and in
reporting such act or acts, for that purpose, to the United States in
Congress assembled, as, when agreed to by them, and duly confirmed by
the several States, will effectually provide for the same." (Ibid. 130.)
The instructions of Delaware were of the same tenor. (Ibid. 131.) The
act of North Carolina directed her deputies "to discuss and decide upon
the most effectual means to remove the defects of our Federal Union, and
to procure the enlarged purposes which it was intended to effect; and
that they report such an act to the General Assembly of this State, as,
when agreed to by them, will effectually provide for the same." (Ibid.
135.) The instructions to the delegates of New Hampshire were of the
same tenor. (Ibid. 126.) The appointment of the delegates of
Massachusetts was made with reference to the terms of the resolve of
Congress recommending the Convention, and for the purposes declared
therein. (Ibid. 126, 127.) The appointment of Connecticut was made with
the same reference, and with the further direction "to discuss upon such
alterations and provisions, agreeably to the general principles of
republican government, as they shall think proper to render the Federal
Constitution adequate to the exigencies of government and the
preservation of the Union; and they are further directed, pursuant to
the said act of Congress, to report such alterations and provisions as
may be agreed to by a majority of the United States represented in
convention, to the Congress of the United States, and to the General
Assembly of this State." (Ibid. 127.) The resolutions of New York,
Maryland, South Carolina, and Georgia pursued nearly the same terms with
the resolve of Congress. (Ibid. 127, 131, 136, 137.)
[387] Sparks's Washington, IX. 223, 225, 230, 236, 508-520.
[388] Sparks's Washington, IX. 223, 225, 230, 236, 508-520.
CHAPTER VII.
THE FRAMERS OF THE CONSTITUTION.--WASHINGTON, PRESIDENT OF THE
CONVENTION.
The narrative to which the reader has thus far attended must now be
interrupted for a while, that he may pause upon the threshold of an
assembly which had been summoned to the grave task of remodelling the
constitution of this country, and here consider the names and characters
of the men to whom its responsible labors had been intrusted. The civil
deeds of statesmen and lawgivers, in establishing and forming
institutions, incorporating principles into the forms of public
administration, and setting up the defences of public security and
prosperity, are far less apt to attract and hold the attention of
mankind, than the achievements of military life. The name, indeed, may
be for ever associated with the work of the hand; but the mass of
mankind do not study, admire, or repeat the deeds of the lawgiver, as
they do those of the hero. Yet he who has framed a law, or fashioned an
institution in which some great idea is made practical to the conditions
of human existence, has exercised the highest attributes of human
reason, and is to be counted among the benefactors of his race.
The framers of the Constitution of the United States assembled for their
work amidst difficulties and embarrassments of an extraordinary nature.
No general concert of opinion had taken place as to what was best, or
even as to what was possible to be done. Whether it were wise to hold a
convention, whether it were even legal to hold it, and whether, if held,
it would be likely to result in any thing useful to the country, were
points upon which the most opposite opinions prevailed in every State of
the Union. But it was among the really fortunate, although apparently
unhappy, circumstances under which they were assembled, that the country
had experienced much trial, suffering, distress, and failure. It has
been a disagreeable duty to describe the disasters and errors of a
period during which the national character was subjected to the
discipline of adversity. We now come to the period of compensation which
such discipline inevitably brings.
There is a law of the moral government of the universe, which ordains
that all that is great and valuable and permanent in character must be
the result, not of theoretical teaching, or natural aspiration,--of
spontaneous resolve, or uninterrupted success,--but of trial, of
suffering, of the fiery furnace of temptation, of the dark hours of
disappointment and defeat. The character of the man is distinguishable
from the character of the child that he once was, chiefly by the effects
of this universal law. There are the same natural impulses, the same
mental, moral, and physical constitution, with which he was born into
the world. What is it that has given him the strength, the fortitude,
the unchanging principle, and the moral and intellectual power, which he
exhibits in after years? It has not been constant pleasure and success,
nor unmingled joy. It has been the hard discipline of pain and sorrow,
the stern teachings of experience, the struggle against the consequences
of his own errors, and the chastisement inflicted by his own faults.
This law pertains to all human things. It is as clearly traceable in its
application to the character of a people, as to that of an individual;
and as the institutions of a people, when voluntarily formed by them out
of the circumstances of their condition, are necessarily the result of
the previous discipline and the past teachings of their career, we can
trace this law also in the creation and growth of what is most valuable
in their institutions. When we have so traced it, the unalterable
relations of the moral universe entitle us to look for the elements of
greatness and strength in whatever has been the product of such
teachings, such discipline, and such trials.
The Constitution of the United States was eminently the creature of
circumstances;--not of circumstances blindly leading the blind to an
unconscious submission to an accident, but of circumstances which
offered an intelligent choice of the means of happiness, and opened,
from the experience of the past, the plain path of duty and success,
stretching onward to the future. All that has been said in the previous
chapters tends to illustrate this fact. We have seen the American
people,--divided into separate and isolated communities, without
nationality, except such as resulted from a general community of
origin,--undertaking together the work of throwing off the domination of
their parent state. We have seen them enter upon this undertaking
without forming any political bond of a national character, and without
instituting any proper national agency. We have seen, that the first
government which they created was, practically, a mere general council
for the recommendation of measures to be adopted and executed by the
several constituencies represented. We have seen no machinery instituted
for the accomplishment, by the combined authority of these separate
communities, of the great objects at which they were aiming; and
although in theory the Revolutionary Congress would have been entitled
to assume and exercise the powers necessary to accomplish the objects
for which it was assembled, we have seen that the people of the country,
from a jealous and unreasonable fear of all power, would not permit this
to be done.
The consequences of this want of power were inevitable. An army could
not be kept in the field, on a permanent footing, capable of holding the
enemy in check. The city of New York fell into the hands of that enemy,
the intermediate country between that city and the city of Philadelphia
was overrun, and from the latter capital, the seat of the general
government, the Congress was obliged to fly before the invading foe.
Taught by these events that a more effective union was necessary to the
deliverance of the country from a foreign yoke, the States at length
united in the establishment of a government, the leading purpose of
which was mutual defence against external attacks, and called it a
Confederation. But its powers were so restricted, and its operations so
clogged and impeded by State jealousies and State reservations of power,
that it lacked entirely the means of providing the sinews of war out of
the resources of the country, and was driven to foreign loans and
foreign arms for the means of bringing that war to a close. A vast load
of debt was thus accumulated upon the country; and, as soon as peace was
established, it became apparent, that, while the Confederation was a
government with the power of contracting debts, it was without the power
of paying them. This incapacity revealed the existence of great objects
of government, without which the people of the several States could
never prosper, and which, in their separate capacities, the States
themselves could never accomplish.
Now it is as certain as history can make any thing, that the whole
period, from the commencement of the war to the end of the
Confederation, was a period of great suffering to the people of the
United States. The trials and hardships of war were succeeded by the
greater trials and hardships of a time of peace, in which the whole
nation experienced that greatest of all social evils, the want of an
efficient and competent government. There was a gloom upon the minds of
men,--a sense of insecurity,--a consciousness that American society was
not fulfilling the ends of its being by the development of its resources
and the discharge of its obligations,--which constituted altogether a
discipline and a chastisement of the whole nation, and which we are not
at liberty to regard as the mere accidents of a world ungoverned by an
overruling Power.
It was from the midst of that discipline that the American people came
to the high undertaking of forming for themselves a constitution, by
which to work out the destiny of social life in this Western World. Had
they essayed their task after years of prosperity, and after old
institutions and old forms of government had, upon the whole, yielded a
fair amount of success and happiness, they would have wanted that power
which comes only from failure and disappointment,--the power to adapt
the best remedy to the deepest social defects, and to lay hold on the
future with the strength given by the hard teachings of the past.
Civil liberty,--American liberty,--that liberty which resides in law,
which is protected by great institutions and upheld by the machinery of
a popular government,--is not simply the product of a desire, or a
determination, to be free. Such liberty comes, if it comes at all, only
after serious mistakes,--after frightful deficiencies have taught men
that power must be lodged somewhere. It comes when a people have
learned, by adversity and disappointment, that a total negation of all
authority, and a jealousy of all restraint, can end only in leaving
society without the defences and securities which nothing but law can
raise for it. It comes when the passions are exhausted, and the
rivalries of opposing interests have worn themselves out, in the vain
endeavor to reach what reason and justice and self-sacrifice alone can
procure. Then, and then only, is the intellect of a nation sure to
operate with the fidelity and energy of its native power. Then only does
it grasp the principles of freedom with the ability to incorporate them
into the practical forms of a public administration whose strength and
energy shall give them vitality, and prevent their diffusion into the
vagueness of mere abstractions, which return to society the cold and
mocking gift of a stone for its craving demand of bread.
* * * * *
The Convention was a body of great and disinterested men, competent,
both morally and intellectually to the work assigned them. High
qualities of character are requisite to the formation of a system of
government for a wide country with different interests. Mere talent will
not do it. Intellectual power and ingenuity alone cannot compass it.
There must be a moral completeness in the characters of those who are to
achieve such a work; for it does not consist solely in devising schemes,
or creating offices, or parcelling out jurisdictions and powers. There
must be adaptation, adjustment of conflicting interests, reconciliation
of conflicting claims. There must be the recognition and admission of
great expedients, and the sacrifice, often, of darling objects of
ambition, or of local policy, to the vast central purpose of the
greatest happiness of the greatest number. Hence it is, that, wherever
this mighty work is to be successfully accomplished, there must be a
high sense of justice; a power of concession; the qualities of
magnanimity and patriotism; and that broad moral sanity of the
intellect, which is farthest removed from fanaticism, intolerance, or
selfish adhesion either to interest or to opinion.
These qualities were preëminently displayed by many of the framers of
the Constitution. There was certainly a remarkable amount of talent and
intellectual power in that body. There were men in that assembly, whom,
for genius in statesmanship, and for profound speculation in all that
relates to the science of government, the world has never seen
overmatched.
But the same men, who were most conspicuous for these brilliant gifts
and acquirements, for their profound theories and their acute perception
of principles, were happily the most marked, in that assembly, for their
comprehensive patriotism, their justice, their unselfishness and
magnanimity. Take, for instance, Hamilton. Where, among all the
speculative philosophers in political science whom the world has seen,
shall we find a man of greater acuteness of intellect, or more capable
of devising a scheme of government which should appear theoretically
perfect? Yet Hamilton's unquestionable genius for political disquisition
and construction was directed and restrained by a noble generosity, and
an unerring perception of the practicable and the expedient, which
enabled him to serve mankind without attempting to force them to his own
plans, and without compelling them into his own views. Take Washington,
whose peculiar greatness was a moral elevation, which secured the wisest
and best use of all his powers in either civil or military life. Take
Madison, who certainly lacked neither ability nor inclination for
speculative inquiries, and who had a mind capable of enforcing the
application of whatever principles he espoused. Yet his calm good sense,
and the tact with which he could adapt theory to practice, were no less
among his prominent characteristics. Take Franklin, who sometimes held
extreme opinions, and occasionally pushed his peculiar fancies,
springing from an excess of worldly wisdom, to the utmost verge of
truth, but whose intellect was tempered, and whose whole character was
softened, by the wide and varied experience of a life that had been
commenced in obscurity, and was now closing with the honors of a
reputation that filled the Eastern as well as the Western hemisphere.
Take Gouverneur Morris, who was ardent, impulsive, and not disinclined
to tenacity of opinion; but he rose above all local and narrow objects,
and embraced, in the scope of his clear and penetrating vision, the
happiness and welfare of this whole continent.
It was a most fortunate thing for America, that the Revolutionary age,
with its hardships, its trials, and its mistakes, had formed a body of
statesmen capable of framing for it a durable constitution. The leading
persons in the Convention which formed the Constitution had been actors,
either in civil or military life, in the scenes of the Revolution. In
those scenes their characters as American statesmen had been formed.
When the condition of the country had fully revealed the incapacity of
its government to provide for its wants, these men were naturally looked
to, to construct a system which should save it from anarchy. And their
great capacities, their high, disinterested purposes, their freedom from
all fanaticism and illiberality, and their earnest, unconquerable faith
in the destiny of their country, enabled them to found that government,
which now upholds and protects the whole fabric of liberty in the States
of this Union.
Of course no such assembly, in that or in any other age, in this or in
any other country, could be called together for such a purpose, without
exhibiting a great diversity of opinions, wishes, and views. The very
object for which they were assembled was of a nature to develop, to the
fullest extent, the most conflicting opinions and the most opposite
theories. That object was to devise a system which should best secure
the permanent liberty and happiness of a vast country. What subject, in
the whole range of human thought and human endeavor, could be more
complex than this? What occasion, among all the diversities of human
affairs, could present a wider field for honest differences of opinion,
and for severe conflicts of mind with mind? Yet it should never be
forgotten, as the merit of this assembly, that, collectively and
individually, they were animated by the most pure and exclusive devotion
to the object for which they were called together. It was this high
patriotism, this deep and never-ceasing consciousness that the great
experiment of republican liberty turned on the result of their labors,
as on the hazard of a die, that brought at last all conflicts of
interest, all diversities of opinion and feeling, into a focus of
conciliation and unanimity. More than once the reader will find them on
the point of separating without having accomplished any thing; and more
than once he will see them recalled to their mighty task by the
eloquence of some master-spirit, who knew how to touch the key-note of
that patriotic feeling, which was never wholly lost in the jarring
discords of debate and intellectual strife. For four months the
laborious effort went on. The serene and unchanging presence of
Washington presided over all. The chivalrous sincerity and
disinterestedness of Hamilton pervaded the assembly with all the power
of his fascinating manners. The flashing eloquence of Gouverneur Morris
recalled the dangers of anarchy, which must be accepted as the
alternative of an abortive experiment. The calm, clear, statesmanlike
views of Madison, the searching and profound expositions of King, the
prudent influence of Franklin, at length ruled the hour.
In examining their work, and in reading all that is left to us of
their discussions, we are to consider the materials out of which they
had to frame a system of republican liberty, and the point of view,
in reference to the whole subject, at which they stood. We are to
remember how little the world had then seen of real liberty united
with personal safety and public security; and how entirely novel the
undertaking was, to form a complete system of government, wholly
independent on tradition, exactly defined in a written constitution,
to be created at once, and at once set in motion, for the
accomplishment of the great objects of human liberty and social
progress. The examples of Greece and Rome, the modern republics of
Italy, the federal relations of the Swiss Cantons, and the distant
approach to republicanism that had been seen in Holland, might be
resorted to for occasional and meagre illustrations of a few general
principles. But, unquestionably, the country which, up to that moment,
had exhibited, by the working of its government, the greatest amount
of liberty combined with the greatest public security, was England.
England, however, was a monarchy; and monarchy was the system which
they both desired, and were obliged, to avoid. If it was within the
range of human possibility to establish a system of republican
government, which would fulfil its appropriate duties, over this vast
and rapidly extending country, _that_ they felt, one and all, to be
their great task. On the other hand, they knew that, if to that form
they could not succeed in giving due stability and wisdom, it would
be, in the words of Hamilton, "disgraced and lost among ourselves,
disgraced and lost to mankind for ever."[389] Here was their
trial,--the difficulty of all their difficulties; and it was here that
they exhibited a wisdom, a courage, and a capacity, which have been
surpassed by no other body of lawgivers ever assembled in the world.
Their country had, a few years before, passed through a long and
distressing war with its parent state. The yoke of her domination had
been thrown off, and its removal was naturally followed by a loosening
of the bands of all authority, and an indisposition to all new
restraints. The American Colonies had become independent States; and as
the spirit of liberty which pervaded them made individuals impatient of
control in their political relations, so the States reflected the same
spirit in their corporate conduct, and looked with jealousy and distrust
upon all powers which were not to be exercised by themselves. Yet it was
clear that there were powers and functions of government, which, for the
absolute safety of the country, must be withdrawn from the States, and
vested in some national head, which should hold and exercise them in the
name of the whole, for the good of the whole. The great question was,
what that national head was to be; and the great service performed by
the framers of the Constitution consisted in devising a system by which
a national sovereignty might be endowed with energy, dignity, and power,
and the forms and substance of popular liberty still be preserved; a
system by which a supreme authority in all the matters which it touched
might be created, resting directly on the popular will, and to be
exercised, in all coming time, through forms and institutions under
which that will should have a direct and perpetual and perpetually
renewed expression. This they accomplished. They accomplished it, too,
without abolishing the State governments, and without impairing a single
personal right which existed before they began their work. They
accomplished it without violence; without the disruption of a single
fibre in that whole delicate tissue of which society is made up. No drop
of blood was shed to establish this government, the work of their hands;
and no moment of interruption occurred to the calm, even tenor of the
pursuits of men,--the daily on-goings of society, in which the stream of
human life and happiness and progress flows on in beneficence and peace.
* * * * *
First upon the list of those who had been called together for this great
purpose, we are to mention him, without whose presence and countenance
all men felt that no attempt to meliorate the political condition of the
country could succeed.
I have already given an account of the proceedings which led directly to
the calling of the Convention; and have mentioned the interesting fact,
that the impulse to those proceedings was given at Mount Vernon. Thither
General Washington had retired, at the close of the war, with no thought
of ever engaging again in public affairs. He supposed that for him the
scene was closed. "The noontide of life," said he, in a letter to the
Marchioness de Lafayette, "is now past, with Mrs. Washington and
myself; and all we have to do is to glide gently down a stream which no
human effort can ascend."[390]
But wise and far-seeing as he was, he did not foresee how soon he was to
be called from that grave and sweet tranquillity. He was busy with the
concerns of his farm; he was tasting the happiness of home, from which
he had been absent nine long years; he was "cultivating the affections
of good men, and practising the domestic virtues." But it was not in his
nature to be inattentive to the concerns of that country for whose
welfare he had labored and suffered so much. He maintained an active
correspondence with several of the most eminent and virtuous of his
compatriots in different parts of the Union; and in that correspondence,
running through the years 1784, 1785, and 1786, there exists the most
ample evidence of the downward tendency of things, and of the fears it
excited.
It had become evident to him that we never should establish a national
character, nor be justly considered and respected by the nations of
Europe, without enlarging the powers of the federal government for the
regulation of commerce. The objection which had been hitherto urged,
that some States might be more benefited than others by a commercial
regulation, seemed to him to apply to every matter of general utility.
"We are," said he, writing in the summer of 1785, "either a united
people under one head, and for federal purposes, or we are thirteen
independent sovereignties eternally counteracting each other. If the
former, whatever such a majority of the States as the constitution
points out conceives to be for the benefit of the whole, should, in my
humble opinion, be submitted to by the minority. Let the Southern States
always be represented; let them act more in union; let them declare
freely and boldly what is for the interest of, and what is prejudicial
to, their constituents; and there will, there must be, an accommodating
spirit. In the establishment of a navigation act, this, in a particular
manner, ought and will doubtless be attended to. If the assent of nine
States, or, as some propose, of eleven, is necessary to give validity to
a commercial system, it insures this measure, or it cannot be obtained.
"Wherein, then, lies the danger? But if your fears are in danger of
being realized, cannot certain provisos in the ordinance guard against
the evil? I see no difficulty in this, if the Southern delegates would
give their attendance in Congress, and follow the example, if it should
be set them, of adhering together to counteract combination. I confess
to you candidly, that I can foresee no evil greater than disunion; than
those unreasonable jealousies (I say _unreasonable_, because I would
have a _proper_ jealousy always awake, and the United States on the
watch to prevent individual States from infracting the constitution with
impunity) which are continually poisoning our minds and filling them
with imaginary evils for the prevention of real ones."[391]
But, while he desired to see the ninth article of the Confederation so
amended and extended as to give adequate commercial powers, he feared
that it would be of little avail to give them to the existing Congress.
The members of that body seemed to him to be so much afraid of exerting
the powers which they already possessed, that they lost no opportunity
of surrendering them, or of referring their exercise to the individual
States. The speculative question, whether foreign commerce is of any
real advantage to a country, he regarded as of no importance, convinced
that the spirit of trade which pervaded these States was not to be
restrained. It behooved us, therefore, to establish just principles of
commercial regulation, and this could not, any more than other matters
of national concern, be done by thirteen heads differently constructed
and organized. The necessity, in fact, of a controlling power was
obvious, and why it should be withheld was, he declared, beyond his
comprehension. With these views, he looked to the Convention at
Annapolis as likely to result in a plan which would give to the federal
government efficient powers for all commercial purposes, although he
regretted that more objects had not been embraced in the project for the
meeting.
The failure of this attempt to enlarge the commercial powers of
Congress, and the recommendation of a general convention made by the
Annapolis commissioners, placed the country in an extremely delicate
situation. Washington thought, when this recommendation was announced,
that the people were not then sufficiently misled to retract their
error, and entertained some doubt as to the consequences of an attempt
to revise and amend the Articles of Confederation. Something, however,
must be done, he said, or the fabric which was certainly tottering,
would inevitably fall. "I think," said he, "often of our situation, and
view it with concern. From the high ground we stood upon, from the plain
path which invited our footsteps, to be so fallen, so lost, is really
mortifying; but virtue, I fear, has in a great degree taken its
departure from our land, and the want of a disposition to do justice is
the source of the national embarrassments; for, whatever guise or color
is given to them, this I apprehend is the origin of the evils we now
feel, and probably shall labor under for some time yet."[392]
At this time the legislature of Virginia were acting upon the subject of
a delegation to the Federal Convention, and a general wish was felt to
place Washington at the head of it. No opposition had been made in that
body to the bill introduced for the purpose of organizing and
instructing such a delegation, and it was thought advisable to give the
proceeding all the weight which could be derived from a single State. To
a private intimation of this desire of the legislature he returned a
decided refusal. Several obstacles appeared to him to put his attendance
out of the question. The principal reason that he assigned was, that he
had already declined a re-election as President of the Society of the
Cincinnati, and had signified that he should not attend their triennial
general meeting, to be held in Philadelphia in the same month with the
Convention.[393] He felt a great reluctance to do any thing which might
give offence to those patriotic men, the officers of the army who had
shared with him the labors and dangers of the war. He had declined to
act longer with that Society, because the motives and objects of its
founders had been misconceived and misrepresented. Originally a
charitable institution, it had come to be regarded as anti-republican in
its spirit and tendencies. Desiring, on the one hand, to avoid the
charge of deserting the officers who had nobly supported him, and had
always treated him with the greatest attention and attachment; and
wishing, on the other hand, not to be thought willing to give his
support to an institution generally believed incompatible with
republican principles,--he had excused his attendance upon the ground of
the necessity of attending to his private concerns. He had, in truth, a
great reluctance to appear again upon any public theatre. His health was
far from being firm; he felt the need and coveted the blessing of
retirement for the remainder of his days; and although some
modifications of the Society whose first President he had been, were
then allaying the jealousies it had excited, he withdrew from this, the
last relation which had kept him in a conspicuous public position.
