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diff --git a/40400-0.txt b/40400-0.txt new file mode 100644 index 0000000..8152169 --- /dev/null +++ b/40400-0.txt @@ -0,0 +1,17067 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 40400 *** + + 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 the Project Gutenberg EBook of History of the Origin, Formation, and +Adoption of the Constitution of the United States, Vol. 1, by George Ticknor Curtis + +*** END OF THE PROJECT GUTENBERG EBOOK 40400 *** |