But Washington at Mount Vernon, cultivating his estate, and rarely
leaving his own farms, was as conspicuous to the country as if he were
still placed in the most active and important public stations. All eyes
were turned to him in this emergency; all thoughts were employed in
considering whether his countenance and his influence would be given to
this attempt to create a national government for the States whose
liberties he had won. And his friends represented to him, that the
posture of public affairs would prevent any criticism on the situation
in which the contemporary meeting of the Cincinnati would place him, if
he were to accept a seat in the Convention. Still, when the official
notice of his appointment came, in December, he formally declined, but
was requested by the Governor of the State to reserve his decision.[394]
At this moment, the insurrection in Massachusetts broke upon him like a
thunderbolt. "What, gracious God!" he exclaimed, "is man, that there
should be such inconsistency and perfidiousness in his conduct! It was
but the other day that we were shedding our blood to obtain the
constitutions under which we now live,--constitutions of our own choice
and making,--and now we are unsheathing the sword to overturn them! The
thing is so unaccountable, that I hardly know how to realize it, or to
persuade myself that I am not under the illusion of a dream."[395]
It was clear that, in case of civil discord and open confusion extending
through any considerable part of the country, he would be obliged to
take part on one side or the other, or to withdraw from the continent;
and he, as well as other reflecting men, were not without fears that the
disturbances in the Eastern States might extend throughout the Union. He
consulted with his friends in distant parts of the country, and
requested their advice, but still, as late as February, hesitated
whether he should attend the Convention. In that month, he heard of the
suppression of the rebellion in Massachusetts; but the developments
which it had made of the state of society, the necessity which it had
revealed for more coercive power in the institutions of the country, and
the fear which it had excited that this want might lead men's minds to
entertain the idea of monarchical government, finally decided him to
accept the appointment. The possibility that his absence at such a
juncture might be construed into what he called "a dereliction of
republicanism," seems to have influenced his decision more than all
other reasons. Congress, it is true, had now sanctioned the Convention,
and this had removed one obstacle which had weighed with him and with
others. He entertained great doubts as to the result of the experiment,
but was entirely satisfied that it ought to be tried.[396]
He left Mount Vernon in the latter part of April. Public honors attended
him everywhere on his route. At Chester, fifteen miles from the city of
Philadelphia, he was met by the Speaker of the Assembly of Pennsylvania
and several officers and gentlemen of distinction, who accompanied him
to Gray's Ferry, where a military escort was in waiting to receive him
and conduct him into the city. On his arrival, he immediately paid a
visit to Dr. Franklin, at that time President of the State of
Pennsylvania.[397]
On the assembling of the Convention, Robert Morris, by the instruction
and in behalf of the deputation of Pennsylvania, proposed that General
Washington should be elected President. John Rutledge of South Carolina
seconded this suggestion, observing that the presence of General
Washington forbade any observations on the occasion which might
otherwise be proper.[398] His opinions, at the time when he took the
chair of the Convention, as to what was proper to be done, and what was
practicable, can only be gathered from his correspondence. He had formed
some general views of the principles on which a national government
should be framed, but he had not proceeded at all to the consideration
of details. The first and most important object he held to be, to
establish such a constitution as would secure and perpetuate the
republican form of government, by satisfying the wants of the country
and the time, and thus checking all tendency to monarchical ideas. He
had come to the Convention, as we have seen, in order that the great
experiment of self-government, on which this country had entered at the
Revolution, might have a further trial beyond the hazards of the hour.
He knew--he had had occasion to know--that the thought of a monarchy, as
being necessary to the safety of the country, had been to some extent
entertained. There had been those in a former day, in the darkest period
of the war, who had proposed to him to assume a crown,--men who could
possibly have bestowed it upon him, or have assisted him to acquire
it,--but who met a rebuke which the nature of their proposition and his
character should have taught them to expect. There were those in that
day who sincerely despaired of republican liberty, and who had allowed
themselves to think that some of the royal families of Europe might
possibly furnish a sovereign fitted to govern and control the turbulent
elements of our political condition. Washington understood the genius
and character of the people of this country so well, that he held it to
be impossible ever to establish that form of government over them
without the deepest social convulsions. It was the form of the
government against which they had waged a seven years' war; and it was
certain that, apart from all questions of theoretical fitness or value,
nothing but the most frightful civil disorders, menacing the very
existence of society itself, could ever bring them again under its sway.
He was also satisfied, that, whatever particular system was to be
adopted, it must be one that would create a national sovereignty and
give it the means of coercion. What the nature of that coercion ought to
be, he had not considered; but that obedience to the ordinances of a
general government could not be expected, unless it was clothed with the
power of enforcing them, all his experience during the war, and all his
observation since, had fully satisfied him. He was convinced, also, that
powers of a more extensive nature, and which would comprehend other
objects, ought to be given to the general government; that Congress
should be so placed as to enable and compel them to exert their
constitutional authority with a firm and steady hand, instead of
referring it back to the States. He proposed to adopt no temporizing
expedients, but to have the defects of the Confederation thoroughly
examined and displayed, and a radical cure provided, whether it were
accepted or not. A course of this kind, he said, would stamp wisdom and
dignity on their proceedings, and hold up a light which sooner or later
would have its influence.[399]
Persuaded that the primary cause of all the public disorders lay in the
different State governments, and in the tenacity with which they adhered
to their State powers, he saw that incompatibility in the laws of
different States and disrespect to the authority of the Union must
continue to render the situation of the country weak, inefficient, and
disgraceful. The principle with which he entered the Convention, and on
which he acted throughout to the end, was, "with a due consideration of
circumstances and habits, to form such a government as will bear the
scrutinizing eye of criticism, and trust it to the good sense and
patriotism of the people to carry it into effect."[400]
The character of Washington as a statesman has, perhaps, been somewhat
undervalued, from two causes; one of them being his military greatness,
and the other, the extraordinary balance of his mind, which presented no
brilliant and few salient qualities. Undoubtedly, as a statesman he was
not constructive, like Hamilton, nor did he possess the same abundant
and ever-ready resources. He was eminently cautious, but he was also
eminently sagacious. He had had a wide field of observation during the
war, the theatre of which, commencing in New England, had extended
through the Middle and into the Southern States. He had, of course, been
brought in contact with the men and the institutions of all the States,
and had been concerned in their conflicts with the federal authority, to
a greater extent than any other public man of the time. This experience
had not prepared him--as the character of his mind had not prepared
him--to suggest plans or frame institutions fitted to remedy the evils
he had observed, and to apply the principles which he had discovered.
But it had revealed to him the dangers and difficulties of our
situation, and had made him a national statesman, as incapable of
confining his politics to the narrow scale of local interests and
attachments, as he had been of confining his exertions to the object of
achieving the liberties of a single state.
He would have been fitly placed in the chair of any deliberative
assembly into which he might have been called at any period of his life;
but it was preëminently suitable that he should occupy that of the
Convention for forming the Constitution. He had no talent for debate,
and upon the floor of this body he would have exerted less influence,
and have been far less the central object towards which the opinions and
views of the members were directed, than he was in the high and becoming
position to which he was now called.
FOOTNOTES:
[389] Madison's Debates in the Federal Convention. Elliot, V. 244.
[390] Washington's Writings, IX. 166.
[391] Washington's Writings, IX. 121.
[392] Washington's Writings, IX. 167.
[393] Washington's Writings, IX. 212.
[394] Washington's Writings, IX. 219.
[395] Washington's Writings, IX. 221.
[396] Washington's Writings, IX. 236.
[397] Sparks's Life of Washington, p. 435.
[398] Madison's Debates, Elliot, V. 123.
[399] Washington's Writings, IX. 250.
[400] Washington's Writings, IX. 258.
CHAPTER VIII.
HAMILTON.
Next to the august name of the President should be mentioned that great
man who, as a statesman, towered above all his compeers, even in that
assembly of great men,--Alexander Hamilton.
This eminent person is probably less well known to the nation at the
present day, than most of the leading statesmen of the Revolution. There
are causes for this in his history. He never attained to that high
office which has conferred celebrity on inferior men. The political
party of which he was one of the founders and one of the chief leaders
became unpopular with the great body of his countrymen before it was
extinct. His death, too, at the early age of forty-seven, while it did
not leave an unfinished character, left an unfinished career, for the
contemplation of posterity. In this respect, his fate was unlike that of
nearly all his most distinguished contemporaries. Washington, Adams,
Jefferson, Madison, Jay, and in fact almost all the prominent statesmen
of the Revolution, died in old age or in advanced life, and after the
circle of their public honors and usefulness had been completed.
Hamilton was cut off at a period of life when he may be said to have had
above a third of its best activity yet before him: and this is doubtless
one cause why so little is popularly known, by the present generation,
of him who was by far the greatest statesman of the Revolutionary age.
It is known, indeed, traditionally, what a thrill of horror--what a
sharp, terrible pang--ran through the nation, proving the comprehension
by the entire people of what was lost, when Aaron Burr took from his
country and the world that important life. In the most distant
extremities of the Union, men felt that one of the first intellects of
the age had been extinguished. From the utmost activity and public
consideration, in the fulness of his strength and usefulness, the bullet
of a duellist had taken the first statesman in America;--a man who,
while he had not been without errors, and while his life had not been
without mistakes, had served his country, from his boyhood to that hour
of her bitter bereavement, with an elevation of purpose and a force of
intellect never exceeded in her history, and which had caused Washington
to lean upon him and to trust him, as he trusted and leaned upon no
other man, from first to last. The death of such a man, under such
circumstances, cast a deep gloom over the face of society; and Hamilton
was mourned by his contemporaries with a sorrow founded on a just
appreciation of his greatness, and of what they owed to his intellect
and character. But by the generations that have succeeded he has been
less intimately known than many of his compatriots, who lived longer,
and reached stations which he never occupied.
He was born in the island of St. Christopher's, in the year 1757; his
mother being a native of that island, and his father being a Scotchman.
At the age of fifteen, after having been for three years in the
counting-house of a merchant at Santa Cruz, he was sent to New York to
complete his education, and was entered as a private student in King's
(now Columbia) College. At the age of seventeen, his political life was
already begun; for at that age, and while still at college, he wrote and
published a series of essays on the Rights of the Colonies, which
attracted the attention of the whole country. These essays appeared in
1774, in answer to certain pamphlets on the Tory side of the
controversy; and in them Hamilton reviewed and vindicated the whole of
the proceedings of the first Continental Congress. There are displayed
in these papers a power of reasoning and sarcasm, a knowledge of the
principles of government and of the English Constitution, and a grasp of
the merits of the whole controversy, that would have done honor to any
man at any age, and in a youth of seventeen are wonderful. To say that
they evince precocity of intellect, gives no idea of their main
characteristics. They show great maturity;--a more remarkable maturity
than has ever been exhibited by any other person, at so early an age, in
the same department of thought. They produced, too, a great effect.
Their influence in bringing the public mind to the point of resistance
to the mother country, was important and extensive.
Before he was nineteen years old, Hamilton entered the army as a captain
of artillery; and when only twenty, in 1777, he was selected by
Washington to be one of his aides-de-camp, with the rank of
lieutenant-colonel. In this capacity he served until 1782, when he was
elected a member of Congress from the State of New York, and took his
seat. In 1786, he was chosen a member of the legislature of New York. In
1787, he was appointed as a delegate to the Convention which framed the
Constitution. In the following year, when only thirty years old, he
published, with Madison and Jay, the celebrated essays called "The
Federalist," in favor of the form of government proposed by the
Convention. In 1788, he became a member of the State Convention of New
York, called to ratify the Constitution, and it was chiefly through his
influence that it was adopted in that State. In 1789, he took office in
Washington's administration, as Secretary of the Treasury. In 1795, he
retired to the practice of the law in the city of New York. In 1798, at
Washington's absolute demand, he was appointed second in command of the
provisional army, raised under the elder Adams's administration, to
repel an apprehended invasion of the French. On the death of Washington,
in 1799, he succeeded to the chief command. When the army was disbanded,
he again returned to the bar, and practised with great reputation until
the year 1804, when his life was terminated in a duel with Colonel
Burr, concerning which the sole blame that has ever been imputed to
Hamilton is, that he felt constrained to accept the challenge.
His great characteristic was his profound insight into the principles of
government. The sagacity with which he comprehended all systems, and the
thorough knowledge he possessed of the working of all the freer
institutions of ancient and modern times, united with a singular
capacity to make the experience of the past bear on the actual state of
society, rendered him one of the most useful statesmen that America has
known. Whatever in the science of government had already been
ascertained; whatever the civil condition of mankind in any age had made
practicable or proved abortive; whatever experience had demonstrated;
whatever the passions, the interests, or the wants of men had made
inevitable,--he seemed to know intuitively. But he was no theorist. His
powers were all eminently practical. He detected the vice of a theory
instantly, and shattered it with a single blow.
His knowledge, too, of the existing state of his own and of other
countries was not less remarkable than his knowledge of the past. He
understood America as thoroughly as the wisest of his contemporaries,
and he comprehended Europe more completely than any other man of that
age upon this continent.[401]
To these characteristics he added a clear logical power in statement, a
vigorous reasoning, a perfect frankness and moral courage, and a lofty
disdain of all the arts of a demagogue. His eloquence was distinguished
for correctness of language and distinctness of utterance, as well as
for grace and dignity.
In theory, he leaned decidedly to the constitution of England, as the
best form of civil polity for the attainment of the great objects of
government. But he was not, on that account, less a lover of liberty
than those who favored more popular and democratic institutions. His
writings will be searched in vain for any disregard of the natural
rights of mankind, or any insensibility to the blessings of freedom. It
was because he believed that those blessings can be best secured by
governments in which a change of rulers is not of frequent occurrence,
that he had so high an estimate of the English Constitution. At the
period of the Convention, he held that the chief want of this country
was a government into which the element of a permanent tenure of office
could be largely infused; and he read in the Convention--as an
illustration of his views, but without pressing it--a plan by which the
Executive and the Senate could hold their offices during good behavior.
But the idea, which has sometimes been promulgated, that he desired the
establishment of a monarchical government in this country, is without
foundation. At no period of his life did he regard that experiment as
either practicable or desirable.
Hamilton's relation to the Constitution is peculiar. He had less direct
agency in framing its chief provisions than many of the other principal
persons who sat in the Convention; and some of its provisions were not
wholly acceptable to him when framed. But the history, which has been
detailed in the previous chapters of this work, of the progress of
federal ideas, and of the efforts to introduce and establish principles
tending to consolidate the Union, has been largely occupied with the
recital of his opinions, exertions, and prevalent influence. Beginning
with the year 1780, when he was only three-and-twenty years of age, and
when he sketched the outline of a national government strongly
resembling the one which the Constitution long afterwards established;
passing through the term of his service in Congress, when his admirable
expositions of the revenue system, the commercial power, and the ratio
of contribution, may justly be said to have saved the Union from
dissolution; and coming down to the time when he did so much to bring
about, first, the meeting at Annapolis, and then the general and final
Convention of all the States;--the whole period is marked by his wisdom
and filled with his power. He did more than any other public man of the
time to lessen the force of State attachments, to create a national
feeling, and to lead the public mind to a comprehension of the necessity
for an efficient national sovereignty.
Indeed, he was the first to perceive and to develop the idea of a real
union of the people of the United States. To him, more than to any one
else, is to be attributed the conviction that the people of the
different States were competent to establish a general government by
their own direct action; and that this mode of proceeding ought to be
considered within the contemplation of the State legislatures, when they
appointed delegates to a convention for the revision and amendment of
the existing system.[402]
The age in which he lived, and the very extraordinary early maturity of
his character, naturally remind us of that remarkable person who was two
years his junior, and who became prime-minister of England at the age of
twenty-four. The younger Pitt entered public life with almost every
possible advantage. Inheriting "a great and celebrated name,"[403]
educated expressly for the career of a statesman, and introduced into
the House of Commons at a moment when power was just ready to drop into
the hands of any man capable of wielding it, he had only to prove
himself a brilliant and powerful debater, in order to become the ruler
of an empire, whose constitution had been settled for ages, and was
necessarily administered by the successful leaders of regular parties in
its legislative body. That he was a most eminent parliamentary orator, a
consummate tactician and leader of party, a minister of singular energy,
and a statesman of a very high order of mind and character, at an age
when most men are scarcely beginning to give proofs of what they may
become,--all this History has deliberately and finally recorded. What
place it may assign to him among the statesmen by whose lives and
actions England and the world have been materially and permanently
benefited is not yet settled, and it is not to the present purpose to
consider.
The theatre in which Hamilton appeared, lived, and acted, was one of a
character so totally different, that the comparison necessarily ends
with the contrast which it immediately suggests. Like Pitt, indeed, he
seems to have been born a statesman, and to have had no such youth as
ordinarily precedes the manhood of the mind. But, in the American
colonies, no political system of things existed that was fitted to train
him for a career of usefulness and honor; and yet, when the years of his
boyhood were hardly ended, he sprang forth into the troubled affairs of
the time, with the full stature of a matured and well-furnished
statesman. He, in truth, showed himself to be already the man that was
wanted. Every thing was in an unsettled and anxious state;--a state of
change and transition. There was no regular, efficient government. It
was all but a state of civil war, and the more clear-sighted saw that
this great disaster was coming. He was compelled, therefore, to mark out
for himself, step by step, beginning in 1774, a system of political
principles which should serve, not to administer existing institutions
with wisdom and beneficence, but to create institutions able to unite a
people divided into thirteen independent sovereignties; to give them the
attitude and capacity of an independent nation; and then to carry them
on, with constantly increasing prosperity and power, to their just place
in the affairs of the world. It was a great work, but Mr. Hamilton was
equal to it. He was by nature, by careful study, and by still more
careful, anxious, and earnest thought, eminently fitted to detect and
develop those resources of power and progress, which, in the dark
condition of society that attends and follows an exhausting period of
revolution, lie hidden, like generous seeds, until some strong hand
disencumbers them of the soil with which they had been oppressed, and
gives them opportunity to germinate and bear golden fruit. At the age of
three-and-twenty he had already formed well-defined, profound, and
comprehensive opinions on the situation and wants of these States. He
had clearly discerned the practicability of forming a confederated
government, and adapting it to their peculiar condition, resources, and
exigencies. He had wrought out for himself a political system, far in
advance of the conceptions of his contemporaries, and one which, in the
hands of those who most opposed him in life, became, when he was laid
in a premature grave, the basis on which this government was
consolidated; on which, to the present day, it has been administered;
and on which alone it can safely rest in that future, which seems so to
stretch out its unending glories before us.
Mr. Hamilton, therefore, I conceive, proved himself early to be a
statesman of greater talent and power than the celebrated English
minister whose youthful success was in the eyes of the world so much
more brilliant, and whose early death was no less disheartening; for
none can doubt, that to build up a free and firm state out of a
condition of political chaos, and to give it a government capable of
developing the resources of its soil and people, and of insuring to it
prosperity, power, and permanence, is a greater work than to administer
with energy and success--even in periods of severe trial--the
constitution of an empire whose principles and modes of action have been
settled for centuries.
Hamilton was one of those statesmen who trust to the efficacy of the
press for the advancement and inculcation of correct principles of
public policy, and who desire to accomplish important results mainly
through the action of an enlightened public opinion. That he had faith
in the intelligence and honesty of his countrymen, is proved by the
numerous writings which he constantly addressed to their reason and good
sense, in the shape of essays or letters, from the beginning to the end
of his career, upon subjects on which it was important that they should
act with wisdom and principle.
His own opinions, although held with great firmness, were also held in
subordination to what was practicable. It was the rare felicity of his
temperament, to be able to accept a less good than his principles might
have led him to insist upon, and to labor for it, when nothing better
could be obtained, with as much patriotic energy and zeal as if it had
been the best result of his own views. The Constitution itself remains,
in this particular, a monument of the disinterestedness of his
character. He thought it had great defects. But he accepted it, as the
best government that the wisdom of the Convention could frame, and the
best that the nation would adopt. In this spirit, as soon as it was
promulgated for the acceptance of the country, he came forward and
placed himself in the foremost rank of its advocates, making himself,
for all future time, one of the chief of its authoritative expounders.
He was very ably assisted in the Federalist by Madison and Jay; but it
was from him that the Federalist derived the weight and the power which
commanded the careful attention of the country, and carried conviction
to the great body of intelligent men in all parts of the Union. The
extraordinary forecast with which its luminous discussions anticipated
the operation of the new institutions, and its profound elucidation of
their principles, gave birth to American constitutional law, which was
thus placed at once above the field of arbitrary constructions and in
the domain of legal truth. They made it a science; and so long as the
Constitution shall exist, they will continue to be resorted to as the
most important source of contemporaneous interpretation which the annals
of the country afford.[404]
In the two paramount characters of statesman and jurist, in the
comprehensive nature of his patriotism, in his freedom from sectional
prejudices, in his services to the Union, and in the kind and magnitude
of his intellect, posterity will recognize a resemblance to him whom
America still mourns with the freshness of a recent grief, and who has
been to the Constitution, in the age that has succeeded, what Hamilton
was in the age that witnessed its formation and establishment. Without
the one of these illustrious men, the Constitution probably would never
have existed; without the other, it might have become a mere record of
past institutions, whose history had been glorious until faction and
civil discord had turned it into a record of mournful recollections.
The following sentences, written by Hamilton soon after the adjournment
of the Convention, contain a clew to all his conduct in support of the
plan of government which that body recommended:--"It may be in me a
defect of political fortitude, but I acknowledge that I cannot feel an
equal tranquillity with those who affect to treat the dangers of a
longer continuance in our present situation as imaginary. A nation
without a national government is an awful spectacle. The establishment
of a constitution, in a time of profound peace, by the voluntary consent
of a whole people, is a prodigy, to the completion of which I look
forward with trembling anxiety."
FOOTNOTES:
[401] While these sheets are passing through the press, Mr. Ticknor
writes to me as follows: "One day in January, 1819, talking with Prince
Talleyrand, in Paris, about his visit to America, he expressed the
highest admiration of Mr. Hamilton, saying, among other things, that he
had known nearly all the marked men of his time, but that he had never
known one, on the whole, equal to him. I was much surprised and
gratified with the remark; but still, feeling that, as an American, I
was in some sort a party concerned by patriotism in the compliment, I
answered with a little reserve, that the great military commanders and
the great statesmen of Europe had dealt with larger masses and wider
interests than he had. 'Mais, Monsieur,' the Prince instantly replied,
'Hamilton avoit _deviné_ l'Europe.'"
[402] See his first speech in the Convention, as reported by Mr.
Madison.
[403] Burke, speaking of Lord Chatham.
[404] The current editions of the Federalist are taken from an edition
published at Washington in 1818, by Jacob Gideon, in which the numbers
written by Mr. Madison purport to have been corrected by himself. There
had been three editions previous to this. The first edition was
published in 1788, in two small volumes, by J. & A. McLean, 41 Hanover
Square, New York, under the following title: "The Federalist: a
Collection of Essays written in Favor of the New Constitution, as agreed
upon by the Federal Convention, September 17, 1787." The first volume
was issued before the last of the essays were written, and the second
followed it, as soon as the series was completed. The authentic text of
the work is to be found in this edition; two of the authors were in the
city of New York at the time it was printed, and probably superintended
it. It was reissued from the same type, in 1789, by John Tiebout, 358
Pearl Street, New York. A second edition was published in 1802, at New
York, in two volumes, containing also "Pacificus on the Proclamation of
Neutrality, and the Constitution, with its Amendments." A third edition
was published in 1810, by Williams & Whiting, New York. I have seen
copies of the first and second editions only, in the library of Peter
Force, Esq., of Washington, editor of the "American Archives." There are
some discrepancies between the text of the first edition and that of
1818, from which the current editions are taken. By whom or on what
authority the alterations were made, I have not been able to ascertain,
nor have I learned when, or why, or how far Mr. Madison may have
corrected or altered the papers which he wrote. Such of the changes as I
have examined do not materially affect the sense; but it is very
desirable that the true text of the Federalist should be reproduced.
That text exists in the first edition, which was issued while the
Constitution was before the people of the United States for their
ratification; and as the Federalist was an argument addressed to the
people in favor of the adoption of the Constitution, the exact text of
that argument, as it was read and acted upon, ought to be restored,
without regard to the reasons which may have led any of the writers, or
any one else, to alter it. I know of no evidence that Colonel Hamilton
ever made or sanctioned the alteration of a word. After the text of the
Constitution itself, there is scarcely any thing the preservation of
which is more important than the text of the Federalist as it was first
published.
CHAPTER IX.
MADISON.
From Hamilton we naturally turn to his associate in the
Federalist,--James Madison, afterwards fourth President of the United
States,--whose faithful and laborious record has preserved to us the
debates of the Convention.
* * * * *
Mr. Madison was thirty-six years old when he entered that assembly. His
previous life had fitted him to play a conspicuous and important part in
its proceedings. He was born in 1751, of a good family, in Orange
County, Virginia, and was educated at Princeton College in New Jersey,
where he took the degree of Bachelor of Arts in 1772. He returned to
Virginia in the spring of 1773, and commenced the usual studies
preparatory to an admission to the bar; but the disputes between the
Colonies and the mother country soon drew him into public life. In 1776,
he became a member of the State Convention which formed the first
Constitution of Virginia. He was afterwards a member of the legislature
and of the Council of the State, until he was appointed one of its
delegates in Congress, where he took his seat in March, 1780.[405]
From this time to the assembling of the Federal Convention in 1787,
his services to the Union were of the most important character. He
entered Congress without a national reputation, but with national
views. Indeed, it may be said of him, that he came from his native
Commonwealth,--"mother of great men,"--grown to the full proportions
of a continental statesman. At the moment when he appeared upon the
larger theatre of the national interests, the Articles of
Confederation had not been finally ratified by all the States.
Maryland had insisted, as a necessary condition of her accession to
the new Confederacy, that the great States should surrender to the
Union their immense claims to the unoccupied territories of the West;
Virginia had remonstrated against this demand; and the whole scheme of
the Confederation had thus been long encountered by an apparently
insurmountable obstacle.[406] The generous example of New York, whose
Western claims were ceded to the United States in the month preceding
Mr. Madison's entry into Congress, had furnished to the advocates of
the Union the means for a powerful appeal to both sides of this
critical and delicate controversy; but it required great tact,
discretion, and address to make that appeal effectual, by inducing
Maryland to trust to the influence of this example upon Virginia, and
by inducing Virginia to make a cession that would be satisfactory to
Maryland. In this high effort of statesmanship--a domestic diplomacy
full of difficulties--Mr. Madison took part. He did not prepare the
very skilful report which, while it aimed to produce cessions of their
territorial claims by the larger States, appealed to Maryland to
anticipate the result;[407] but the vast concession by which Virginia
yielded the Northwestern Territory to the Union was afterwards brought
about mainly by his exertions.
In 1782, he united with Hamilton in the celebrated report prepared by
the latter upon the refusal of the State of Rhode Island to comply with
the recommendations of Congress for a duty on imports.[408]
In 1783, he was named first upon a committee with Ellsworth and
Hamilton, to prepare an Address to the States, urging the adoption of
the revenue system which has been described in a previous chapter, and
the Address was written by him.[409] The great ability and high tone of
this paper gave it a striking effect. The object of this plan of revenue
was, as we have seen, to fund the national debts, and to make a
sufficient provision for their discharge. I have already assigned to it
the merit of having preserved the Union from the premature decay that
had begun to destroy its vitality;[410] and it may here be added, that
the statesman whose pen could produce the comprehensive and powerful
appeal by which it was pressed upon the States, was certain to become
one of the chief founders of the Constitution of which the plan itself
was the forerunner. It settled the fact, that a national unity in
dealing with the debts of the Revolution was "necessary to render its
fruits a full reward for the blood, the toils, the cares, and the
calamities which had purchased them."
Such were Mr. Madison's most important services in the Congress of the
Confederation; but they are of course not the whole. A member so able
and of such broad and national views must have had a large agency in
every important transaction; and accordingly the Journals, during the
whole period of his service, bear ample testimony to his activity, his
influence, and his zeal.
At the close of the war, he retired to Virginia, and during the three
following years was a member of the legislature, still occupied,
however, with the interests of the Union. His attention was specially
directed to the subject of enlarging the powers of Congress over the
foreign trade of the country. It is a striking fact, and a proof of the
comprehensive character of Mr. Madison's statesmanship, that Virginia, a
State not largely commercial, should have taken so prominent a part in
the efforts to give the control of commerce to the general
government;--an object which has justly been regarded as the
corner-stone of the Constitution. It arose partly from the accident of
her geographical position, which made it necessary for her to aim at
something like uniformity of regulation with the other States which
bordered upon her contiguous waters; but it is also to be attributed to
the enlightened liberality and forecast of her great men, who saw in the
immediate necessities of their own State the occasion for a measure of
general advantage to the country.
Mr. Madison's first effort was, to procure a declaration by the
legislature of Virginia of the necessity for a uniform regulation of the
commerce of the States by the federal authority. For this purpose, he
introduced into the legislature a series of propositions, intended to
instruct the delegates of the State in Congress to propose a
recommendation to the States to confer upon Congress power to regulate
their trade and to collect a revenue from such regulation. This measure,
as we have seen, encountered the opposition of those who preferred a
temporary to a perpetual and irrevocable grant of such power; and the
propositions were so much changed in the Committee of the Whole, that
they were no longer acceptable to their original friends. The steps
which finally led the legislature of Virginia to recommend a general
convention of all the States have been detailed in a previous chapter of
this work; but it is due to Mr. Madison's connection with this movement,
that they should here be recapitulated with reference to his personal
agency in the various transactions.
A conflict of jurisdiction between the two States of Virginia and
Maryland over the waters which separated them had, in the spring of
1785, led to the appointment of commissioners on the part of each State,
who met at Alexandria in March. These commissioners, of whom Mr. Madison
was one, made a visit to General Washington at Mount Vernon, and it was
there proposed that the two States, whose conflicting regulations, ever
since the peace, had produced great inconvenience to their merchants,
and had been a constant source of irritation, should be recommended by
the commissioners to make a compact for the regulation of their impost
and foreign trade. Mr. Madison has left no written claim, that I am
aware of, to the authorship of this suggestion, but there exists
evidence of his having claimed it in conversation.[411] The
recommendation was made by the commissioners, and their report was
adopted by both States;--by Virginia unconditionally, and by Maryland
with the qualification that the States of Delaware and Pennsylvania
should be invited to unite in the plan.
After the commercial propositions introduced by Mr. Madison had lain on
the table for some time as a report from the Committee of the Whole, the
report of the Alexandria commissioners was received and ratified by the
legislature of Virginia. Although the friends of those propositions were
gradually increasing, Mr. Madison had no expectation that a majority
could be obtained in favor of a grant of commercial powers to Congress
for a longer term than twenty-five years. The idea of a general
convention of delegates from all the States, which had been for some
time familiar to Mr. Madison's mind, then suggested itself to him, and
he prepared and caused to be introduced the resolution which led to the
meeting that afterwards took place at Annapolis, for the purpose of
digesting and reporting the requisite augmentation of the powers of
Congress over trade.[412] His resolution, he says, being, on the last
day of the session, "the alternative of adjourning without any effort
for the crisis in the affairs of the Union, obtained a general vote;
less, however, with some of its friends, from a confidence in the
success of the experiment, than from a hope that it might prove a step
to a more comprehensive and adequate provision for the wants of the
Confederacy."[413]
Mr. Madison was appointed one of the commissioners of Virginia to the
meeting at Annapolis. There he met Hamilton, who came meditating nothing
less than the general revision of the whole system of the Federal Union,
and the formation of a new government. Mr. Madison, although less
confident than the great statesman of New York as to the measures that
ought to be taken, had yet for several years been equally convinced that
the perpetuity and efficacy of the existing system could not be confided
in. He therefore concurred readily in the report recommending a general
convention of all the States; and when that report was received in the
legislature of Virginia, he became the author of the celebrated act
which passed that body on the 4th of December, 1786, and under which the
first appointment of delegates to the Convention was made. It was also
chiefly through his exertions, combined with the influence of Governor
Randolph, that General Washington's name was placed at the head of the
delegation, and that he was induced to accept the appointment. Mr.
Madison himself was the fourth member of the delegation.
In the Convention, his labors must have been far more arduous than those
of any other member of the body. He took a leading part in the debates,
speaking upon every important question; and in addition to all the
usual duties devolving upon a person of so much ability and influence,
he preserved a full and careful record of the discussions with his own
hand. Impressed, as he says, with the magnitude of the trust confided to
the Convention, and foreseeing the interest that must attach to an
authentic exhibition of the objects, the opinions, and the reasonings
from which the new system of government was to receive its peculiar
structure and organization, he devoted the hours of the night succeeding
the session of each day to the preparation of the record with which his
name is imperishably associated. "Nor was I," he adds, "unaware of the
value of such a contribution to the fund of materials for the history of
a Constitution on which would be staked the happiness of a people, great
even in its infancy, and possibly the cause of liberty throughout the
world."[414]
As a statesman, he is to be ranked, by a long interval, after Hamilton;
but he was a man of eminent talent, always free from local prejudices,
and sincerely studious of the welfare of the whole country. His
perception of the principles essential to the continuance of the Union
and to the safety and prosperity of the States, was accurate and clear.
His studies had made him familiar with the examples of ancient and
modern liberty, and he had carefully reflected upon the nature of the
government necessary to be established. He was one of the few persons
who carried into the Convention a conviction that an amendment of the
Articles of Confederation would not answer the exigencies of the time.
He regarded an individual independence of the States as irreconcilable
with an aggregate sovereignty of the whole, but admitted that a
consolidation of the States into a simple republic was both
impracticable and inexpedient. He sought, therefore, for some middle
ground, which would at once support a due supremacy of the national
authority, and leave the local authorities in force for their
subordinate objects.
For this purpose, he conceived that a system of representation which
would operate without the intervention of the States was indispensable;
that the national government should be armed with a positive and
complete authority in all cases where a uniformity of measures was
necessary, as in matters of trade, and that it should have a negative
upon the legislative acts of the States, as the crown of England had
before the Revolution. He thought, also, that the national supremacy
should be extended to the judiciary, and foresaw the necessity for
national tribunals, in cases in which foreigners and citizens of
different States might be concerned, and also for the exercise of the
admiralty jurisdiction. He considered two branches of the legislature,
with distinct origins, as indispensable; recognized the necessity for a
national executive, and favored a council of revision of the laws, in
which should be included the great ministerial officers of the
government. He saw also, that, to give the new system its proper energy,
it would be necessary to have it ratified by the authority of the
people, and not merely by that of the legislatures.[415]
Such was the outline of the project which he had formed before the
assembling of the Convention. How far his views were modified by the
discussions in which he took part will be seen hereafter. As a speaker
in a deliberative assembly, the successive schools in which he had been
trained had given him a habit of self-possession which placed all his
resources at his command. "Never wandering from his subject," says Mr.
Jefferson, "into vain declamation, but pursuing it closely, in language
pure, classical, and copious, soothing always the feelings of his
adversaries by civilities and softness of expression, he rose to the
eminent station which he held in the great national Convention of 1787;
and in that of Virginia which followed, he sustained the new
Constitution in all its parts, bearing off the palm against the logic of
George Mason and the fervid declamation of Mr. Henry. With these
consummate powers were united a pure and spotless virtue, which no
calumny has ever attempted to sully."[416]
Mr. Madison's greatest service in the national Convention consisted in
the answers which he made to the objections of a want of power in that
assembly to frame and propose a new constitution, and his paper on this
subject in the Federalist is one of the ablest in the series.
As this work is confined to the period which terminated with the
adoption of the Constitution, it is not necessary to examine those
points on which the two principal writers of the Federalist became
separated from each other, when the administration of the government led
to the formation of the first parties known in our political history.
These topics it may become my duty to discuss hereafter, should I pursue
the constitutional history of the country through the administration of
Washington. At present, it may be recorded of both, that, upon almost
all the great questions that arose before the Constitution was finally
adopted, the single purpose of establishing a system as efficient as the
theory of a purely republican government would admit, was the object of
their efforts; and that, although they may have differed with regard to
the details and methods through which this object was to be reached, the
purpose at which they both aimed places them in the same rank at the
head of those founders of our government, towards whom the gratitude of
the succeeding generations of America must be for ever directed.[417]
FOOTNOTES:
[405] Article "Madison" in the Penny Encyclopædia, written for that work
by Professor George Tucker of the University of Virginia.
[406] Ante, pp. 131-141.
[407] It was drawn by James Duane of New York.
[408] Ante, pp. 174, 206-208.
[409] Ante, pp. 177-179.
[410] Ante, pp. 176, 186, 188.
[411] In preparing the note to page 342 (ante), I refrained from
attributing to General Washington the suggestion of the enlarged plan
recommended by the Alexandria commissioners, although it was concerted
at his house, because there is no evidence, beyond that fact, of his
having proposed this enlargement of the plan. Since that note was
printed, I have learned in a direct manner, that Mr. Madison had stated
to the Hon. Edward Coles, formerly his private secretary and afterwards
Governor of Illinois, that he (Mr. Madison) first suggested it. In
assigning, therefore, to the different individuals who took a prominent
part in the measures which led to the formation of the Constitution, the
various suggestions which had an important influence upon the course of
events,--a curious and interesting inquiry,--I consider that to Mr.
Madison belongs the credit of having originated that series of Virginia
measures which brought about the meeting of commissioners of all the
States at Annapolis, for the purpose of enlarging the powers of Congress
over commerce; while Hamilton is to be considered the author of the plan
in which the Convention at Annapolis was merged, for an entire revision
of the federal system and the formation of a new constitution.
[412] The resolve was introduced by Mr. Tyler, father of the
Ex-President, a person of much influence in the legislature, and who had
never been in Congress. Although prepared by Mr. Madison, it was not
offered by him, for the reason that a great jealousy was felt against
those who had been in the federal councils, and because he was known to
wish for an enlargement of the powers of Congress. See Madison's
Introduction to the Debates in the Convention, Elliot, V. 113.
[413] Ibid., p. 114.
[414] Introduction to the Debates, Elliot, V. 121.
[415] Letter to Edmund Randolph, dated New York, April 8, 1787.
[416] Jefferson's Autobiography. Works, I. 41, edition of 1853.
[417] The following extract from an autograph letter of Mr. Madison,
hitherto unpublished, which lies before me, written after the adoption
of the Constitution, shows very clearly that he concurred with Hamilton
in the opinion that the strongest government consistent with the
republican form was necessary in the situation of this country. The
letter is dated at Philadelphia, December 10, 1788, and is addressed to
Philip Mazzei, at Paris.
"Your book, as I prophesied, sells nowhere but in Virginia; a very few
copies only have been called for, either in New York or in this city.
The language in which it is written will account for it. In order to
attract notice, I translated the panegyric in the French Mercure, and
had it made part of the advertisement. I did not translate the comment
on the Federal Constitution, as you wished, because I could not spare
the time, as well as because I did not approve the tendency of it. Some
of your remarks prove that Horace's '_Coelum non animum mutant qui trans
mare currunt_' does not hold without exception. In Europe, the abuses of
power continually before your eyes have given a bias to your political
reflections, which you did not feel in equal degree when you left
America, and which you would feel less of, if you had remained in
America. Philosophers on the old continent, in their zeal against
tyranny would rush into anarchy; as the horrors of superstition drive
them into atheism. Here, perhaps, the inconveniences of relaxed
government have reconciled too many to the opposite extreme. If your
plan of a single legislature, as in Pennsylvania, &c., were adopted, I
sincerely believe that it would prove the most deadly blow ever given to
republicanism. Were I an enemy to that form, I would preach the very
doctrines which are preached by the enemies to the government proposed
for the United States. Many of our best citizens are disgusted with the
injustice, instability, and folly which characterize the American
administrations. The number has for some time been rapidly increasing.
Were the evils to be much longer protracted, the disgust would seize
citizens of every description.
"It is of infinite importance to the cause of liberty to ascertain the
degree of it which will consist with the purposes of society. An error
on one side may be as fatal as on the other. Hitherto, the error in the
United States has lain in the excess.
"All the States, except North Carolina and Rhode Island, have ratified
the proposed Constitution. Seven of them have appointed their Senators,
of whom those of Virginia, R. H. Lee and Colonel Grayson, alone are
among the opponents of the system. The appointments of Maryland, South
Carolina, and Georgia will pretty certainly be of the same stamp with
the majority. The House of Representatives is yet to be chosen,
everywhere except in Pennsylvania. From the partial returns received,
the election will wear a federal aspect unless the event in one or two
particular counties should contradict every calculation. If the eight
members from this State be on the side of the Constitution, it will in a
manner secure the majority in that branch of the Congress also. The
object of the anti-Federalists is, to bring about another general
convention, which would either agree on nothing, as would be agreeable
to some, and throw every thing into confusion, or expunge from the
Constitution parts which are held by its friends to be essential to it.
The latter party are willing to gratify their opponents with every
supplemental provision for general rights, but insist that this can be
better done in the mode provided for amendments.
"I remain, with great sincerity, your friend and servant,
"JAS. MADISON, JR."
CHAPTER X.
FRANKLIN.
The Convention was graced and honored by the venerable presence of Dr.
Franklin, then President of the State of Pennsylvania, and in his
eighty-second year. He had returned from Europe only two years before,
followed by the admiration and homage of the social, literary, and
scientific circles of France; laden with honors, which he wore with a
plain and shrewd simplicity; and in the full possession of that
predominating common-sense, which had given him, through a long life, a
widely extended reputation of a peculiar character. The oldest of the
public men of America, his political life had embraced a period of more
than half a century, extending back to a time when independence had not
entered into the dreams of the boldest among the inhabitants of the
English Colonies. For more than twenty years before the Revolution
commenced, he had held a high and responsible office under the crown,
the administration of which affected the intercourse and connection of
all the Colonies;[418] and more than twenty years before the first
Continental Congress was assembled, he had projected a plan of union for
the thirteen Provinces which then embraced the whole of the British
dominions in North America.[419] Nearly as long, also, before the
Declaration of Independence, he had become the resident agent in England
of several of the Colonies, in which post he continued, with a short
interval, through all the controversies that preceded the Revolution,
and until reconciliation with the mother country had become
impossible.[420]
Returning in 1775, he was immediately appointed by the people of
Pennsylvania one of their delegates in the second Continental Congress.
In the following year, he was sent as commissioner to France, where he
remained until he was recalled, and was succeeded by Mr. Jefferson, in
1785.
With the fame of his two residences abroad--the one before and the other
after the country had severed its connection with England--the whole
land was filled. The first of them, commencing with an employment for
settling the miserable disputes between the people and the Proprietaries
of Pennsylvania, was extended to an agency for the three other Colonies
of Georgia, New Jersey, and Massachusetts, which finally led him to take
part in the affairs of all British America, and made him virtually the
representative of American interests. His brief service in Congress,
during which he signed the Declaration of Independence, was followed by
his appointment as Commissioner at the Court of Versailles, which he
made the most important sphere that has ever been filled by any American
in Europe, and in which that treaty of alliance with France was
negotiated which enabled the United States to become in fact an
independent nation.
His long career of public service; his eminence as a philosopher, a
philanthropist, and a thinker; the general reverence of the people for
his character; his peculiar power of illustrating and enforcing his
opinions by a method at once original, simple, and attractive,--made his
presence of the first importance in an assembly which was to embrace the
highest wisdom and virtue of America.
It is chiefly, however, by the countenance he gave to the effort to
frame a Constitution, that his services as a member of this body are to
be estimated. His mind was at all times ingenious, rather than large and
constructive; and his great age, while it had scarcely at all impaired
his natural powers, had confirmed him in some opinions which must
certainly be regarded as mistaken. His desire, for example, to have the
legislature of the United States consist of a single body, for the sake
of simplicity, and his idea that the chief executive magistrate ought
to receive no salary for his official services, for the sake of purity,
were both singular and unsound.
But there were points upon which he displayed extraordinary wisdom,
penetration, and forecast. When an objection to a proportionate
representation in Congress was started, upon the ground that it would
enable the larger States to swallow up the smaller, he declared that, as
the great States could propose to themselves no advantage by absorbing
their inferior neighbors, he did not believe they would attempt it. His
recollection carried him back to the early part of the century, when the
union between England and Scotland was proposed, and when the Scotch
patriots were alarmed by the idea that they should be ruined by the
superiority of England, unless they had an equal number of members in
Parliament; and yet, notwithstanding the great inferiority in their
representation as established by the act of union, he declared, that,
down to that day, he did not recollect that any thing had been done in
the Parliament of Great Britain to the prejudice of Scotland.[421]
Although he spoke but seldom in the Convention, his influence was very
great, and it was always exerted to cool the ardor of debate, and to
check the tendency of such discussions to result in irreconcilable
differences. His great age, his venerable and benignant aspect, his wide
reputation, his acute and sagacious philosophy,--which was always the
embodiment of good sense,--would have given him a controlling weight in
a much more turbulent and a far less intelligent assembly. When--after
debates in which the powerful intellects around him had exhausted the
subject, and both sides remained firm in opinions diametrically
opposed--he rose and reminded them that they were sent to consult and
not to contend, and that declarations of a fixed opinion and a
determination never to change it neither enlightened nor convinced those
who listened to them, his authority was felt by men who could have
annihilated any mere logical argument that might have proceeded from him
in his best days.
Dr. Franklin was one of those who entertained serious objections to the
Constitution, but he sacrificed them before the Convention was
dissolved. Believing a general government to be necessary for the
American States; holding that every form of government might be made a
blessing to the people by a good administration; and foreseeing that the
Constitution would be well administered for a long course of years, and
could only end in despotism when the people should have become so
corrupted as to be incapable of any other than a despotic government, he
gladly embraced a system which he was astonished to find approaching so
near to perfection.
"The opinions I have had of its errors," said he, "I sacrifice to the
public good. Within these walls they were born, and here they shall
die. If every one of us, in returning to our constituents, were to
report the objections he has had to it, and endeavor to gain partisans
in support of them, we might prevent its being generally received, and
thereby lose all the salutary effects and great advantages, resulting
naturally in our favor, among foreign nations as well as among
ourselves, from our real or apparent unanimity. Much of the strength
and efficiency of any government in procuring and securing happiness
to the people depends on opinion,--on the general opinion of the
goodness of the government, as well as of the wisdom and integrity of
its governors. 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 in recommending this Constitution (approved by Congress
and confirmed by the conventions) wherever our influence may extend,
and turn our future thoughts and endeavors to the means of having it
well administered."[422]
And thus, with a cheerful confidence in the future, sustaining the hopes
of all about him, and hailing every omen that foretold the rising
glories of his country,[423] this wise old man passed out from the
assembly, when its anxious labors had been brought to a close with a
nearer approach to unanimity than had ever been expected. He lived,
borne down by infirmities,
"To draw his breath in pain"
for nearly three years after the Convention was dissolved; but it was to
see the Constitution established, to witness the growing strength of the
new government, and to contemplate the opening successes and the
beneficent promise of Washington's administration. Writing to the first
President in 1789, he said: "For my own personal ease, I should have
died two years ago; but though those years have been spent in
excruciating pain, I am pleased that I have lived them, since they have
brought me to see our present situation."[424]
FOOTNOTES:
[418] In 1753, he was appointed Deputy Postmaster-General for the
British Colonies, from which place he was dismissed in 1774, while in
England, on account of the part he had taken in American affairs.
[419] In 1754. See an account of this plan, ante, p. 8.
[420] He first went to England in 1757, as agent of the Pennsylvania
Assembly to settle their difficulties with the Proprietaries, where he
remained until 1762. In 1764, he was reappointed provincial agent in
England for Pennsylvania; in 1768, he received a similar appointment
from Georgia; in 1769, he was chosen agent for New Jersey; and in 1770,
he became agent for Massachusetts. His whole residence in England, from
1757 to 1775, embraced a period of sixteen years, two years having been
passed at home. He resided in France about nine years, from 1776 to
1785.
[421] He added, with his usual quiet humor, that "whoever looks over the
lists of public officers, civil and military, of that nation, will find,
I believe, that the North Britons enjoy their full proportion of
emolument." Madison, Elliot, V. 179.
[422] Madison, Elliot, V. 554.
[423] Mr. Madison has recorded the following anecdote at the end of the
Debates, as an incident worthy of being known to posterity. "Whilst the
last members were signing, Dr. 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, in their art, to distinguish a rising from a setting sun. 'I
have,' said he, 'often and often, in the course of the session, and the
vicissitude 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.'"
[424] Sparks's Life of Franklin, 528.
CHAPTER XI.
GOUVERNEUR MORRIS.
This brilliant, energetic, and patriotic statesman was born in the
Province of New York, at Morrisania,--the seat of his family for several
generations,--in the year 1752. He was educated for the bar; but in
1775, at the age of three-and-twenty, he was elected a member of the
Provincial Congress of New York, in which he became at once
distinguished. When the recommendation of the Continental Congress to
the Colonies, to organize new forms of government, was received, he took
a leading place in the debates on the formation of a new constitution
for the State; and when the subject of independence was brought forward,
in order that the delegates of New York in the Continental Congress
might be clothed with sufficient authority, he delivered a speech of
great power, of which fragments only are preserved, but which evidently
embraced the most comprehensive and statesmanlike views of the situation
and future prospects of this country. Speaking of the capacity of
America to sustain herself without a connection with Great Britain, he
said:--
"Thus, Sir, by means of that great gulf which rolls its waves between
Europe and America; by the situation of these Colonies, always adapted
to hinder or interrupt all communication between the two; by the
productions of our soil, which the Almighty has filled with every
necessary to make us a great maritime people; by the extent of our
coasts and those immense rivers, which serve at once to open a
communication with our interior country, and to teach us the arts of
navigation; by those vast fisheries, which, affording an inexhaustible
mine of wealth and a cradle of industry, breed hardy mariners, inured to
danger and fatigue; finally, by the unconquerable spirit of freemen,
deeply interested in the preservation of a government which secures to
them the blessings of liberty and exalts the dignity of mankind;--by all
these, I expect a full and lasting defence against any and every part of
the earth; while the great advantages to be derived from a friendly
intercourse with this country almost render the means of defence
unnecessary, from the great improbability of being attacked. So far,
peace seems to smile upon our future independence. But that this fair
goddess will equally crown our union with Great Britain, my fondest
hopes cannot lead me to suppose. Every war in which she is engaged must
necessarily involve us in its detestable consequences; whilst, weak and
unarmed, we have no shield of defence, unless such as she may please
(for her own sake) to afford, or else the pity of her enemies and the
insignificance of slaves beneath the attention of a generous foe."[425]
In 1778, Mr. Morris was chosen a delegate to the Continental Congress
from the State of New York. His reputation for talent, zeal, activity,
and singular capacity for business, had preceded him. On the very day
when he presented his credentials, he was placed upon a committee to
proceed to Valley Forge, to confer with General Washington on the
measures necessary for a reorganization of the army. He remained in
Congress for two years, discharging, with great ability and high
patriotism, the most important functions, and subjected all the while to
the most unjust popular suspicions of his fidelity to the cause of the
country. Few of all the prominent men of the Revolution sacrificed or
suffered more than Gouverneur Morris. The fact that all the other
members of his family adhered to the royalist side, and an ineffectual
effort which he once made to visit his mother, at his ancestral home,
then within the British lines, gave his enemies the means of inflicting
upon him a deep injury in the popular estimation. He was not re-elected
to Congress; but short as his career in that body was, it was filled
with services inferior to those of none of his associates.
Before he left Congress, in February, 1779, he made--as chairman of a
committee to whom certain communications from the French minister in the
United States were referred--a report which became the basis of the
peace that afterwards followed; and when the principles on which the
peace was to be negotiated had been settled, he drew the instructions to
the commissioners, and they were unanimously adopted without
change.[426]
On leaving Congress, Mr. Morris took up his residence in Philadelphia,
and resumed the practice of the law. His remarkable talent for business,
however, and his intimate knowledge of financial subjects, led to his
appointment as Assistant Financier with Robert Morris. In this capacity,
he suggested the idea of the decimal notation, which was afterwards made
the basis of the coinage of the United States.[427]
Having been appointed one of the delegates from the State of
Pennsylvania to the Convention for forming the Constitution of the
United States, Mr. Morris attended the whole session, with the exception
of a few days in June, and entered into its business with his accustomed
ardor. To remove impediments, obviate objections, and conciliate jarring
opinions, he exerted all his fine faculties, and employed his remarkable
eloquence. But he is chiefly to be remembered, in connection with the
Constitution, as the author of its text. To his pen belongs the merit of
that clear and finished style,--that _lucidus ordo_,--that admirable
perspicuity, which have so much diminished the labors and hazards of
interpretation for all future ages.[428]
The character of Gouverneur Morris was balanced by many admirable
qualities. His self-possession was so complete in all circumstances,
that he is said to have declared, that he never knew the sensation of
fear, inferiority, or embarrassment, in his intercourse with men.
Undoubtedly, his self-confidence amounted sometimes to boldness and
presumption; but we have it on no less an authority than Mr. Madison's,
that he added to it a candid surrender of his opinions, when the lights
of discussion satisfied him that they had been too hastily formed.[429]
He was a man of genius, fond of society and pleasure, but capable of
prodigious exertion and industry, and possessed of great powers of
eloquence.
He loved to indulge in speculations on the future condition of the
country, and often foresaw results which gave him patience under the
existing state of things. In 1784, writing to Mr. Jay, at a time when
the clashing commercial regulations of the States seemed about to put an
end to the Union, he said: "True it is, that the general government
wants energy, and equally true it is, that this want will eventually be
supplied. A national spirit is the natural result of national existence,
and although some of the present generation may feel colonial
oppositions of opinion, yet this generation will die away and give place
to a race of Americans."[430]
He was himself, at all times, an American, and never more so than during
the discussions of the Convention. Appealing to his colleagues to extend
their views beyond the narrow limits of place whence they derived their
political origin, he declared, with his characteristic energy and point,
that State attachments and State importance had been the bane of this
country. "We cannot annihilate," said he, "but we may perhaps take out
the teeth of the serpents."[431]
In truth, the circumstances of his life had prevented him from feeling
those strong local attachments which he considered the great impediments
to the national prosperity. Born in one State, he had then resided for
seven years in another, from whose inhabitants he had received at least
equal marks of confidence with those that had been bestowed upon him by
the people among whom he first entered public life.
In his political opinions, he probably went farther in opposition to
democratic tendencies than any other person in the Convention. He was in
favor of an executive during good behavior, of a Senate for life, and of
a freehold qualification for electors of representatives. In several
other respects, the Constitution, as actually framed, was distasteful to
him; but, like many of the other eminent men who doubted its theoretical
or practical wisdom, he determined at once to abide by the voice of the
majority. He saw that, as soon as the plan should go forth, all other
considerations ought to be laid aside, and the great question ought to
be, Shall there be a national government or not? He acknowledged that
the alternatives were, the adoption of the system proposed, or a general
anarchy;--and before this single and fearful issue all questions of
individual opinion or preference sank into insignificance.[432] It is a
proof both of his sincerity and of the estimate in which his abilities
were held, that, when this great issue was presented to the people, he
was invited by Hamilton to become one of the writers of the
Federalist.[433] It is not known why he did not embrace the opportunity
of connecting himself with that celebrated publication; but his
correspondence shows that it was from no want of interest in the result.
He took pains to give to Washington his decided testimony, from personal
observation, that the idea of his refusing the Presidency would, if it
prevailed, be fatal to the Constitution in many parts of the
country.[434]
Mr. Morris filled two important public stations, after the adoption of
the Constitution. He was the first Minister to France appointed by
General Washington, and filled that office from May, 1792, until August,
1794. In February, 1800, he was chosen by the legislature of New York to
supply a vacancy in the Senate of the United States, which he filled
until the 4th of March, 1803. He died at Morrisania on the 6th of
November, 1818. "Let us forget party," said he, "and think of our
country, which embraces all parties."[435]
FOOTNOTES:
[425] Sparks's Life of G. Morris, I. 103. The florid and declamatory
style of this speech belongs to the period and to the youth of the
speaker. The breadth of its views and its vigor of thought display the
characteristics which belonged to him through life. He had a prophetic
insight of the future resources of this country, and made many
remarkable predictions of its greatness. His biographer has claimed for
him the suggestion of the plan for uniting the waters of Lake Erie with
those of the Hudson, and upon very strong evidence.
[426] See the Report and the debates thereon, Secret Journals, II. 132
et seq.
[427] In January, 1782, the Financier made a report, which was
officially signed by him, but which Mr. Jefferson says was prepared by
his Assistant, Gouverneur Morris. It embraced an elaborate statement of
the denominations and comparative value of the foreign coins in
circulation in the different States, and proposed the adoption of a
money unit and a system of decimal notation for a new coinage. The unit
suggested was such a portion of pure silver as would be a common measure
of the penny of every State, without leaving a fraction. This common
divisor Mr. Morris found to be one 1440th of a dollar, or one 1600th of
the crown sterling. The value of a dollar was therefore to be expressed
by 1,440 units, and that of a crown by 1,600, each unit containing a
quarter of a grain of fine silver. Nothing, however, was done, until
1784, when Mr. Jefferson, being in Congress, took up the subject. He
approved of Mr. Morris's general views, and his method of decimal
notation, but objected to his unit as too minute for ordinary use. Mr.
Jefferson proposed the dollar as the unit of account and payment, and
that its divisions and subdivisions should be in the decimal ratio. This
plan was adopted in August, 1785, and in 1786 the names and characters
of the coins were determined. The ordinance establishing the coinage was
passed August 8, 1786, and that establishing the mint, on the 16th of
October, in the same year. (Jefferson's Autobiography, Works, I. 52-54.
Life of Gouverneur Morris, I. 273. Journals of Congress, XI. 179, 254.)
[428] The materials for the final preparation of the instrument,
consisting of a reported draft in detail and the various resolutions
which had been adopted, were placed in the hands of a committee of
revision, of which William Samuel Johnson, of Connecticut, was the
chairman; the other members being Messrs. Hamilton, Gouverneur Morris,
Madison, and King. The chairman committed the work to Mr. Morris, and
the Constitution, as adopted, was prepared by him. (See Mr. Madison's
letter to Mr. Sparks, Life of Gouverneur Morris, I. 284. Madison's
Debates, Elliot, V. 530.)
[429] Life of Morris, I. 284-286.
[430] Ibid. 266.
[431] Madison, Elliot, V. 276, 277.
[432] Madison, Elliot, V. 556.
[433] Life, I. 287.
[434] Ibid. 288-290.
[435] Ibid. 517.
CHAPTER XII.
KING.
Rufus King, celebrated as a jurist, a statesman, an orator, and a
diplomatist, was sent to the Convention by the Commonwealth of
Massachusetts. Born in her District of Maine, in 1755, and graduated at
Harvard College in 1777, he came very early into public life, and was
rarely out of it until his death, which occurred in 1827, in the
seventy-third year of his age.
His first public service was in the year 1778, as a volunteer in the
expedition against the British in Rhode Island, in which he acted as
aide-de-camp to General Sullivan. In 1780, he commenced the practice of
the law in the town of Newburyport, and was soon after elected from that
town to the legislature of the State. There he distinguished himself by
a very powerful speech in favor of granting to the general government
the five per cent. impost recommended by Congress as part of the revenue
system of 1783.
He was soon after elected a member of Congress from Massachusetts, in
which body he took his seat on the 6th of December, 1784, and served
until the close of the year 1787. He was thus a member both of the
Convention for forming the Constitution and of the Congress which
sanctioned and referred it to the people. He was also a member of the
Convention of Massachusetts, in which the Constitution was ratified by
that State.
Mr. King did not favor the plan of a convention for the revision of the
federal system, until after the meeting at Annapolis had been held; and,
indeed, he did not concur in its expediency, until after the troubles in
Massachusetts had made its necessity apparent. In 1785, as we have seen,
he joined with the other members of the Massachusetts delegation in
opposing it.[436] In the autumn of 1786, when the report of the
Annapolis Convention was before Congress, he expressed the opinion, in
person, to the legislature of Massachusetts, that the Articles of
Confederation could not be altered, except by the consent of Congress
and the confirmation of the several legislatures; that Congress ought,
in the first instance, to make the examination of the federal system,
since, if it was done by a convention, no legislature would have a right
to confirm it; and further, that, if Congress should reject the report
of a convention, the most fatal consequences might follow. For these
reasons, he at that time held Congress to be the proper body to propose
alterations.[437]
At the moment when he was making this address to the legislature, the
disturbances in Massachusetts were fast gathering into that formidable
insurrection, which two months afterwards burst forth in the interior of
the State.[438] Mr. King spoke of these commotions in grave and pointed
terms. He told the legislature that Congress viewed them with deep
anxiety; that every member of the national councils felt his life,
liberty, and property to be involved in the issue of their decisions;
that the United States would not be inactive on such an occasion, for,
if the lawful authority of the State were to be prostrated, every other
government would eventually be swept away. He entreated them to
remember, that, if the government were in a minority in the State, they
had a majority of every State in the Union to join them.[439]
He returned to Congress immediately. But there he found that the
reliance which he had placed upon the ability of the Confederation to
interfere and suppress such a rebellion was not well founded. The power
was even doubted, or denied, by some of the best statesmen in that body;
and although the insurrection was happily put down by the government of
the State itself, the fearful exposure of a want of external power
adequate to such emergencies produced in Mr. King, as in many others, a
great change of views, both as to the necessity for a radical change of
the national government and as to the mode of effecting it. His vote,
in February, was given to the proposition introduced by the delegation
of New York for a national convention; and when that failed, he united
with his colleague, Mr. Dane, in bringing forward the resolution by
which the Convention was finally sanctioned in Congress.[440]
The Convention having been sanctioned by Congress, no man was more ready
than Mr. King to maintain its power to deliberate on and propose any
alterations that Congress could have suggested in the Federal Articles.
He held that the proposing of an entire change in the mode of suffrage
in the national legislature, from a representation of the States alone
to a representation of the people, was within the scope of their powers,
and consistent with the Union; for if that Union, on the one hand,
involved the idea of a confederation, on the other hand it contained
also the idea of consolidation, from which a national character resulted
to the individuals of whom the States were composed. He doubted the
practicability of annihilating the State governments, but thought that
much of their power ought to be taken from them.[441] He declared, that,
when every _man_ in America might be secured in his rights, by a
government founded on equality of representation, he could not sacrifice
such a substantial good to the phantom of _State_ sovereignty. If this
illusion were to continue to prevail, he should be prepared for any
event, rather than sit down under a government founded on a vicious
principle of representation, and one that must be as short-lived as it
would be unjust.[442]
There is one feature of the Constitution with which the name of Mr. King
should always be connected, and of which he may be said, indeed, to have
been the author. Towards the close of the session, he introduced the
prohibition on the States to pass laws affecting the obligation of
contracts. It appears that the Ordinance for the government of the
Northwestern Territory, which had been passed by Congress about a month
previous, contained a similar prohibition on the States to be formed out
of that territory. That any of the jurists who were concerned in the
framing of either instrument foresaw at the moment all the great future
importance and extensive operation of this wise and effective provision,
we are not authorized to affirm. But a clause which has enabled the
supreme national judicature to exercise a vast, direct, and uniform
influence on the security of property throughout all the States of this
Confederacy, should be permanently connected with the names of its
authors.[443]
Mr. King was but little past the age of thirty when the Constitution
was adopted. After that event, he went to reside in the city of New
York, and entered upon the career of distinction which filled up the
residue of his life, as a Senator in Congress, and as Minister to
England. No formal biography of him has yet appeared; but when that duty
shall have been discharged by those to whom it appropriately belongs,
there will be added to our literature an account of a man of the most
eminent abilities and the purest patriotism, whose influence and agency
in the great transactions which attended the origin and first operations
of the government were of the utmost importance.
FOOTNOTES:
[436] Ante, p. 339, note.
[437] Mr. King being in Boston in October, 1786, was desired by the
legislature to attend and give an account of the state of national
affairs. For an abstract of his address, see Boston Magazine for the
year 1786, p. 406.
[438] Ante, p. 266 et seq.
[439] Ibid.
[440] Journals, XII. 15-17.
[441] Madison, Elliot, V. 212, 213.
[442] Madison, Elliot, V. 266.
[443] The Ordinance for the government of the Northwestern Territory was
drawn by Nathan Dane of Massachusetts. It was reported in Congress July
11th, 1787, and was passed July 13th. The committee by whom it was
reported were Messrs. Carrington and R. H. Lee of Virginia, Kearney of
Delaware, Smith of New York, and Mr. Dane. The clause relating to
contracts was in these words: "And in the just preservation of rights
and property, it is understood and declared, that no law ought ever to
be made or have force in the said territory, that shall in any manner
whatever interfere with or affect private contracts or engagements,
_bona fide_ and without fraud previously formed." On the 28th of August,
Mr. King moved in the Convention to insert the same clause in the
Constitution; but it was opposed, and was not finally adopted until
September 14, when it was incorporated in the phraseology in which it
now stands in the Constitution. (Madison, Elliot, V. 485; Journal of the
Convention, Elliot, I. 311.)
CHAPTER XIII.
CHARLES COTESWORTH PINCKNEY.
Charles Cotesworth Pinckney of South Carolina, the eldest son of a chief
justice of that Colony, distinguished both as a soldier and a civilian,
was educated in England, and read law at the Temple. He returned to his
native province in 1769, and commenced the practice of his profession;
which, like many of the young American barristers of that day, he was
obliged to abandon for the duties of the camp, when the troubles of the
Revolution began. He became colonel of the first regiment of the
Carolina infantry, and served under General Moultrie in the defence of
the fort on Sullivan's Island. This gallant resistance having freed the
South, for a time, from invasion, Pinckney repaired to the Northern
army, and was made aide-de-camp to General Washington; in which capacity
he served at the battles of the Brandywine and Germantown. He afterwards
acquired great distinction in the defence of South Carolina against the
British under Sir Henry Clinton.
On the return of peace, he devoted himself to the law, in which he
became eminent. He belonged to that school of public men, who had been
trained in the service of the country under the eye of Washington, and
who had experienced with him the fatal defects of the successive
governments which followed the Declaration of Independence. Of his
abilities, patriotism, and purity of character we have the strongest
evidence, in the repeated efforts made by Washington, after the
establishment of the Constitution, to induce him to accept some of the
most important posts in the government.
He was, indeed, one of that order of men to whom Washington gave his
entire confidence from the first. A ripe scholar, a profound lawyer,
with Revolutionary laurels of the most honorable kind,--wise, energetic,
and disinterested,--it is not singular that the people of South Carolina
should have selected him as one of their delegates to an assembly, which
was to frame a new constitution of government for the country to whose
service his earlier years had been devoted.
General Pinckney entered the Convention with a desire to adhere, if
possible, to the characteristic principles of the Confederation; but
also with the wish to make that government more effective, by giving to
it distinct departments and enlarged powers.[444] But in the progress of
the discussions, he surrendered these views, and became a party to those
arrangements by which mutual concessions between the opposing sections
of the Union made a different form of government a practicable result.
He was a strenuous supporter of the interests of the slaveholding
States, in all that related to their right to hold and increase their
slave population. He contended earnestly against a grant of authority to
the general government to prohibit the importation of slaves; for he
supposed that his constituents would not surrender that right. But he
finally entered into the arrangement, by which the postponement of the
power to prohibit the slave-trade to the year 1808 was made a ground of
consent on the part of the Southern States to give the regulation of
commerce to the Union. He considered it, he said, the true interest of
the Southern States to have no regulation of commerce; but he yielded
it, in consideration of the losses brought upon the commerce of the
Eastern States by the Revolution, and of their liberality towards the
interests of the Southern portion of the Confederacy.
The framers of the Constitution of the United States have often been
bitterly reproached for permitting the slave-trade to be carried on for
twenty years after the period of its formation; and the Eastern States
have been especially accused of a sordid spirit of trade in purchasing
for themselves the advantage of a national regulation of commerce by
this concession. It is the duty of History, however, to record the facts
in their true relations.
At the time when the Convention for framing our Constitution was
assembled, no nation had prohibited the African slave-trade. The English
Quakers, following the example of their American brethren, had begun to
move upon the subject, but it was not brought formally before Parliament
until 1788; the trade was not abolished by act of Parliament until 1807,
nor made a felony until 1810. Napoleon's decree of 1815 was the first
French enactment against the traffic.
But in 1787, many of the members of the American Convention insisted
that the power to put an end to this trade ought to be vested in the new
government which they were endeavoring to form. But they found certain
of the Southern States unwilling to deprive themselves of the supply of
this species of labor for their new and yet unoccupied lands. Those
States would not consent to a power of immediate prohibition, and they
were extremely reluctant to yield even a power that might be used at a
future period. They preferred to keep the whole subject in their own
hands, and to determine for themselves when the importation should
cease. The members of the Convention, therefore, who desired the
abolition of this trade, found that, if they attempted to force these
States to a concession that it ought to be immediately prohibited,
either the regulation of commerce--the chief object for which the
Convention had been called--could not be obtained for the new
Constitution, or, if it were obtained, several of the Southern States
would be excluded from the Union. The question, then, that presented
itself to them was a great question of humanity and public policy, to be
judged and decided upon all the circumstances that surrounded it.
Were they to form a Union that should include only those States willing
to consent to an immediate prohibition of the slave-trade, and thus
leave the rest of the States out of that Union, and independent of its
power to restrain the importation of slaves? Were they to abandon the
hope of forming a new Constitution for the thirteen States that had gone
together through all the conflicts and trials and sacrifices of the
Revolution, or were they to form such a government, and secure to it the
power at some early period of putting an end to this traffic? If they
were to do the latter,--if the cause of humanity demanded action upon
this and all the other great objects dependent upon their
decisions,--how could the commercial interests of the country be better
used, than in the acquisition of a power to free its commerce from the
stain and reproach of this inhuman traffic? By the arrangement which was
to form one of the principal "compromises" of the Constitution, American
commerce might achieve for itself the opportunity to do what no nation
had yet done. By this arrangement, it might be implied in the
fundamental law of the new government about to be created for the
American people, that the abolition of the slave-trade was an object
that ought to engage the attention of Christian states. Without it, the
abolition of this trade could not be secured within any time or by any
means capable of being foreseen or even conjectured.
That the framers of the Constitution judged wisely: that they acted upon
motives which will enable History to shield them from all reasonable
reproach; and that they brought about a result alike honorable to
themselves and to their country,--will not be denied by those who
remember and duly appreciate the fact, that the Congress of the United
States, under the Constitution, was the first legislative body in the
world to prohibit the carrying of slaves to the territories of foreign
countries.[445]
It is no inconsiderable honor to the statesmen situated as General
Pinckney and other representatives of the Southern States were, that
they should have frankly yielded the prejudices, and what they supposed
to be the interests, of their constituents, to the great object of
forming a more perfect union. Certainly they could urge, with equal if
not greater force and truth, the same arguments for the continuance of
the slave-trade, which for nearly twenty years afterwards were
continually heard in the British Parliament, and which postponed its
abolition until long after the people of England had become satisfied
both of its inhumanity and its impolicy. Whether General Pinckney was
right or wrong in the opinion that his constituents needed no national
regulation of commerce, there can be no doubt of his sincerity when he
expressed it. Nor can there be any doubt that he was fully convinced of
the fact, when he asserted that they would not adopt a constitution
that should vest in the national government an immediate power to
prohibit the importation of slaves. He made, therefore, a real
concession, when he consented to the prohibition at the end of twenty
years, and he made it in order that the union of the thirteen States
might be preserved under a Constitution adequate to its wants.
For this, as well as for other services, he is entitled to a place of
honor among the great men who framed the charter of our national
liberties; and when we recollect that by his action he armed the
national government with a power to free the American name from the
disgrace of tolerating the slave-trade, before it was effectually put
down by any other people in Christendom, we need not hesitate to rank
him high among those who made great sacrifices for the general welfare
of the country and the general good of mankind.[446]
FOOTNOTES:
[444] Madison, Elliot, V. 133.
[445] Denmark, it is said, abolished the foreign slave-trade and the
importation into her colonies in 1792, but the prohibitions were not to
take effect until 1804. 1 Kent's Commentaries, 198, note (citing Mr.
Wheaton).
[446] In the first draft of the Constitution reported by the Committee
of Detail, it was provided that the importation of such persons as the
States might think proper to admit should not be prohibited. When the
committee to arrange, if possible, certain compromises between the
Northern and Southern States was raised, this provision, with other
matters, was referred, and it was finally agreed that the importation
should not be prohibited before the year 1808. After the adoption of the
Constitution, Congress, by the acts of March 22d, 1794, and May 10,
1800, prohibited the citizens and residents of the United States from
carrying slaves to any foreign territory for the purpose of traffic. By
the act of March 2, 1807, the importation of slaves into the United
States after January 1, 1808, was prohibited under severe penalties. In
1818 and 1819 these penalties were further increased, and in 1820, the
offence was made piracy. Although the discussion of the subject
commenced in England at about the same time (1788), it was nearly twenty
years before a bill could be carried through Parliament for the
abolition of the traffic. Through the whole of that period, and down to
the very last, counsel were repeatedly heard at the bar, in behalf of
interested parties, to oppose the reform. The trade was finally
abolished by act of Parliament in March, 1807; it was made a felony in
1810, and declared to be piracy in 1824. While, therefore, the
representatives of a few of the Southern States of this Union refused to
consent to an immediate prohibition, they did consent to engraft upon
the Constitution what was in effect a declaration that the trade should
be prohibited at a fixed period of time; and the trade was thus
abolished by the United States, under a government of limited powers,
with respect to their own territories, as soon as it was abolished by
the "omnipotent" Parliament of Great Britain. Moreover, by consenting to
give to the Union the power to regulate commerce, the Southern States
enabled Congress to abolish the slave-trade with foreign countries
thirteen years before the same trade was made unlawful to British
vessels.
CHAPTER XIV.
WILSON.
James Wilson, a signer of the Declaration of Independence, and one of
the early Judges of the Supreme Court of the United States, was one of
the first jurists in America during the latter part of the last century.
He was born in Scotland about the year 1742. After studying at Glasgow,
St. Andrews, and Edinburgh, he emigrated to Pennsylvania in 1766. He
became, soon after his arrival, a tutor in the Philadelphia College, in
which place he acquired great distinction as a classical scholar. He
subsequently studied the law, and was admitted to the bar; and, after
practising at different places, took up his residence at Philadelphia,
where he continued to reside during the rest of his life.[447]
For six years out of the twelve that elapsed from 1775 to the summoning
of the Convention of 1787, he was a member of Congress. Concerned in all
the great measures of independence, the establishment of the
Confederation, the peace, and the revenue system of 1783, he had
acquired a fund of political experience, which became of great value to
the country and to himself. Although a foreigner by birth, he was
thoroughly American in all his sentiments and feelings, and, at the time
he entered the Convention, there were few public men in the country who
perceived more clearly the causes of the inherent weakness of the
existing government. During the war, he had always considered the
States, with respect to that war, as forming one community;[448] and he
did not admit the idea, that, when the Colonies became independent of
Great Britain, they became independent of each other.[449] From the
Declaration of Independence he deduced the doctrine that the States by
which that measure was adopted were independent in their confederated
character, and not as individual communities. This rather subtile
distinction may seem now to have been of no great practical moment,
since the Confederation had actually united the States as such, rather
than the inhabitants of the States. But it was one of the positions
assumed by those who desired to combat the idea that the States, when
assembled in Convention, were restrained, by their position as equal and
independent sovereignties, from adopting a plan of government founded on
a representation of the people. To this objection Mr. Wilson repeatedly
addressed himself, and his efforts had great influence in causing the
adoption of the principle by which the people of the States became
directly represented in the government in the ratio of their numbers. He
showed that this principle had been improperly violated in the
Confederation, in consequence of the urgent necessity of forming a
union, and the impossibility at that time of forming any other than a
union of the States. As a new partition of the States was now
impracticable, it became necessary for them to surrender a portion of
their sovereignties, and to permit their inhabitants to enter into
direct relations with a new federal union. He pointed out the twofold
relation in which the people must henceforth stand;--in the one, they
would be citizens of the general government; in the other, they would be
citizens of their particular State. As both governments were derived
from the people, and both were designed for them, both ought to be
regulated on the same principles. In no other way could the larger
States consent to a new union; and if the smaller States could not admit
the justice of a proportionate representation, it was in vain to expect
to form a constitution that would embrace and satisfy the whole country.
This great idea of a representative government was in fact the aim of
all Mr. Wilson's exertions; and when the Constitution was formed, he
enforced this idea in the Convention of Pennsylvania with singular
power. His speech in that body is one of the most comprehensive and
luminous commentaries on the Constitution that have come down to us from
that period. It drew from Washington a high encomium, and it gained the
vote of Pennsylvania for the new government, against the ingenious and
captivating objections of its opponents.
The life of this wise, able, and excellent man was comparatively short.
In 1789, he was appointed by Washington a Judge of the Supreme Court of
the United States. While on a circuit in North Carolina, in the year
1798, he died at Edenton, at about the age of fifty-six. The character
of his mind and the sources of his influence will be best appreciated,
by examining some of the more striking passages of his great speech on
the Constitution.[450]
FOOTNOTES:
[447] Encyclopædia Americana, Art. "Wilson, James."
[448] Madison, Elliot, V. 78.
[449] Ibid. 213.
[450] The following extracts from the speech referred to will well repay
a careful perusal.
"_Tacitus_,--the profound politician Tacitus,--who lived towards the
latter end of those ages which are now denominated _ancient_, who
undoubtedly had studied the constitutions of all the states and kingdoms
known before and in his time, and who certainly was qualified, in an
uncommon degree, for understanding the full force and operation of each
of them, considers, after all he had known and read, a mixed government,
composed of the three simple forms, as a thing rather to be wished than
expected. And he thinks that, if such a government could even be
instituted, its duration could not be long. One thing is very
certain,--that the doctrine of representation in government was
altogether unknown to the ancients. Now, the knowledge and practice of
this doctrine is, in my opinion, essential to every system that can
possess the qualities of freedom, wisdom, and energy.
"It is worthy of remark, and the remark may, perhaps, excite some
surprise, that representation of the people is not, even at this day,
the sole principle of any government in Europe. Great Britain
boasts--and she may well boast--of the improvement she has made in
politics by the admission of representation; for the improvement is
important as far as it goes; but it by no means goes far enough. Is the
executive power of Great Britain founded on representation? This is not
pretended. Before the Revolution, many of the kings claimed to reign by
divine right, and others by hereditary right; and even at the
Revolution, nothing further was effected or attempted than the
recognition of certain parts of an original contract (_Blackstone_,
233), supposed, at some former remote period, to have been made between
the king and the people. A contract seems to exclude, rather than to
imply, delegated power. The judges of Great Britain are appointed by the
crown. The judicial authority, therefore, does not depend upon
representation, even in its most remote degree. Does representation
prevail in the legislative department of the British government? Even
here it does not predominate, though it may serve as a check. The
legislature consists of three branches,--the king, the lords, and the
commons. Of these, only the latter are supposed by the constitution to
represent the authority of the people. This short analysis clearly shows
to what a narrow corner of the British constitution the principle of
representation is confined. I believe it does not extend farther, if so
far, in any other government in Europe. For the American States were
reserved the glory and the happiness of diffusing this vital principle
throughout the constituent parts of government. Representation is the
chain of communication between the people and those to whom they have
committed the exercise of the powers of government. This chain may
consist of one or more links, but in all cases it should be sufficiently
strong and discernible.
"To be left without guide or precedent was not the only difficulty in
which the Convention were involved, by proposing to their constituents a
plan of a confederate republic. They found themselves embarrassed with
another, of peculiar delicacy and importance. I mean that of drawing a
proper line between the national government and the governments of the
several States. It was easy to discover a proper and satisfactory
principle on the subject. Whatever object of government is confined, in
its operation and effects, within the bounds of a particular State,
should be considered as belonging to the government of that State;
whatever object of government extends, in its operation or effects,
beyond the bounds of a particular State, should be considered as
belonging to the government of the United States. But though this
principle be sound and satisfactory, its application to particular cases
would be accompanied with much difficulty, because, in its application,
room must be allowed for great discretionary latitude of construction of
the principle. In order to lessen or remove the difficulty arising from
discretionary construction on this subject, an enumeration of particular
instances, in which the application of the principle ought to take
place, has been attempted with much industry and care. It is only in
mathematical science that a line can be described with mathematical
precision. But I flatter myself that, upon the strictest investigation,
the enumeration will be found to be safe and unexceptionable, and
accurate, too, in as great a degree as accuracy can be expected in a
subject of this nature. Particulars under this head will be more
properly explained, when we descend to the minute view of the
enumeration which is made in the proposed Constitution.
"After all, it will be necessary that, on a subject so peculiarly
delicate as this, much prudence, much candor, much moderation, and much
liberality should be exercised and displayed both by the federal
government and by the governments of the several States. It is to be
hoped that those virtues in government will be exercised and displayed,
when we consider that the powers of the federal government and those of
the State governments are drawn from sources equally pure. If a
difference can be discovered between them, it is in favor of the federal
government, because that government is founded on a representation of
the _whole_ Union; whereas the government of any particular State is
founded only on the representation of a part, inconsiderable when
compared with the whole. Is it not more reasonable to suppose that the
counsels of the whole will embrace the interest of every part, than that
the counsels of any part will embrace the interests of the whole?
"I intend not, Sir, by this description of the difficulties with which
the Convention were surrounded, to magnify their skill or their merit in
surmounting them, or to insinuate that any predicament in which the
Convention stood should prevent the closest and most cautious scrutiny
into the performance which they have exhibited to their constituents and
to the world. My intention is of far other and higher aim,--to evince,
by the conflicts and difficulties which must arise from the many and
powerful causes which I have enumerated, that it is hopeless and
impracticable to form a constitution which, in every part, will be
acceptable to every citizen, or even to every government, in the United
States; and that all which can be expected is, to form such a
constitution as, upon the whole, is the best that can possibly be
obtained. Man and perfection!--a state and perfection!--an assemblage of
states and perfection! Can we reasonably expect, however ardently we may
wish, to behold the glorious union?
"I can well recollect, though I believe I cannot convey to others, the
impression which, on many occasions, was made by the difficulties which
surrounded and pressed the Convention. The great undertaking sometimes
seemed to be at a stand; at other times, its motion seemed to be
retrograde. At the conclusion, however, of our work, many of the members
expressed their astonishment at the success with which it terminated.
"Having enumerated some of the difficulties which the Convention were
obliged to encounter in the course of their proceedings, I shall next
point out the end which they proposed to accomplish. Our wants, our
talents, our affections, our passions, all tell us that we were made for
a state of society. But a state of society could not be supported long
or happily without some civil restraint. It is true, that, in a state of
nature, any one individual may act uncontrolled by others; but it is
equally true, that, in such a state, every other individual may act
uncontrolled by him. Amidst this universal independence, the dissensions
and animosities between interfering members of the society would be
numerous and ungovernable. The consequence would be, that each member,
in such a natural state, would enjoy less liberty, and suffer more
interruption, than he would in a regulated society. Hence the universal
introduction of governments of some kind or other into the social state.
The liberty of every member is increased by this introduction; for each
gains more by the limitation of the freedom of every other member, than
he loses by the limitation of his own. The result is, that civil
government is necessary to the perfection and happiness of man. In
forming this government, and carrying it into execution, it is
_essential_ that the _interest_ and _authority_ of the whole community
should be binding in every part of it.
"The foregoing principles and conclusions are generally admitted to be
just and sound with regard to the nature and formation of single
governments, and the duty of submission to them. In some cases, they
will apply, with much propriety and force, to states already formed. The
advantages and necessity of civil government among individuals in
society are not greater or stronger than, in some situations and
circumstances, are the advantages and necessity of a federal government
among states. A natural and very important question now presents
itself,--Is such the situation, are such the circumstances, of the
United States? A proper answer to this question will unfold some very
interesting truths.
"The United States may adopt any one of four different systems. They may
become consolidated into one government, in which the separate existence
of the States shall be entirely absolved. They may reject any plan of
union or association, and act as separate and unconnected States. They
may form two or more confederacies. They may unite in one federal
republic. Which of these systems ought to have been formed by the
Convention? To support, with vigor, a single government over the whole
extent of the United States, would demand a system of the most
unqualified and the most unremitted despotism. Such a number of separate
States, contiguous in situation, unconnected and disunited in
government, would be, at one time, the prey of foreign force, foreign
influence, and foreign intrigue; at another, the victims of mutual rage,
rancor, and revenge. Neither of these systems found advocates in the
late Convention. I presume they will not find advocates in this. Would
it be proper to divide the United States into two or more confederacies?
It will not be unadvisable to take a more minute survey of this subject.
Some aspects under which it may be viewed are far from being, at first
sight, uninviting. Two or more confederacies would be each more compact
and more manageable than a single one extending over the same territory.
By dividing the United States into two or more confederacies, the great
collision of interests apparently or really different and contrary, in
the _whole extent_ of their dominion, would be broken, and, in a great
measure, disappear, in the several parts. But these advantages, which
are discovered from certain points of view, are greatly overbalanced by
inconveniences that will appear on a more accurate examination.
Animosities, and perhaps wars, would arise from assigning the extent,
the limits, and the rights of the different confederacies. The expenses
of governing would be multiplied by the number of federal governments.
The danger resulting from foreign influence and mutual dissensions would
not, perhaps, be less great and alarming in the instance of different
confederacies, than in the instance of different, though more numerous,
unassociated States.
"These observations, and many others that might be made on the subject,
will be sufficient to evince that a division of the United States into a
number of separate confederacies would probably be an unsatisfactory and
an unsuccessful experiment. The remaining system which the American
States may adopt, is a union of them under one confederate republic. It
will not be necessary to employ much time, or many arguments, to show
that this is the most eligible system that can be proposed. By adopting
this system, the vigor and decision of a wide-spreading monarchy may be
joined to the freedom and beneficence of a contracted republic. The
extent of territory, the diversity of climate and soil, the number and
greatness and connection of lakes and rivers with which the United
States are intersected and almost surrounded,--all indicate an enlarged
government to be fit and advantageous for them. The principles and
dispositions of their citizens indicate that, in this government,
liberty shall reign triumphant. Such, indeed, have been the general
opinions and wishes entertained since the era of independence. If those
opinions and wishes are as well founded as they have been general, the
late Convention were justified in proposing to their constituents one
confederate republic, as the best system of a national government for
the United States.
"In forming this system, it was proper to give minute attention to the
interest of all the parts; but there was a duty of still higher
import,--to feel and to show a predominating regard to the superior
interests of the whole. If this great principle had not prevailed, the
plan before us would never have made its appearance. The same principle
that was so necessary in forming it is equally necessary in our
deliberations, whether we should reject or ratify it.
"I make these observations with a design to prove and illustrate this
great and important truth,--that, in our decisions on the work of the
late Convention, we should not limit our views and regards to the State
of Pennsylvania. The aim of the Convention was to form a system of good
and efficient government, on the more extensive scale of the United
States. In this, and in every other instance, the work should be judged
with the same spirit with which it was performed. A principle of duty,
as well as candor, demands this.
"We have remarked, that civil government is necessary to the perfection
of society; we now remark, that civil liberty is necessary to the
perfection of civil government. Civil liberty is natural liberty itself,
divested of only that part which, placed in the government, produces
more good and happiness to the community than if it had remained in the
individual. Hence it follows that civil liberty, while it resigns a part
of natural liberty, retains the free and generous exercise of all the
human faculties, so far as it is compatible with the public welfare.
"In considering and developing the nature and end of the system before
us, it is necessary to mention another kind of liberty, which has not
yet, as far as I know, received a name. I shall distinguish it by the
appellation of _federal liberty_. When a single government is
instituted, the individuals of which it is composed surrender to it a
part of their natural independence, which they before enjoyed as men.
When a confederate republic is instituted, the communities of which it
is composed surrender to it a part of their political independence,
which they before enjoyed as States. The principles which directed, in
the former case, what part of the natural liberty of the man ought to be
given up, and what part ought to be retained, will give similar
directions in the latter case. The States should resign to the national
government that part, and that part only, of their political liberty,
which, placed in that government, will produce more good to the whole
than if it had remained in the several States. While they resign this
part of their political liberty, they retain the free and generous
exercise of all their other faculties, as States, so far as it is
compatible with the welfare of the general and superintending
confederacy.
"Since _States_, as well as citizens, are represented in the
Constitution before us, and form the objects on which that Constitution
is proposed to operate, it was necessary to notice and define _federal_
as well as _civil_ liberty.
"These general reflections have been made in order to introduce, with
more propriety and advantage, a practical illustration of the end
proposed to be accomplished by the late Convention.
"It has been too well known, it has been too severely felt, that the
present Confederation is inadequate to the government, and to the
exigencies, of the United States. The great struggle for Liberty in this
country, should it be unsuccessful, will probably be the last one which
she will have for her existence and prosperity in any part of the globe.
And it must be confessed that this struggle has, in some of the stages
of its progress, been attended with symptoms that foreboded no fortunate
issue. To the iron hand of Tyranny, which was lifted up against her, she
manifested, indeed, an intrepid superiority. She broke in pieces the
fetters which were forged for her, and showed that she was unassailable
by force. But she was environed with dangers of another kind, and
springing from a very different source. While she kept her eye steadily
fixed on the efforts of oppression, licentiousness was secretly
undermining the rock on which she stood.
"Need I call to your remembrance the _contrasted_ scenes of which we
have been witnesses? On the glorious conclusion of our conflict with
Britain, what high expectations were formed concerning us by others!
What high expectations did we form concerning ourselves! Have those
expectations been realized? No. What has been the cause? Did our
citizens lose their perseverance and magnanimity? No. Did they become
insensible of resentment and indignation at any high-handed attempt that
might have been made to injure or enslave them? No. What, then, has been
the cause? The truth is, we dreaded danger only on one side: this we
manfully repelled. But, on another side, danger, not less formidable,
but more insidious, stole in upon us; and our unsuspicious tempers were
not sufficiently attentive either to its approach or to its operations.
Those whom foreign strength could not overpower have wellnigh become the
victims of internal anarchy.
"If we become a little more particular, we shall find that the foregoing
representation is by no means exaggerated. When we had baffled all the
menaces of foreign power, we neglected to establish among ourselves a
government that would insure domestic vigor and stability. What was the
consequence? The commencement of peace was the commencement of every
disgrace and distress that could befall a people in a peaceful state.
Devoid of _national power_, we could not prohibit the extravagance of
our importations, nor could we derive a revenue from their excess.
Devoid of national _importance_, we could not procure for our exports a
tolerable sale at foreign markets. Devoid of national _credit_, we saw
our public securities melt in the hands of the holders, like snow before
the sun. Devoid of national _dignity_, we could not, in some instances,
perform our treaties on our part; and, in other instances, we could
neither obtain nor compel the performance of them on the part of others.
Devoid of national _energy_, we could not carry into execution our own
resolutions, decisions, or laws.
"Shall I become more particular still? The tedious detail would disgust
me. The years of languor are now over. We have felt the dishonor with
which we have been covered; we have seen the destruction with which we
have been threatened. We have penetrated to the causes of both, and when
we have once discovered them, we have begun to search for the means of
removing them. For the confirmation of these remarks, I need not appeal
to an enumeration of facts. The proceedings of Congress, and of the
several States, are replete with them. They all point out the weakness
and insufficiency as the cause, and an _efficient_ general government as
the only cure, of our political distempers.
"Under these impressions, and with these views, was the late Convention
appointed; and under these impressions, and with these views, the late
Convention met.
"We now see the great end which they proposed to accomplish. It was to
frame, for the consideration of their constituents, one federal and
national constitution,--a constitution that would produce the advantages
of good, and prevent the inconveniences of bad government;--a
constitution whose beneficence and energy would pervade the whole Union,
and bind and embrace the interests of every part;--a constitution that
would insure peace, freedom, and happiness to the States and people of
America.
"We are now naturally led to examine the means by which they proposed to
accomplish this end. This opens more particularly to our view the
discussion before us. But, previously to our entering upon it, it will
not be improper to state some general and leading principles of
government, which will receive particular application in the course of
our investigations.
"There necessarily exists, in every government, a power from which there
is no appeal, and which, for that reason, may be termed supreme,
absolute, and uncontrollable. Where does this power reside? To this
question writers on different governments will give different answers.
Sir William Blackstone will tell you, that in Britain the power is
lodged in the British Parliament; that the Parliament may alter the form
of the government; and that its power is absolute, without control. The
idea of a constitution, limiting and superintending the operations of
legislative authority, seems not to have been accurately understood in
Britain. There are, at least, no traces of practice conformable to such
a principle. The British Constitution is just what the British
Parliament pleases. When the Parliament transferred legislative
authority to Henry VIII., the act transferring could not, in the strict
acceptation of the term, be called unconstitutional.
"To control the power and conduct of the legislature by an overruling
constitution, was an improvement in the science and practice of
government reserved to the American States.
"Perhaps some politician, who has not considered with sufficient
accuracy our political systems, would answer that, in our governments,
the supreme power was vested in the constitutions. This opinion
approaches a step nearer to the truth, but does not reach it. The truth
is, that, in our governments, the supreme, absolute, and uncontrollable
power _remains_ in the people. As our constitutions are superior to our
legislatures, so the people are superior to our constitutions. Indeed,
the superiority, in this last instance, is much greater; for the people
possess over our constitutions control in _act_, as well as right.
"The consequence is, that the people may change the constitutions
whenever and however they please. This is a right of which no positive
institution can ever deprive them.
"These important truths, Sir, are far from being merely speculative. We,
at this moment, speak and deliberate under their immediate and benign
influence. To the operation of these truths we are to ascribe the scene,
hitherto unparalleled, which America now exhibits to the world,--a
gentle, a peaceful, a voluntary, and a deliberate transition from one
constitution of government to another. In other parts of the world, the
idea of revolutions in government is, by a mournful and an indissoluble
association, connected with the idea of wars, and all the calamities
attendant on wars. But happy experience teaches us to view such
revolutions in a very different light,--to consider them only as
progressive steps in improving the knowledge of government, and
increasing the happiness of society and mankind.
"Oft have I marked, with silent pleasure and admiration, the force and
prevalence, through the United States, of the principle that the supreme
power resides in the people, and that they never part with it. It may be
called the _panacea_ in politics. There can be no disorder in the
community but may here receive a radical cure. If the error be in the
legislature, it may be corrected by the constitution; if in the
constitution, it may be corrected by the people. There is a remedy,
therefore, for every distemper in government, if the people are not
wanting to themselves; if they are wanting to themselves, there is no
remedy. From their power, as we have seen, there is no appeal; of their
error, there is no superior principle of correction.
"There are three simple species of government;--monarchy, where the
supreme power is in a single person; aristocracy, where the supreme
power is in a select assembly, the members of which either fill up, by
election, the vacancies in their own body, or succeed to their places in
it by inheritance, property, or in respect of some _personal_ right or
qualification; a republic or democracy, where the people at large
_retain_ the supreme power, and act either collectively or by
representation.
"Each of these species of government has its advantages and
disadvantages.
"The advantages of a _monarchy_ are strength, despatch, secrecy, unity
of counsel. Its disadvantages are tyranny, expense, ignorance of the
situation and wants of the people, insecurity, unnecessary wars, evils
attending elections or successions.
"The advantages of _aristocracy_ are wisdom, arising from experience and
education. Its disadvantages are dissensions among themselves,
oppression to the lower orders.
"The advantages of _democracy_ are liberty, equality, cautious and
salutary laws, public spirit, frugality, peace, opportunities of
exciting and producing abilities of the best citizens. Its disadvantages
are dissensions, the delay and disclosure of public counsels, the
imbecility of public measures, retarded by the necessity of a numerous
consent.
"A government may be composed of two or more of the simple forms above
mentioned. Such is the British government. It would be an improper
government for the United States, because it is inadequate to such an
extent of territory, and because it is suited to an establishment of
different orders of men. A more minute comparison between some parts of
the British Constitution, and some parts of the plan before us, may
perhaps find a proper place in a subsequent period of our business.
"What is the nature and kind of that government which has been proposed
for the United States by the late Convention? In its principle, it is
purely democratical. But that principle is applied in different forms,
in order to obtain the advantages, and exclude the inconveniences, of
the simple modes of government.
"If we take an extended and accurate view of it, we shall find the
streams of power running in different directions, in different
dimensions, and at different heights,--watering, adorning, and
fertilizing the fields and meadows through which their courses are led;
but if we trace them, we shall discover that they all originally flow
from one abundant fountain.
"In this Constitution, _all authority is derived from the people_.
"Fit occasions will hereafter offer for particular remarks on the
different parts of the plan."
After an elaborate examination of the Constitution, he thus concludes:--
"A free government has often been compared to a pyramid. This allusion
is made with peculiar propriety in the system before you; it is laid on
the broad basis of the people; its powers gradually rise, while they are
confined in proportion as they ascend, until they end in that most
permanent of all forms. When you examine all its parts, they will
invariably be found to preserve that essential mark of free
governments,--a chain of connection with the people.
"Such, Sir, is the nature of this system of government; and the
important question at length presents itself to our view,--Shall it be
ratified, or shall it be rejected, by this Convention? In order to
enable us still further to form a judgment on this truly momentous and
interesting point, on which all we have, or can have, dear to us on
earth is materially depending, let us for a moment consider the
consequences that will result from one or the other measure. Suppose we
reject this system of government; what will be the consequence? Let the
farmer say,--he whose produce remains unasked for; nor can he find a
single market for its consumption, though his fields are blessed with
luxuriant abundance. Let the manufacturer, and let the mechanic, say;
they can feel, and tell their feelings. Go along the wharves of
Philadelphia, and observe the melancholy silence that reigns. I appeal
not to those who enjoy places and abundance under the present
government; they may well dilate upon the easy and happy situation of
our country. Let the merchants tell you what is our commerce; let them
say what has been their situation since the return of peace,--an era
which they might have expected would furnish additional sources to our
trade, and a continuance, and even an increase, to their fortunes. Have
these ideas been realized? or do they not lose some of their capital in
every adventure, and continue the unprofitable trade from year to year,
subsisting under the hopes of happier times under an efficient general
government? The ungainful trade carried on by our merchants has a
baneful influence on the interests of the manufacturer, the mechanic,
and the farmer; and these, I believe, are the chief interests of the
people of the United States.
"I will go further. Is there now a government among us that can do a
single act that a national government ought to do? Is there any power of
the United States that can _command_ a single shilling? This is a plain
and a home question.
"Congress may recommend; they can do no more: they may require; but they
must not proceed one step further. If things are bad now,--and that they
are not worse is only owing to hopes of improvement or change in the
system,--will they become better when those hopes are disappointed? We
have been told, by honorable gentlemen on this floor, that it is
improper to urge this kind of argument in favor of a new system of
government, or against the old one: unfortunately, Sir, these things are
too severely felt to be omitted; the people feel them; they pervade all
classes of citizens, and every situation from New Hampshire to Georgia:
the argument of necessity is the patriot's defence, as well as the
tyrant's plea.
"Is it likely, Sir, that, if this system of government is rejected, a
better will be framed and adopted? I will not expatiate on this subject;
but I believe many reasons will suggest themselves to prove that such
expectation would be illusory. If a better could be obtained at a future
time, is there any thing wrong in this? I go further. Is there any thing
wrong that cannot be amended more easily by the mode pointed out in the
system itself, than could be done by calling convention after
convention, before the organization of the government? Let us now turn
to the consequences that will result if we assent to and ratify the
instrument before you. I shall trace them as concisely as I can, because
I have trespassed already too long on the patience and indulgence of the
house.
"I stated, on a former occasion, one important advantage; by adopting
this system, we become a _nation_; at present, we are not one. Can we
perform a single national act? Can we do any thing to procure us
dignity, or to preserve peace and tranquillity? Can we relieve the
distress of our citizens? Can we provide for their welfare or happiness?
The powers of our government are mere sound. If we offer to treat with a
nation, we receive this humiliating answer: 'You cannot, in propriety of
language, make a treaty, because you have no power to execute it.' Can
we borrow money? There are too many examples of unfortunate creditors
existing, both on this and the other side of the Atlantic, to expect
success from this expedient. But could we borrow money, we cannot
command a fund, to enable us to pay either the principal or interest;
for, in instances where our friends have advanced the principal, they
have been obliged to advance the interest also, in order to prevent the
principal from being annihilated in their hands by depreciation. Can we
raise an army? The prospect of a war is highly probable. The accounts we
receive, by every vessel from Europe, mention that the highest exertions
are making in the ports and arsenals of the greatest maritime powers.
But whatever the consequence may be, are we to lie supine? We know we
are unable, under the Articles of Confederation, to exert ourselves; and
shall we continue so, until a stroke be made on our commerce, or we see
the debarkation of a hostile army on our unprotected shores? Who will
guarantee that our property will not be laid waste, that our towns will
not be put under contribution, by a small naval force, and subjected to
all the horror and devastation of war? May not this be done without
opposition, at least effectual opposition, in the present situation of
our country? There may be safety over the Appalachian Mountains, but
there can be none on our sea-coast. With what propriety can we hope our
flag will be respected, while we have not a single gun to fire in its
defence?
"Can we expect to make internal improvement, or accomplish any of those
great national objects which I formerly alluded to, when we cannot find
money to remove a single rock out of a river?
"This system, Sir, will at least make us a nation, and put it in the
power of the Union to act as such. We shall be considered as such by
every nation in the world. We shall regain the confidence of our
citizens, and command the respect of others.
"As we shall become a nation, I trust that we shall also form a national
character, and that this character will be adapted to the principles and
genius of our system of government: as yet we possess none; our
language, manners, customs, habits, and dress depend too much upon those
of other countries. Every nation, in these respects, should possess
originality; there are not, on any part of the globe, finer qualities
for forming a national character, than those possessed by the children
of America. Activity, perseverance, industry, laudable emulation,
docility in acquiring information, firmness in adversity, and patience
and magnanimity under the greatest hardships;--from these materials,
what a respectable national character may be raised! In addition to this
character, I think there is strong reason to believe that America may
take the lead in literary improvements and national importance. This is
a subject which, I confess, I have spent much pleasing time in
considering. That language, Sir, which shall become most generally known
in the civilized world will impart great importance over the nation that
shall use it. The language of the United States will, in future times,
be diffused over a greater extent of country than any other that we
know. The French, indeed, have made laudable attempts towards
establishing a universal language; but, beyond the boundaries of France,
even the French language is not spoken by one in a thousand. Besides the
freedom of our country, the great improvements she has made, and will
make, in the science of government, will induce the patriots and
_literati_ of every nation to read and understand our writings on that
subject; and hence it is not improbable that she will take the lead in
political knowledge.
"If we adopt this system of government, I think we may promise security,
stability, and tranquillity to the governments of the different States.
They would not be exposed to the danger of competition on questions of
territory, or any other that have heretofore disturbed them. A tribunal
is here found to decide, justly and quietly, any interfering claim; and
now is accomplished what the great mind of Henry IV. of France had in
contemplation,--a system of government for large and respectable
dominions, united and bound together, in peace, under a superintending
head, by which all their differences may be accommodated, without the
destruction of the human race. We are told by Sully that this was the
favorite pursuit of that good king during the last years of his life;
and he would probably have carried it into execution, had not the dagger
of an assassin deprived the world of his valuable life. I have, with
pleasing emotion, seen the wisdom and beneficence of a less efficient
power under the Articles of Confederation, in the determination of the
controversy between the States of Pennsylvania and Connecticut; but I
have lamented that the authority of Congress did not extend to
extinguish, entirely, the spark which has kindled a dangerous flame in
the district of Wyoming.
"Let gentlemen turn their attention to the amazing consequences which
this principle will have in this extended country. The several States
cannot war with each other; the general government is the great arbiter
in contentions between them; the whole force of the Union can be called
forth to reduce an aggressor to reason. What a happy exchange for the
disjointed, contentious State sovereignties!
"The adoption of this system will also secure us from danger, and
procure us advantages from foreign nations. This, in our situation, is
of great consequence. We are still an inviting object to one European
power at least; and, if we cannot defend ourselves, the temptation may
become too alluring to be resisted. I do not mean that, with an
efficient government, we should mix with the commotions of Europe. No,
Sir; we are happily removed from them, and are not obliged to throw
ourselves into the scale with any. This system will not hurry us into
war; it is calculated to guard against it. It will not be in the power
of a single man, or a single body of men, to involve us in such
distress; for the important power of declaring war is vested in the
legislature at large: this declaration must be made with the concurrence
of the House of Representatives: from this circumstance we may draw a
certain conclusion, that nothing but our national interest can draw us
into a war. I cannot forbear, on this occasion, the pleasure of
mentioning to you the sentiments of the great and benevolent man, whose
works I have already quoted on another subject. M. Necker has addressed
this country in language important and applicable in the strictest
degree to its situation and to the present subject. Speaking of war, and
the greatest caution that all nations ought to use in order to avoid its
calamities,--'And you, rising nation,' says he, 'whom generous efforts
have freed from the yoke of Europe! let the universe be struck with
still greater reverence at the sight of the privileges you have
acquired, by seeing you continually employed for the public felicity: do
not offer it as a sacrifice at the unsettled shrine of political ideas,
and of the deceitful combinations of warlike ambition; avoid, or at
least delay, participating in the passions of our hemisphere; make your
own advantage of the knowledge which experience alone has given to our
old age, and preserve, for a long time, the simplicity of childhood; in
short, honor human nature, by showing that, when left to its own
feelings, it is still capable of those virtues that maintain public
order, and of that prudence which insures public tranquillity.'
"Permit me to offer one consideration more, that ought to induce our
acceptance of this system. I feel myself lost in the contemplation of
its magnitude. By adopting this system, we shall probably lay a
foundation for erecting temples of liberty in every part of the earth.
It has been thought by many, that on the success of the struggle America
has made for freedom will depend the exertions of the brave and
enlightened of other nations. The advantages resulting from this system
will not be confined to the United States, but will draw from Europe
many worthy characters, who pant for the enjoyment of freedom. It will
induce princes, in order to preserve their subjects, to restore to them
a portion of that liberty of which they have for many ages been
deprived. It will be subservient to the great designs of Providence with
regard to this globe,--the multiplication of mankind, their improvement
in knowledge, and their advancement in happiness." (Elliot's Debates,
II. 423-434, 524-529.)
CHAPTER XV.
RANDOLPH.
Edmund Randolph, a "child of the Revolution,"[451] was Governor of
Virginia at the time of the Federal Convention. Probably it was on
account of his position as the chief magistrate of the State that he
was, by the general consent of his colleagues, selected to bring forward
the Virginia plan of government, which was submitted at an early period
of the deliberations, and which became, after great modifications, the
nucleus of the Constitution.
At an early age, in August, 1775, this gentleman joined the army at
Cambridge, and was immediately taken into Washington's military family
as an aide-de-camp.[452] He served in this capacity, however, no longer
than until the following November, when he was suddenly recalled to
Virginia by the death of his relative, Peyton Randolph, the President of
the First Continental Congress.
In 1779, he became a member of Congress from Virginia, and served until
March, 1782.
In 1786, he was elected Governor of Virginia, succeeding in that office
Patrick Henry. In this capacity, it became his duty to secure the
attendance of Washington upon the Federal Convention. This matter he
managed with great tact and delicacy; and, by the aid of other friends,
he succeeded in overcoming the scruples of the illustrious patriot then
reposing in the retirement of Mount Vernon.
Governor Randolph's conduct with regard to the Constitution might seem
to be marked by inconsistency, if we were not able to explain it by the
motive of disinterested patriotism from which he evidently acted. He
brought to the Convention the most serious apprehensions for the fate of
the Union. But he thought that the dangers with which it was surrounded
might be averted, by correcting and enlarging the Articles of
Confederation. When, at length, the government which was actually framed
was found to be a system containing far greater restraints upon the
powers of the States than he believed to be either expedient or safe, he
endeavored to procure a vote authorizing amendments to be submitted by
the State conventions and to be finally decided on by another general
convention. This proposition having been rejected, he declined to sign
the Constitution, desiring to be free to oppose or advocate its
adoption, when it should come before his own State, as his judgment
might dictate.
When the time for such action came, he saw that the rejection of the
Constitution must be followed by disunion. He had wearied himself in
endeavoring to find a possibility of preserving the Union without an
unconditional ratification by Virginia. To the people of Virginia,
therefore, he painted with great force and eloquence the consequences of
their becoming severed from the rest of the country. Virginia was not,
he said, invulnerable. She was accessible to a foreign enemy by sea, and
through the waters of the Chesapeake. Her situation by land was not less
exposed. Her frontiers adjoined the States of Pennsylvania, Maryland,
and North Carolina. With the first she had long had a disputed boundary,
concerning which there had been imminent danger of a war, that had been
averted with the greatest difficulty. With Maryland, there was an
ancient controversy upon the navigation of the Potomac, and that
controversy, if decided on grounds of strict right, would be determined
by the charter of Maryland in favor of that State. With North Carolina,
too, the boundary was still unsettled. Let them call to mind, then, the
history of every part of the world, where independent nations bordered
in the same way on one another. Such countries had ever been a perpetual
scene of bloodshed; the inhabitants of one escaping from punishment into
the other,--protection given to them,--consequent pursuit, violence,
robbery, and murder. A numerous standing army, that dangerous expedient,
could alone defend such borders.
On her Western frontier, Virginia was peculiarly exposed to the savages,
the natural enemies of the white race, whom foreign gold could always
incite to commit the most horrible ravages upon her people. Her slave
population, bearing a very large proportion to the whites,[453]
necessarily weakened her capacity to defend herself against such an
enemy.
Virginia, then, must be defended. Could they rely on the militia? Their
militia did not, at the utmost, exceed sixty thousand men. They had
performed exploits of great gallantry during the late war, but no
militia could be relied on as the sole protectors of any country.
Besides, a part of them would be wanted for the purposes of agriculture,
for manufactures, and for the mechanic arts necessary for the aid of the
farmer and the planter. They must have an army; and they must also have
a navy. But how were these to be maintained without money? The enormous
debt of Virginia, including her proportion of the Continental debts, was
already beyond her ability to pay from any revenue that could be derived
from her present commerce.
In this state of things, looking forward to the consequences of a
dissolution of the Union, he could not but remind the people of Virginia
of what took place in 1781, when the power of a dictator was given to
the commander-in-chief, to save the country from destruction. At some
period, not very remote, might not their future distress impel them to
do what the Dutch had done,--throw all power into the hands of a
Stadtholder? How infinitely more wise and eligible than this desperate
alternative would be a union with their American brethren. "I have
labored," said he, "for the continuance of the Union,--the rock of our
salvation. I believe, as surely as that there is a God, that our safety,
our political happiness and existence, depend on the union of the
States; and that, without this union, the people of this and the other
States will undergo the unspeakable calamities which discord, faction,
turbulence, war, and bloodshed have produced in other countries. The
American spirit ought to be mixed with American pride, to see the Union
magnificently triumphant. Let that glorious pride, which once defied the
British thunder, reanimate you again. Let it not be recorded of
Americans, that, after having performed the most gallant exploits, after
having overcome the most astonishing difficulties, and after having
gained the admiration of the world by their incomparable valor and
policy, they lost their acquired reputation, their national consequence
and happiness, by their own indiscretion. Let no future historian inform
posterity that they wanted wisdom and virtue to concur in any regular,
efficient government. Should any writer, doomed to so disagreeable a
task, feel the indignation of an honest historian, he would reprehend
our folly with equal severity and justice. Catch the present
moment,--seize it with avidity,--for it may be lost, never to be
regained! If the Union be now lost, I fear it will remain so for ever. I
believe gentlemen are sincere in their opposition, and actuated by pure
motives; but when I maturely weigh the advantages of the Union, and the
dreadful consequences of its dissolution; when I see safety on my right,
and destruction on my left; when I behold respectability and happiness
acquired by one course, but annihilated by the other,--I cannot hesitate
in my decision."[454]
NOTE.--The following account of the genealogy of Governor
Randolph, for which I am indebted to one of his female
descendants, was not received in season to be incorporated in
the text.
Edmund Randolph was the son of John Randolph and grandson of
Sir John Randolph, each of whom was Attorney-General of the
Colony under the royal government. He was educated at William
and Mary's College. Peyton Randolph, President of the First
Continental Congress, was also a son of Sir John Randolph,
and of course was uncle of Edmund Randolph, to whom he
devised his estate. Sir John Randolph was one of five or six
sons of William Randolph of Turkey Island in Virginia, from
whom all the Randolphs in Virginia are descended. Of this
William Randolph little is known, beyond the fact that he was
a large landholder, and a nephew of Thomas Randolph, the
poet, who flourished in the reigns of James I. and Charles
I., 1605-1634.
FOOTNOTES:
[451] His own description of himself in a speech made in the Virginia
Convention which ratified the Constitution. Elliot, III. 65.
[452] Washington's Writings, IX. 66.
[453] He stated the number of blacks to be 236,000, and that of the
whites only 352,000.
[454] Debates in the Virginia Convention, Elliot, III. 65-84, 85, 86.
CHAPTER XVI.
CONCLUSION OF THE PRESENT VOLUME.
The limits of this volume do not admit of a farther description of the
Framers of the Constitution. The nine persons of whom some account has
been given were the most important members of the Convention, and those
who exercised the largest influence upon its decisions. But the entire
list embraced other men of great distinction and ability, celebrated,
before and since the Convention, in that period of the political history
of America which commenced with the Revolution and closed with the
eighteenth century. Such were Roger Sherman of Connecticut, Robert
Morris of Pennsylvania, John Dickinson of Delaware, John Rutledge and
Charles Pinckney of South Carolina, and George Mason of Virginia. Of the
rest, all were men of note and influence in their respective States,
possessing the full confidence of the people whom they represented.
The whole assembly consisted of only fifty-five members, representing
twelve sovereign and distinct communities.[455] That so small a body
should have contained so large a number of statesmen of preëminent
ability is a striking proof of the nature of the crisis which called it
into existence. The age which had witnessed the Revolution, and the
wants and failures that succeeded it, produced and trained these great
men, made them capable of the highest magnanimity, and gave them the
intellectual power necessary to surmount the difficulties that
obstructed the progress of their country to prosperity and renown.
These, with a few of their contemporaries at that moment engaged in
other spheres of public duty, are the men who illustrate and adorn it,
and the knowledge of their lives and actions is of unspeakable
importance to the people of the United States.
To that people is committed a trust, which imposes upon them a greater
responsibility than now rests upon any other people on the globe. They
possess a written and exact constitution of government, framed with
great wisdom by their own deputed agents, and deliberately adopted and
enacted by themselves. That Constitution rules over a country of vast
extent, inhabited by more than twenty millions of prosperous and
intelligent freemen, who constitute one of the first nations of the
world. Nowhere on the face of the globe has the experiment of
self-government--that experiment so rarely tried, so rarely successful,
and so important to the welfare of mankind--been conducted on a scale so
grand and imposing. To prevent a failure so disastrous to the best
interests of the human race as the failure of that experiment here must
inevitably become; to guard this Constitution, the work of their own
hands, from every kind of attack; to administer it in the wise spirit in
which it was framed; to draw from it the blessings which it was designed
to confer; to unfold, to cherish, and to defend its great principles for
the benefit of a countless posterity;--this is the high duty imposed by
a noble ancestry and an overruling Providence upon the people of this
Union of each succeeding generation.
It calls upon them, with a remonstrance in whose tones there is both a
warning and a cheering voice, to remember that they have a country; to
appreciate and fearlessly to survey the truth, that national honor and
success, internal tranquillity and peace, reputation abroad and safety
at home, can exist, for them, only under the Union which the Divine
government, for its own all-wise purposes, has made a necessity of their
condition; and to see that the ruin of self-government in America must
involve its ruin for the whole world.[456]
FOOTNOTES:
[455] For a full list of the Delegates, see the Appendix to this volume.
[456] In this connection, I cannot avoid a reference to Dr. Francis
Lieber's profound and admirable work "On Civil Liberty and
Self-government." Whoever will follow that very able writer in his
masterly exposition of the principles of Anglican liberty, will become
satisfied that the American branch of it is more strictly a system of
"self-government" than any other, speaking with reference to the
application of the principle to every department. The destruction of
such a system, therefore, would be the destruction of self-government in
its most complete form. No one can suppose that the popular principles
in the English Constitution would continue to expand, as they have done
for the last fifty years, if the corresponding principles in America
were to be overthrown, or even if they were to receive a sensible check.
APPENDIX.
IN CONGRESS.
CIRCULAR LETTER OF CONGRESS RECOMMENDING THE ADOPTION OF THE ARTICLES OF
CONFEDERATION.
IN CONGRESS, YORKTOWN, November 17th, 1777.
Congress having agreed upon a plan of confederacy for securing the
freedom, sovereignty, and independence of the United States, authentic
copies are now transmitted for the consideration of the respective
legislatures.
This business, equally intricate and important, has in its progress been
attended with uncommon embarrassments and delay, which the most anxious
solicitude and persevering diligence could not prevent. To form a
permanent union, accommodated to the opinion and wishes of the delegates
of so many States differing in habits, produce, commerce, and internal
police, was found to be a work which nothing but time and reflection,
conspiring with a disposition to conciliate, could mature and
accomplish.
Hardly is it to be expected that any plan, in the variety of provisions
essential to our union, should exactly correspond with the maxims and
political views of every particular State. Let it be remarked, that,
after the most careful inquiry and the fullest information, this is
proposed as the best which could be adapted to the circumstances of all,
and as that alone which affords any tolerable prospect of general
satisfaction.
Permit us, then, earnestly to recommend these articles to the immediate
and dispassionate attention of the legislatures of the respective
States. Let them be candidly reviewed, under a sense of the difficulty
of combining in one general system the various sentiments and interests
of a continent divided into so many sovereign and independent
communities, under a conviction of the absolute necessity of uniting all
our counsels and all our strength to maintain and defend our common
liberties; let them be examined with a liberality becoming brethren and
fellow-citizens surrounded by the same imminent dangers, contending for
the same illustrious prize, and deeply interested in being for ever
bound and connected together by ties the most intimate and indissoluble;
and, finally, let them be adjusted with the temper and magnanimity of
wise and patriotic legislators, who, while they are concerned for the
prosperity of their own more immediate circle, are capable of rising
superior to local attachments, when they may be incompatible with the
safety, happiness, and glory of the general confederacy.
We have reason to regret the time which has elapsed in preparing this
plan for consideration; with additional solicitude we look forward to
that which must be necessarily spent before it can be ratified. Every
motive loudly calls upon us to hasten its conclusion.
More than any other consideration, it will confound our foreign enemies,
defeat the flagitious practices of the disaffected, strengthen and
confirm our friends, support our public credit, restore the value of our
money, enable us to maintain our fleets and armies, and add weight and
respect to our counsels at home and to our treaties abroad.
In short, this salutary measure can no longer be deferred. It seems
essential to our very existence as a free people, and without it we may
feel constrained to bid adieu to independence, to liberty and
safety,--blessings which, from the justice of our cause and the favor of
our Almighty Creator visibly manifested in our protection, we have
reason to expect, if, in an humble dependence on his divine providence,
we strenuously exert the means which are placed in our power.
To conclude, if the legislature of any State shall not be assembled,
Congress recommend to the executive authority to convene it without
delay; and to each respective legislature it is recommended to invest
its delegates with competent powers ultimately, in the name and behalf
of the State, to subscribe Articles of Confederation and Perpetual Union
of the United States; and to attend Congress for that purpose on or
before the tenth day of March next.
* * * * *
NEW JERSEY.
REPRESENTATION OF THE STATE OF NEW JERSEY ON THE ARTICLES OF
CONFEDERATION, READ IN CONGRESS, JUNE 25, 1778.
_To the United States in Congress assembled: The Representation of the
Legislative Council and General Assembly of the State of New Jersey
showeth_:--
That the Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and Georgia,
proposed by the honorable the Congress of the said States, severally for
their consideration, have been by us fully and attentively considered;
on which we beg leave to remark as follows:--
1. In the fifth article, where, among other things, the qualifications
of the delegates from the several States are described, there is no
mention of any oath, test, or declaration, to be taken or made by them
previous to their admission to seats in Congress. It is, indeed, to be
presumed the respective States will be careful that the delegates they
send to assist in managing the general interest of the Union take the
oaths to the government from which they derive their authority; but as
the United States, collectively considered, have interests, as well as
each particular State, we are of opinion that some test or obligation
binding upon each delegate while he continues in the trust, to consult
and pursue the former as well as the latter, and particularly to assent
to no vote or proceeding which may violate the general confederation, is
necessary. The laws and usages of all civilized nations evince the
propriety of an oath on such occasions; and the more solemn and
important the deposit, the more strong and explicit ought the obligation
to be.
2. By the sixth and ninth articles, the regulation of trade seems to be
committed to the several States within their separate jurisdictions, in
such a degree as may involve many difficulties and embarrassments, and
be attended with injustice to some States in the Union. We are of
opinion, that the sole and exclusive power of regulating the trade of
the United States with foreign nations ought to be clearly vested in the
Congress; and that the revenue arising from all duties and customs
imposed thereon ought to be appropriated to the building, equipping, and
manning a navy for the protection of the trade and defence of the
coasts, and to such other public and general purposes as to the Congress
shall seem proper, and for the common benefit of the States. This
principle appears to us to be just, and it may be added, that a great
security will by this means be derived to the Union from the
establishment of a common and mutual interest.
3. It is wisely provided, in the sixth article, that no body of forces
shall be kept up by any State in time of peace, except such number only
as, in the judgment of the United States in Congress assembled, shall be
deemed requisite to garrison the forts necessary for the defence of such
States. We think it ought also to be provided and clearly expressed,
that no body of troops be kept up by the United States in time of peace,
except such number only as shall be allowed by the assent of the nine
States. A standing army, a military establishment, and every appendage
thereof, in time of peace, is totally abhorrent from the ideas and
principles of this State. In the memorable act of Congress declaring the
United Colonies free and independent States, it is emphatically
mentioned, as one of the causes of separation from Great Britain, that
the sovereign thereof had kept up among us, in time of peace, standing
armies without the consent of the legislatures. It is to be wished the
liberties and happiness of the people may by the Confederation be
carefully and explicitly guarded in this respect.
4. On the eighth article we observe, that, as frequent settlements of
the quotas for supplies and aids to be furnished by the several States
in support of the general treasury will be requisite, so they ought to
be secured. It cannot be thought improper, or unnecessary, to have them
struck once at least in every five years, and oftener if circumstances
will allow. The quantity or value of real property in some States may
increase much more rapidly than in others; and therefore the quota which
is at one time just will at another be disproportionate.
5. The boundaries and limits of each State ought to be fully and finally
fixed and made known. This we apprehend would be attended with very
salutary effects, by preventing jealousies, as well as controversies,
and promoting harmony and confidence among the States. If the
circumstances of the times would not admit of this, previous to the
proposal of the Confederation to the several States, the establishment
of the principles upon which and the rule and mode by which the
determination might be conducted at a time more convenient and favorable
for despatching the same at an early period, not exceeding five years
from the final ratification of the Confederation, would be
satisfactory.
6. The ninth article provides, that no State shall be deprived of
territory for the benefit of the United States. Whether we are to
understand, that by territory is intended any land, the property of
which was heretofore vested in the crown of Great Britain, or that no
mention of such land is made in the Confederation, we are constrained to
observe, that the present war, as we always apprehended, was undertaken
for the general defence and interest of the confederating Colonies, now
the United States. It was ever the confident expectation of this State,
that the benefits derived from a successful contest were to be general
and proportionate; and that the property of the common enemy, falling in
consequence of a prosperous issue of the war, would belong to the United
States, and be appropriated to their use. We are therefore greatly
disappointed in finding no provision made in the Confederation for
empowering the Congress to dispose of such property, but especially the
vacant and impatented lands, commonly called the crown lands, for
defraying the expenses of the war, and for such other public and general
purposes. The jurisdiction ought in every instance to belong to the
respective States within the charter or determined limits of which such
lands may be seated; but reason and justice must decide that the
property which existed in the crown of Great Britain, previous to the
present Revolution, ought now to belong to the Congress, in trust for
the use and benefit of the United States. They have fought and bled for
it in proportion to their respective abilities; and therefore the reward
ought not to be predilectionally distributed. Shall such States as are
shut out by situation from availing themselves of the least advantage
from this quarter be left to sink under an enormous debt, whilst others
are enabled, in a short period, to replace all their expenditures from
the hard earnings of the whole confederacy?
7. The ninth article also provides, that requisitions for the land
forces to be furnished by the several States shall be proportioned to
the number of _white_ inhabitants in each. In the act of Independence we
find the following declaration: "We hold these truths to be
self-evident, that all men are created equal; that they are endued by
their Creator with certain unalienable rights, among which are life,
liberty, and the pursuit of happiness." Of this doctrine it is not a
very remote consequence, that all the inhabitants of every society, be
the color of their complexion what it may, are bound to promote the
interest thereof, according to their respective abilities. They ought,
therefore, to be brought into the account on this occasion. But
admitting necessity or expediency to justify the refusal of liberty in
certain circumstances to persons of a peculiar color, we think it
unequal to reckon upon such in this case. Should it be improper, for
special local reasons, to admit them in arms for the defence of the
nation, yet we conceive the proportion of forces to be embodied ought to
be fixed according to the whole number of inhabitants in the State, from
whatever class they may be raised. If the whole number of inhabitants in
a State, whose inhabitants are all whites, both those who are called
into the field, and those who remain to till the ground and labor in the
mechanical arts and otherwise, are reckoned in the estimate for striking
the proportion of forces to be furnished by that State, ought even a
part of the latter description to be left out in another? As it is of
indispensable necessity in every war, that a part of the inhabitants be
employed for the uses of husbandry and otherwise at home, while others
are called into the field, there must be the same propriety that the
owners of a different color who are employed for this purpose in one
State, while whites are employed for the same purpose in another, be
reckoned in the account of the inhabitants in the present instance.
8. In order that the quota of troops to be furnished in each State on
occasion of a war may be equitably ascertained, we are of opinion that
the inhabitants of the several States ought to be numbered as frequently
as the nature of the case will admit, once at least every five years.
The disproportioned increase in the population of different States may
render such provisions absolutely necessary.
9. It is provided in the ninth article, that the assent of nine States
out of the thirteen shall be necessary to determine in sundry cases of
the highest concern. If this proportion be proper and just, it ought to
be kept up, should the States increase in number, and a declaration
thereof be made for the satisfaction of the Union.
That we think it our indispensable duty to solicit the attention of
Congress to these considerations and remarks, and to request that the
purport and meaning of them be adopted as part of the general
confederation; by which means we apprehend the mutual interest of all
the States will be better secured and promoted, and that the legislature
of this State will then be justified in ratifying the same.
ACT OF NEW JERSEY ACCEPTING THE CONFEDERATION, PASSED NOVEMBER 19, 1778.
_An Act to authorize and empower the Delegates of the State
of New Jersey in Congress to subscribe and ratify the
Articles of Confederation and Perpetual Union between the
several States._
Whereas, Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed
in the Congress of the said States by the Honorable Henry Laurens,
Esquire, their President, have been laid before the legislature of this
State, to be ratified by the same, if approved: And whereas,
notwithstanding the terms of the said Articles of Confederation and
Perpetual Union are considered as in divers respects unequal and
disadvantageous to this State, and the objections to several of the said
articles, lately stated and sent to the general Congress aforesaid on
the part of this State, are still viewed as just and reasonable, and
sundry of them as of the most essential moment to the welfare and
happiness of the good people thereof: Yet, under the full conviction of
the present necessity of acceding to the confederacy proposed, and that
every separate and detached State interest ought to be postponed to the
general good of the Union: And moreover, in firm reliance that the
candor and justice of the several States will, in due time, remove as
far as possible the inequality which now subsists:--
SECT. 1. Be it enacted by the Council and General Assembly of this
State, and it is hereby enacted by the authority of the same, That the
Honorable John Witherspoon, Abraham Clark, Nathaniel Scudder, and Elias
Boudinot, Esquires, delegates representing this State in the Congress of
the United States, or any one or more of them, be and they are hereby
authorized, empowered, and directed, on behalf of this State, to
subscribe and ratify the said Articles of Confederation and Perpetual
Union between the States aforesaid.
SECT. 2. And be it further enacted by the authority aforesaid, That the
said Articles of Confederation and Perpetual Union, so as aforesaid
subscribed and ratified, shall thenceforth become conclusive as to this
State, and obligatory thereon.
* * * * *
DELAWARE.
RESOLUTIONS PASSED BY THE COUNCIL OF THE STATE OF DELAWARE,
JANUARY 23, 1779, RESPECTING THE ARTICLES OF CONFEDERATION
AND PERPETUAL UNION, AND CONCURRED IN BY THE HOUSE OF
ASSEMBLY, JANUARY 28, 1779, PREVIOUS TO THEIR PASSING A LAW
TO EMPOWER THEIR DELEGATES TO SIGN AND RATIFY THE SAID
ARTICLES OF CONFEDERATION AND PERPETUAL UNION.
_Resolved_, That the paper laid before Congress by the delegate from
Delaware, and read, be filed; provided, that it shall never be
considered as admitting any claim by the same set up or intended to be
set up.
The paper is as follows, viz.:--
IN THE COUNCIL, Saturday, January 23, 1779, P. M.
The Council, having resumed the consideration of the committee's report
on the Articles of Confederation and Perpetual Union, &c., came to the
following resolutions therein:--
_Resolved_, That this State think it necessary for the peace and safety
of the States to be included in the Union, that a moderate extent of
limits should be assigned for such of those States as claim to the
Mississippi or South Sea; and that the United States in Congress
assembled should and ought to have the power of fixing their western
limits.
_Resolved also_, That this State consider themselves justly entitled to
a right, in common with the members of the Union, to that extensive
tract of country which lies to the westward of the frontiers of the
United States, the property of which was not vested in, or granted to,
individuals at the commencement of the present war: That the same hath
been, or may be, gained from the king of Great Britain, or the native
Indians, by the blood and treasure of all, and ought therefore to be a
common estate, to be granted out on terms beneficial to the United
States.
_Resolved also_, That the courts of law established within this State
are competent for the purpose of determining all controversies
concerning the private right of soil claimed within the same; and they
now, and at all times hereafter, ought to have cognizance of all such
controversies: That the indeterminate provision, in the ninth article of
the Confederation, for deciding upon controversies that may arise about
some of those private rights of soil, tends to take away such
cognizance, and is contrary to the declaration of rights of this State;
and therefore ought to receive an alteration.
The Council, then, taking into consideration the strong and earnest
recommendations of Congress forthwith to accede to the present plan of
confederacy, and the probable disadvantages that may attend the further
delaying a ratification thereof,--
_Resolved_, That, notwithstanding the terms of the Articles of
Confederation aforesaid are considered as in divers respects unequal and
disadvantageous to this State, and the objections in the report of the
committee of this house, and the resolves made thereon, are viewed as
just and reasonable, and of great moment to the welfare and happiness of
the good people thereof; yet, under the full conviction of the present
necessity of acceding to the confederacy proposed, and in firm reliance
that the candor and justice of the several States will in due time
remove as far as possible the objectionable parts thereof, the delegates
appointed to represent this State in Congress, or any one or more of
them, be authorized, empowered, and directed, on behalf of this State,
to subscribe and ratify the said Articles of Confederation and Perpetual
Union between the several States of New Hampshire, Massachusetts Bay,
Rhode Island and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina, and Georgia; and that the said articles, when so
subscribed and ratified, shall be obligatory on this State.
Extract from the Minutes.
BENJAMIN VINING, _Clerk of the Council_.
Sent for concurrence.
IN HOUSE OF ASSEMBLY, Thursday, January 28, 1779.
The foregoing resolutions being read three times, and considered, are
concurred in.
NICHOLAS VAN DYKE, _Speaker_.
THURSDAY, FEBRUARY 16, 1779.
Mr. M'Kean, a delegate for Delaware, laid before Congress the following
instrument, empowering the delegates of that State, or any of them, to
ratify and sign the Articles of Confederation.
His Excellency Cesar Rodney, Esquire, President,
Captain-General, and Commander-in-Chief of the Delaware
State, to all to whom these Presents shall come,--Greeting.
Know ye, That, among the records remaining in the rolls office in the
Delaware State, there is a certain instrument of writing, purporting to
be an act of the General Assembly of the said State, which said act is
contained in the words and tenor here following, to wit:
IN THE YEAR 1779.
_An Act to authorize and empower the Delegates of the
Delaware State to subscribe and ratify the Articles of
Confederation and Perpetual Union between the several
States._
Whereas Articles of Confederation and Perpetual Union between the States
of New Hampshire, Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed
in the general Congress of the said States by the Honorable Henry
Laurens, Esquire, their then President, have been laid before the
legislature of this State, to be ratified by the same, if approved: And
whereas, notwithstanding the terms of the Articles of Confederation and
Perpetual Union are considered as in divers respects unequal and
disadvantageous to this State; and the objections stated on the part of
this State are viewed as just and reasonable, and of great moment to the
welfare and happiness of the good people thereof; yet, under the full
conviction of the present necessity of acceding to the present
confederacy proposed, and that the interest of particular States ought
to be postponed to the general good of the Union; and moreover, in firm
reliance that the candor and justice of the several States will in due
time remove as far as possible the objectionable parts thereof:
Be it enacted by the General Assembly of Delaware, and it is hereby
enacted by the authority of the same, That the Honorable John Dickinson,
Nicholas Van Dyke, and Thomas M'Kean, Esquires, delegates appointed to
represent this State in Congress, or any one or more of them, be, and
they hereby are, authorized, empowered, and directed, on behalf of this
State, to subscribe and ratify the said Articles of Confederation and
Perpetual Union between the several States aforesaid.
And be it further enacted by the authority aforesaid, That the said
Articles of Confederation and Perpetual Union, so as aforesaid
subscribed and ratified, shall thenceforth become obligatory on this
State.
Signed by order of the House of Assembly.
NICHOLAS VAN DYKE, _Speaker_.
Signed by order of the Council.
THOMAS COLLINS, _Speaker_.
Passed at Dover, February 1, 1779.
All which, by the tenor of these presents, I have caused to be
exemplified.
In testimony whereof, the great seal of the Delaware State is hereunto
affixed, at Dover, the sixth day of February, in the year of our Lord
one thousand seven hundred and seventy-nine, and in the third year of
the Independence of the United States of America.
CESAR RODNEY.
By his Excellency's command.
JAMES BOOTH, _Secretary_.
* * * * *
MARYLAND.
FRIDAY, MAY 21, 1779.
The delegates of Maryland informed Congress that they have received
instructions respecting the Articles of Confederation, which they are
directed to lay before Congress, and have entered on their Journals. The
instructions, being read, are as follows:--
_Instructions of the General Assembly of Maryland, to George
Plater, William Paca, William Carmichael, John Henry, James
Forbes, and Daniel of St. Thomas Jenifer, Esquires._
GENTLEMEN,--
Having conferred upon you a trust of the highest nature, it is evident
we place great confidence in your integrity, abilities, and zeal to
promote the general welfare of the United States, and the particular
interest of this State, where the latter is not incompatible with the
former; but to add greater weight to your proceedings in Congress, and
take away all suspicion that the opinions you there deliver and the
votes you give may be the mere opinions of individuals, and not
resulting from your knowledge of the sense and deliberate judgment of
the State you represent, we think it our duty to instruct as followeth
on the subject of the Confederation,--a subject in which, unfortunately,
a supposed difference of interest has produced an almost equal division
of sentiments among the several States composing the Union. We say a
supposed difference of interests; for if local attachments and
prejudices, and the avarice and ambition of individuals, would give way
to the dictates of a sound policy, founded on the principles of justice,
(and no other policy but what is founded on those immutable principles
deserves to be called sound,) we flatter ourselves this apparent
diversity of interests would soon vanish, and all the States would
confederate on terms mutually advantageous to all; for they would then
perceive that no other confederation than one so formed can be lasting.
Although the pressure of immediate calamities, the dread of their
continuance from the appearance of disunion, and some other peculiar
circumstances, may have induced some States to accede to the present
Confederation, contrary to their own interests and judgments, it
requires no great share of foresight to predict, that, when those causes
cease to operate, the States which have thus acceded to the
Confederation will consider it as no longer binding, and will eagerly
embrace the first occasion of asserting their just rights, and securing
their independence. Is it possible that those States who are ambitiously
grasping at territories to which, in our judgment, they have not the
least shadow of exclusive right, will use with greater moderation the
increase of wealth and power derived from those territories, when
acquired, than what they have displayed in their endeavors to acquire
them? We think not. We are convinced the same spirit which hath prompted
them to insist on a claim so extravagant, so repugnant to every
principle of justice, so incompatible with the general welfare of all
the States, will urge them on to add oppression to injustice. If they
should not be incited by a superiority of wealth and strength to oppress
by open force their less wealthy and less powerful neighbors, yet
depopulation, and consequently the impoverishment, of those States will
necessarily follow, which, by an unfair construction of the
Confederation, may be stripped of a common interest, and the common
benefits derivable from the Western country. Suppose, for instance,
Virginia indisputably possessed of the extensive and fertile country to
which she has set up a claim, what would be the probable consequences to
Maryland of such an undisturbed and undisputed possession? They cannot
escape the least discerning.
Virginia, by selling on the most moderate terms a small proportion of
the lands in question, would draw into her treasury vast sums of money;
and in proportion to the sums arising from such sales would be enabled
to lessen her taxes. Lands comparatively cheap, and taxes comparatively
low, with the lands and taxes of an adjacent State, would quickly drain
the State thus disadvantageously circumstanced of its most useful
inhabitants; its wealth and its consequence in the scale of the
confederated States would sink of course. A claim so injurious to more
than one half, if not to the whole, of the United States, ought to be
supported by the clearest evidence of the right. Yet what evidences of
that right have been produced? What arguments alleged in support either
of the evidences or the right? None that we have heard of deserving a
serious refutation.
It has been said, that some of the delegates of a neighboring State have
declared their opinion of the practicability of governing the extensive
dominion claimed by that State. Hence also the necessity was admitted of
dividing its territory, and erecting a new State under the auspices and
direction of the elder, from whom no doubt it would receive its form of
government, to whom it would be bound by some alliance or confederacy,
and by whose councils it would be influenced. Such a measure, if ever
attempted, would certainly be opposed by the other States as
inconsistent with the letter and spirit of the proposed Confederation.
Should it take place by establishing a sub-confederacy, _imperium in
imperio_, the State possessed of this extensive dominion must then
either submit to all the inconveniences of an overgrown and unwieldy
government, or suffer the authority of Congress to interpose at a future
time, and to lop off a part of its territory, to be erected into a new
and free State, and admitted into a confederation on such conditions as
shall be settled by nine States. If it is necessary for the happiness
and tranquillity of a State thus overgrown, that Congress should
hereafter interfere and divide its territory, why is the claim to that
territory now made, and so pertinaciously insisted on? We can suggest to
ourselves but two motives; either the declaration of relinquishing at
some future period a proportion of the country now contended for was
made to lull suspicion asleep, and to cover the designs of a secret
ambition, or, if the thought was seriously entertained, the lands are
now claimed to reap an immediate profit from the sale. We are convinced,
policy and justice require, that a country unsettled at the commencement
of this war, claimed by the British crown, and ceded to it by the treaty
of Paris, if wrested from the common enemy by the blood and treasure of
the thirteen States, should be considered as a common property, subject
to be parcelled out by Congress into free, convenient, and independent
governments, in such manner and at such times as the wisdom of that
assembly shall hereafter direct.
Thus convinced, we should betray the trust reposed in us by our
constituents, were we to authorize you to ratify, on their behalf, the
Confederation, unless it be further explained. We have coolly and
dispassionately considered the subject; we have weighed probable
inconveniences and hardships against the sacrifice of just and essential
rights; and do instruct you not to agree to the Confederation, unless an
article or articles be added thereto in conformity with our declaration.
Should we succeed in obtaining such article or articles, then you are
hereby fully empowered to accede to the Confederation.
That these our sentiments respecting our Confederation may be more
publicly known, and more explicitly and concisely declared, we have
drawn up the annexed declaration, which we instruct you to lay before
Congress, to have it printed, and to deliver to each of the delegates of
the other States in Congress assembled copies thereof, signed by
yourselves, or by such of you as may be present at the time of delivery;
to the intent and purpose that the copies aforesaid may be communicated
to our brethren of the United States, and the contents of the said
declaration taken into their serious and candid consideration.
Also we desire and instruct you to move, at a proper time, that these
instructions be read to Congress by their Secretary, and entered on the
Journals of Congress.
We have spoken with freedom, as became freemen; and we sincerely wish
that these our representations may make such an impression on that
assembly as to induce them to make such addition to the Articles of
Confederation as may bring about a permanent union.
A true copy from the proceeding of December 15, 1778.
Test,
T. DUCKETT, _C. H. D._
* * * * *
IN CONGRESS.
SATURDAY, APRIL 1, 1780.
The committee to whom was referred the act of the legislature of the
State of New York, entitled, "An Act to facilitate the completion of the
Articles of Confederation and Perpetual Union among the United States of
America," report,--
That, having met on the business, but not being able to agree to any
resolution thereon, desire to be discharged; which act is in the words
following, viz.:--
_An Act to facilitate the Completion of the Articles of
Confederation and Perpetual Union among the United States of
America._
Whereas nothing under Divine Providence can more effectually contribute
to the tranquillity and safety of the United States of America than a
federal alliance, on such liberal principles as will give satisfaction
to its respective members: And whereas the Articles of Confederation and
Perpetual Union recommended by the honorable the Congress of the United
States of America have not proved acceptable to all the States, it
having been conceived that a portion of the waste and uncultivated
territory, within the limits or claim of certain States, ought to be
appropriated as a common fund for the expenses of the war: And the
people of the State of New York being on all occasions disposed to
manifest their regard for their sister States, and their earnest desire
to promote the general interest and security; and more especially to
accelerate the federal alliance, by removing, as far as it depends upon
them, the before-mentioned impediment to its final accomplishment:
Be it therefore enacted, by the people of the State of New York,
represented in Senate and Assembly, and it is hereby enacted by the
authority of the same, That it shall and may be lawful to and for the
delegates of this State, in the honorable Congress of the United States
of America, or the major part of such of them as shall be assembled in
Congress, and they the said delegates, or a major part of them, so
assembled, are hereby fully authorized and empowered, for and on behalf
of this State, and by proper and authentic acts or instruments, to limit
and restrict the boundaries of this State, in the western parts thereof,
by such line or lines, and in such manner and form, as they shall judge
to be expedient, either with respect to the jurisdiction as well as the
right or preëmption of soil, or reserving the jurisdiction in part, or
in the whole, over the lands which may be ceded, or relinquished, with
respect only to the right or preëmption of the soil.
And be it further enacted by the authority aforesaid, That the territory
which may be ceded or relinquished by virtue of this act, either with
respect to the jurisdiction as well as the right or preëmption of soil,
or the right or preëmption of soil only, shall be and enure for the use
and benefit of such of the United States as shall become members of the
federal alliance of the said States, and for no other use or purpose
whatever.
And be it further enacted by the authority aforesaid, That all the lands
to be ceded and relinquished by virtue of this act, for the benefit of
the United States, with respect to property, but which shall
nevertheless remain under the jurisdiction of this State, shall be
disposed of and appropriated in such manner only as the Congress of the
said States shall direct; and that a warrant under the authority of
Congress for surveying and laying out any part thereof shall entitle the
party in whose favor it shall issue to cause the same to be surveyed and
laid out and returned according to the directions of such warrant; and
thereupon letters patent under the great seal of this State shall pass
to the grantee for the estate specified in the said warrant; for which
no other fee or reward shall be demanded or received than such as shall
be allowed by Congress.
Provided always, and be it further enacted by the authority aforesaid,
That the trust reposed by virtue of this act shall not be executed by
the delegates of this State, unless at least three of the said delegates
shall be present in Congress.
_State of New York, ss._
I do hereby certify that the aforegoing is a true copy of the original
act, passed the 19th of February, 1780, and lodged in the Secretary's
office.
ROBERT HARPUR, _D'y Sec'y State_.
WEDNESDAY, SEPTEMBER 6, 1780.
Congress took into consideration the report of the committee to whom
were referred the instructions of the General Assembly of Maryland to
their delegates in Congress respecting the Articles of Confederation,
and the declaration therein referred to; the act of the legislature of
New York on the same subject; and the remonstrance of the General
Assembly of Virginia, which report was agreed to, and is in the words
following:--
That, having duly considered the several matters to them submitted, they
conceive it unnecessary to examine into the merits or policy of the
instructions or declaration of the General Assembly of Maryland, or of
the remonstrances of the General Assembly of Virginia, as they involve
questions a discussion of which was declined, on mature consideration,
when the Articles of Confederation were debated; nor, in the opinion of
the committee, can such questions be now revived with any prospect of
conciliation: That it appears more advisable to press upon these States
which can remove the embarrassments respecting the Western country a
liberal surrender of a portion of their territorial claims, since they
cannot be preserved entire without endangering the stability of the
general confederacy; to remind them how indispensably necessary it is to
establish the Federal Union on a fixed and permanent basis, and on
principles acceptable to all its respective members; how essential to
public credit and confidence, to the support of our army, to the vigor
of our councils, and success of our measures, to our tranquillity at
home, our reputation abroad, to our very existence as a free, sovereign,
and independent people; that we are fully persuaded the wisdom of the
respective legislatures will lead them to a full and impartial
consideration of a subject so interesting to the United States, and so
necessary to the happy establishment of the Federal Union; that they are
confirmed in these expectations by a view of the before-mentioned act of
the legislature of New York, submitted to their consideration; that this
act is expressly calculated to accelerate the federal alliance, by
removing, as far as depends on that State, the impediment arising from
the Western country, and for that purpose to yield up a portion of
territorial claim for the general benefit.
Whereupon,
_Resolved_, That copies of the several papers referred to the committee
be transmitted, with a copy of the report, to the legislatures of the
several States; and that it be earnestly recommended to these States who
have claims to the Western country to pass such laws, and give their
delegates in Congress such powers, as may effectually remove the only
obstacle to a final ratification of the Articles of Confederation: and
that the legislature of Maryland be earnestly requested to authorize
their delegates in Congress to subscribe the said articles.
* * * * *
MARYLAND.
MONDAY, FEBRUARY 12, 1781.
The delegates of Maryland laid before Congress a certified copy of an
act of the legislature of that State, which was read as follows:--
_An Act to empower the Delegates of this State in Congress to subscribe
and ratify the Articles of Confederation._
Whereas it hath been said that the common enemy is encouraged, by this
State not acceding to the Confederation, to hope that the union of the
sister States may be dissolved; and therefore prosecute the war in
expectation of an event so disgraceful to America; and our friends and
illustrious ally are impressed with an idea, that the common cause would
be promoted by our formally acceding to the Confederation: This General
Assembly, conscious that this State hath from the commencement of the
war strenuously exerted herself in the common cause, and fully satisfied
that, if no formal confederation was to take place, it is the fixed
determination of this State to continue her exertions to the utmost,
agreeable to the faith pledged in the union,--from an earnest desire to
conciliate the affections of the sister States, to convince all the
world of our unalterable resolution to support the independence of the
United States, and the alliance with his most Christian Majesty; and to
destroy for ever any apprehension of our friends, or hope in our
enemies, of this State being again united to Great Britain:
Be it enacted by the General Assembly of Maryland, That the delegates of
this State in Congress, or any two or three of them, shall be, and are
hereby, empowered and required, on behalf of this State, to subscribe
the Articles of Confederation and Perpetual Union between the States of
New Hampshire, Massachusetts Bay, Rhode Island and Providence
Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and Georgia, signed
in the general Congress of the said States by the Honorable Henry
Laurens, Esquire, their then President, and laid before the legislature
of this State to be ratified, if approved; and that the said Articles of
Confederation and Perpetual Union, so as aforesaid subscribed, shall
thenceforth be ratified and become conclusive as to this State, and
obligatory thereon.
And it is hereby declared, that, by acceding to the said Confederation,
this State doth not relinquish, or intend to relinquish, any right or
interest she hath with the other united or confederated States to the
back country; but claims the same as fully as was done by the
legislature of this State in their declaration which stands entered on
the journals of Congress: this State relying on the justice of the
several States hereafter, as to the said claim made by this State.
And it is further declared, That no article in the said Confederation
can or ought to bind this or any other State to guarantee any exclusive
claim of any particular State to the soil of the said back lands, or
any such claim of jurisdiction over the said lands, or the inhabitants
thereof.
By the House of Delegates, January 30, 1781.
Read and assented to.
By order,
F. GREEN, _Clerk_.
By the Senate, February 2, 1781.
Read and assented to.
By order,
JAS. MACCUBBIN, _Clerk_.
THOMAS LEE. [L. S.]
* * * * *
ARTICLES OF CONFEDERATION AND PERPETUAL UNION
BETWEEN THE STATES OF NEW HAMPSHIRE, MASSACHUSETTS BAY, RHODE
ISLAND AND PROVIDENCE PLANTATIONS, CONNECTICUT, NEW YORK, NEW
JERSEY, PENNSYLVANIA, DELAWARE, MARYLAND, VIRGINIA, NORTH
CAROLINA, SOUTH CAROLINA, AND GEORGIA.
ART. 1. The style of this Confederacy shall be "The United States of
America."
ART. 2. Each State retains its sovereignty, freedom, and independence,
and every power, jurisdiction, and right which is not by this
Confederation expressly delegated to the United States in Congress
assembled.
ART. 3. The said States hereby severally enter into a firm league of
friendship with each other for their common defence, the security of
their liberties, and their mutual and general welfare; binding
themselves to assist each other against all force offered to or attacks
made upon them on account of religion, sovereignty, trade, or any other
pretence whatever.
ART. 4. The better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this union, the
free inhabitants of each of these States (paupers, vagabonds, and
fugitives from justice excepted) shall be entitled to all privileges and
immunities of free citizens in the several States; and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions, and restrictions as the
inhabitants thereof respectively, provided that such restriction shall
not extend so far as to prevent the removal of property imported into
any State to any other State, of which the owner is an inhabitant;
provided also, that no imposition, duties, or restriction shall be laid
by any State on the property of the United States, or either of them.
If any person guilty of or charged with treason, felony, or other high
misdemeanor in any State, shall flee from justice and be found in any of
the United States, he shall, upon demand of the Governor or executive
power of the State from which he fled, be delivered up and removed to
the State having jurisdiction of his offence.
Full faith and credit shall be given in each of these States to the
records, acts, and judicial proceedings of the courts and magistrates of
every other State.
ART. 5. For the more convenient management of the general interests of
the United States, delegates shall be annually appointed, in such manner
as the legislature of each State shall direct, to meet in Congress on
the first Monday in November, in every year, with a power reserved to
each State to recall its delegates, or any of them, at any time within
the year, and to send others in their stead, for the remainder of the
year.
No State shall be represented in Congress by less than two nor by more
than seven members; and no person shall be capable of being a delegate
for more than three years in any term of six years; nor shall any
person, being a delegate, be capable of holding any office under the
United States, for which he, or any other for his benefit, receives any
salary, fees, or emolument of any kind.
Each State shall maintain its own delegates in any meeting of the
States, and while they act as members of the committee of the States.
In determining questions in the United States in Congress assembled,
each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or
questioned in any court or place out of Congress; and the members of
Congress shall be protected in their persons from arrests and
imprisonments, during the time of their going to and from and attendance
on Congress, except for treason, felony, or breach of the peace.
ART. 6. No State, without the consent of the United States in Congress
assembled, shall send any embassy to, or receive any embassy from, or
enter into any conference, agreement, alliance, or treaty with any
king, prince, or state; nor shall any person holding any office of
profit or trust under the United States, or any of them, accept of any
present, emolument, office, or title of any kind whatever from any king,
prince, or foreign state; nor shall the United States in Congress
assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, confederation, or
alliance whatever between them, without the consent of the United States
in Congress assembled, specifying accurately the purposes for which the
same is to be entered into, and how long it shall continue.
No State shall lay any imposts or duties, which may interfere with any
stipulations in treaties entered into by the United States in Congress
assembled, with any king, prince, or state, in pursuance of any treaties
already proposed by Congress to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any State, except
such number only as shall be deemed necessary by the United States in
Congress assembled for the defence of such State or its trade; nor shall
any body of forces be kept up by any State, in time of peace, except
such number only as, in the judgment of the United States in Congress
assembled, shall be deemed requisite to garrison the forts necessary for
the defence of such State; but every State shall always keep up a
well-regulated and disciplined militia, sufficiently armed and
accoutred, and shall provide and have constantly ready for use, in
public stores, a due number of field-pieces and tents, and a proper
quantity of arms, ammunition, and camp equipage.
No State shall engage in any war without the consent of the United
States in Congress assembled, unless such State be actually invaded by
enemies or shall have certain advice of a resolution being formed by
some nation of Indians to invade such State, and the danger is so
imminent as not to admit of a delay till the United States in Congress
assembled can be consulted; nor shall any State grant commission to any
ships or vessels of war, nor letters of marque or reprisal, except it be
after a declaration of war by the United States in Congress assembled,
and then only against the kingdom or state and the subjects thereof
against which war has been so declared, and under such regulations as
shall be established by the United States in Congress assembled, unless
such State be infested by pirates, in which case vessels of war may be
fitted out for that occasion and kept so long as the danger shall
continue, or until the United States in Congress assembled shall
determine otherwise.
ART. 7. When land forces are raised by any State for the common defence,
all officers of or under the rank of colonel shall be appointed by the
legislatures of each State respectively by whom such forces shall be
raised, or in such manner as such State shall direct; and all vacancies
shall be filled up by the State which first made the appointment.
ART. 8. All charges of war and all other expenses that shall be incurred
for the common defence or general welfare, and allowed by the United
States in Congress assembled, shall be defrayed out of a common
treasury, which shall be supplied by the several States in proportion to
the value of all land within each State granted to or surveyed for any
person, as such land and the buildings and improvements thereon shall be
estimated, according to such mode as the United States in Congress
assembled shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the
authority and direction of the legislatures of the several States,
within the time agreed upon by the United States in Congress assembled.
ART. 9. The United States in Congress assembled shall have the sole and
exclusive right and power of determining on peace and war, except in the
cases mentioned in the sixth article; of sending and receiving
ambassadors; entering into treaties and alliances, provided that no
treaty of commerce shall be made, whereby the legislative power of the
respective States shall be restrained from imposing such imposts and
duties on foreigners as their own people are subjected to, or from
prohibiting the exportation or importation of any species of goods or
commodities whatsoever; of establishing rules for deciding in all cases
what captures on land or water shall be legal, and in what manner prizes
taken by land or naval forces in the service of the United States shall
be divided or appropriated; of granting letters of marque and reprisal
in time of peace; appointing courts for the trial of piracies and
felonies committed on the high seas, and establishing courts for
receiving and determining finally appeals in all cases of captures,
provided that no member of Congress shall be appointed judge of any of
the said courts.
The United States in Congress assembled shall also be the last resort on
appeal in all disputes and differences now subsisting or that hereafter
may arise between two or more States concerning boundary, jurisdiction,
or any other cause whatever, which authority shall always be exercised
in the manner following: whenever the legislative or executive authority
or lawful agent of any State in controversy with another shall present a
petition to Congress, stating the matter in question and praying for a
hearing, notice thereof shall be given by order of Congress to the
legislative or executive authority of the other State in controversy,
and a day assigned for the appearance of the parties by their lawful
agents, who shall then be directed to appoint by joint consent
commissioners or judges to constitute a court for hearing and
determining the matter in question; but if they cannot agree, Congress
shall name three persons out of each of the United States, and from the
list of such persons each party shall alternately strike out one, the
petitioners beginning, until the number shall be reduced to thirteen;
and from that number not less than seven nor more than nine names, as
Congress shall direct, shall, in the presence of Congress, be drawn out
by lot; and the persons whose names shall be so drawn, or any five of
them, shall be commissioners or judges to hear and finally determine the
controversy, so always as a major part of the judges who shall hear the
cause shall agree in the determination: and if either party shall
neglect to attend at the day appointed, without showing reasons which
Congress shall judge sufficient, or, being present, shall refuse to
strike, the Congress shall proceed to nominate three persons out of each
State, and the Secretary of Congress shall strike in behalf of such
party absent or refusing; and the judgment and sentence of the court to
be appointed, in the manner before prescribed, shall be final and
conclusive; and if any of the parties shall refuse to submit to the
authority of such court, or to appear or defend their claim or cause,
the court shall nevertheless proceed to pronounce sentence or judgment,
which shall in like manner be final and decisive, the judgment or
sentence and other proceedings being in either case transmitted to
Congress, and lodged among the acts of Congress, for the security of the
parties concerned: provided, that every commissioner, before he sits in
judgment, shall take an oath, to be administered by one of the judges of
the Supreme or Superior Court of the State where the cause shall be
tried, "well and truly to hear and determine the matter in question,
according to the best of his judgment, without favor, affection, or hope
of reward"; provided, also, that no State shall be deprived of territory
for the benefit of the United States.
All controversies concerning the private right of soil, claimed under
different grants of two or more States, whose jurisdictions as they may
respect such lands and the States which passed such grants are adjusted,
the said grants or either of them being at the same time claimed to have
originated antecedent to such settlement of jurisdiction, shall, on the
petition of either party to the Congress of the United States, be
finally determined, as near as may be in the same manner as is before
prescribed for deciding disputes respecting territorial jurisdiction
between different States.
The United States in Congress assembled shall also have the sole and
exclusive right and power of regulating the alloy and value of coin
struck by their own authority, or by that of the respective States;
fixing the standard of weights and measures throughout the United
States; regulating the trade and managing all affairs with the Indians
not members of any of the States, provided that the legislative right
of any State within its own limits be not infringed or violated;
establishing and regulating post-offices from one State to another
throughout all the United States, and exacting such postage on the
papers passing through the same as may be requisite to defray the
expenses of the said office; appointing all officers of the naval
forces, and commissioning all officers whatever in the service of the
United States; making rules for the government and regulation of the
said land and naval forces, and directing their operations.
The United States in Congress assembled shall have authority to appoint
a committee to sit in the recess of Congress, to be denominated "a
Committee of the States," and to consist of one delegate from each
State, and to appoint such other committees and civil officers as may be
necessary for managing the general affairs of the United States, under
their direction; to appoint one of their number to preside, provided
that no person be allowed to serve in the office of President more than
one year in any term of three years; to ascertain the necessary sums of
money to be raised for the service of the United States, and to
appropriate and apply the same for defraying the public expenses; to
borrow money or emit bills on the credit of the United States,
transmitting every half-year to the respective States an account of the
sums of money so borrowed or emitted; to build and equip a navy; to
agree upon the number of land forces, and to make requisitions from each
State for its quota, in proportion to the number of white inhabitants in
such State; which requisition shall be binding, and thereupon the
legislature of each State shall appoint the regimental officers, raise
the men, and clothe, arm, and equip them in a soldierlike manner, at the
expense of the United States; and the officers and men to be clothed,
armed, and equipped shall march to the place appointed, and within the
time agreed on, by the United States in Congress assembled: but if the
United States in Congress assembled shall, on consideration of
circumstances, judge proper that any State should not raise men or
should raise a smaller number than its quota, and that any other State
should raise a greater number of men than the quota thereof, such extra
number shall be raised, officered, clothed, armed, and equipped in the
same manner as the quota of such State, unless the legislature of such
State shall judge that such extra number cannot be safely spared out of
the same, in which case they shall raise, officer, clothe, arm, and
equip as many of such extra number as they judge can be safely spared.
And the officers and men so clothed, armed, and equipped shall march to
the place appointed, and within the time agreed on, by the United States
in Congress assembled.
The United States in Congress assembled shall never engage in a war nor
grant letters of marque and reprisal in time of peace, nor enter into
any treaties or alliances, nor coin money nor regulate the value
thereof, nor ascertain the sums and expenses necessary for the defence
and welfare of the United States, or any of them; nor emit bills, nor
borrow money on the credit of the United States, nor appropriate money,
nor agree upon the number of vessels of war to be built or purchased, or
the number of land or sea forces to be raised, nor appoint a
commander-in-chief of the army or navy, unless nine States assent to the
same; nor shall a question on any other point, except for adjourning
from day to day, be determined, unless by the votes of a majority of the
United States in Congress assembled.
The Congress of the United States shall have power to adjourn to any
time within the year, and to any place within the United States, so that
no period of adjournment be for a longer duration than the space of six
months, and shall publish the journal of their proceedings monthly,
except such parts thereof relating to treaties, alliances, or military
operations, as in their judgment require secrecy; and the yeas and nays
of the delegates of each State on any question shall be entered on the
journal, when it is desired by any delegate; and the delegates of a
State, or any of them, at his or their request, shall be furnished with
a transcript of the said journal, except such parts as are above
excepted, to lay before the legislatures of the several States.
ART. 10. The Committee of the States, or any nine of them, shall be
authorized to execute, in the recess of Congress, such of the powers of
Congress as the United States in Congress assembled, by the consent of
nine States, shall, from time to time, think expedient to vest them
with; provided that no power be delegated to the said Committee, for the
exercise of which, by the Articles of Confederation, the voice of nine
States in the Congress of the United States assembled is requisite.
ART. 11. Canada, acceding to this Confederation, and joining in the
measures of the United States, shall be admitted into and entitled to
all the advantages of this Union; but no other Colony shall be admitted
into the same unless such admission be agreed to by nine States.
ART. 12. All bills of credit emitted, moneys borrowed, and debts
contracted by or under the authority of Congress, before the assembling
of the United States, in pursuance of the present Confederation, shall
be deemed and considered as a charge against the United States, for
payment and satisfaction whereof the said United States and the public
faith are hereby solemnly pledged.
ART. 13. Every State shall abide by the determinations of the United
States in Congress assembled on all questions which by this
Confederation are submitted to them. And the Articles of this
Confederation shall be inviolably observed by every State, and the Union
shall be perpetual; nor shall any alteration at any time hereafter be
made in any of them; unless such alteration be agreed to in a Congress
of the United States, and be afterwards confirmed by the legislatures of
every State.
These Articles shall be proposed to the legislatures of all the United
States, to be considered, and if approved of by them, they are advised
to authorize their delegates to ratify the same in the Congress of the
United States; which being done, the same shall become conclusive.
* * * * *
MEMBERS OF THE CONVENTION WHICH FORMED THE CONSTITUTION.[457]
Those with numbers before their names signed the Constitution. Those
without numbers attended, but did not sign. The dates denote the first
day of their attendance. Those in italics never attended.
NEW HAMPSHIRE.
1. John Langdon, 23 July.
_John Pickering._
2. Nicholas Gilman, 23 July.
_Benjamin West._
MASSACHUSETTS.
_Francis Dana._
Elbridge Gerry, 29 May.
3. Nathaniel Gorham, 28 May.
4. Rufus King, 25 May.
Caleb Strong, 28 May.
RHODE ISLAND. [No appointment.]
CONNECTICUT.
5. William S. Johnson, 2 June.
6. Roger Sherman, 30 May.
Oliver Ellsworth, 29 May.
NEW YORK.
Robert Yates, 25 May.
7. Alexander Hamilton, 25 May.
John Lansing, 2 June.
NEW JERSEY.
8. William Livingston, 5 June.
9. David Brearley, 25 May.
William C. Houston, 25 May.
10. William Patterson, 25 May.
_John Neilson._
_Abraham Clark._
11. Jonathan Dayton, 21 June.
PENNSYLVANIA.
12. Benjamin Franklin, 28 May.
13. Thomas Mifflin, 28 May.
14. Robert Morris, 25 May.
15. George Clymer, 28 May.
16. Thomas Fitzsimons, 25 May.
17. Jared Ingersoll, 28 May.
18. James Wilson, 25 May.
19. Gouverneur Morris, 25 May.
DELAWARE.
20. George Read, 25 May.
21. Gunning Bedford, Jr. 28 May.
22. John Dickinson, 28 May.
23. Richard Bassett, 25 May.
24. Jacob Broom, 25 May.
MARYLAND.
25. James McHenry, 29 May.
26. Daniel of St. Thomas
Jenifer, 2 June.
27. Daniel Carroll, 9 July.
John Francis Mercer, 6 Aug.
Luther Martin, 9 June.
VIRGINIA.
28. George Washington, 25 May.
_Patrick Henry_ (declined).
Edmund Randolph, 25 May.
29. John Blair, 25 May.
30. James Madison, Jr. 25 May.
George Mason, 25 May.
George Wythe, 25 May.
James McClurg (in the
room of P. Henry) 25 May.
NORTH CAROLINA.
_Richard Caswell_ (resigned).
Alexander Martin, 25 May.
William R. Davie, 25 May.
31. William Blount (in the
room of R. Caswell) 20 June.
_Willie Jones_ (declined).
32. Richard D. Spaight, 25 May.
33. Hugh Williamson (in the
room of W. Jones), 25 May.
SOUTH CAROLINA.
34. John Rutledge, 25 May.
35. Charles C. Pinckney, 25 May.
36. Charles Pinckney, 25 May.
37. Pierce Butler, 25 May.
GEORGIA.
38. William Few, 25 May.
39. Abraham Baldwin, 11 June.
William Pierce, 31 May.
_George Walton._
William Houstoun, 1 June.
_Nathaniel Pendleton._
FOOTNOTE:
[457] This Table is taken from the 12th volume of Mr. Sparks's edition
of Washington's Writings, p. 426.
END OF VOL. I.
* * * * *
Transcriber's Notes:
Obvious typos and punctuation errors repaired. Period spellings and
grammatical uses retained.
On rejoining "co-" and "pre-" with "o" and "e" roots at the ends of
lines, a diaresis was added to the second "o" or "e" per author practice
(for example: coöperation, preëminent).
Semicolons were consistently placed outside closing quotes in the
original; retained.
P. 78, Footnote #97: The form included blank spaces, represented here as
underlines.
P. 175, Footnote #179: Amount in the original was shown as $1,545,818
followed by 30/90 in fraction form; represented here as "$1,545,818 and
30/90."
P. 218, Marker for footnote #200 beginning on this page was missing. I
have placed it at the end of the paragraph: "disciplining the militia."
P. 431, Marker for footnote #417 beginning on this page was missing. I
have placed it at the end of the paragraph: "be for ever directed."
P. 489, Dupicate "APPENDIX" heading removed.
*** End of this LibraryBlog Digital Book "History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 - With Notices of its Principle Framers" ***
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