The Fathers of the Constitution By Max Farrand A
Chronicle of the Establishment of the Union
Volume 13 of the Chronicles of America Series
Allen Johnson, Editor Assistant Editors Gerhard R. Lomer Charles W.
Jefferys
Abraham Lincoln Edition
New Haven: Yale University Press Toronto: Glasgow, Brook & Co. London:
Humphrey Milford Oxford University Press 1921
Copyright, 1921, by Yale University Press
Contents
The Fathers of the Constitution
Chapter Chapter Title Page
I. The Treaty of Peace 1
II. Trade and Industry 22
III. The Confederation 35
IV. The Northwest Ordinance 55
V. Darkness Before Dawn 81
VI. The Federalist Convention 108
VII. Finishing the Work 125
VIII. The Union Established 143
Appendix 167
*Declaration of Independence 167
*Articles of Confederation 175
*Northwest Territory Ordinance 190
*Constitution of the United States 201
Bibliographical Note 219
Notes on the Portraits 225
Index 239
THE FATHERS OF THE CONSTITUTION
CHAPTER I THE TREATY OF PEACE
"The United States of America"! It was in the Declaration of
Independence that this name was first and formally proclaimed to the
world, and to maintain its verity the war of the Revolution was fought.
Americans like to think that they were then assuming "among the Powers
of the Earth the equal and independent Station to which the Laws
of Nature and of Nature's God entitle them"; and, in view of their
subsequent marvelous development, they are inclined to add that it must
have been before an expectant world.
In these days of prosperity and national greatness it is hard to realize
that the achievement of independence did not place the United States on
a footing of equality with other countries and that, in fact, the new
state was more or less an unwelcome member of the world family. It is
nevertheless true that the latest comer into the family of nations
did not for a long time command the respect of the world. This lack
of respect was partly due to the character of the American population.
Along with the many estimable and excellent people who had come to
British North America inspired by the best of motives, there had come
others who were not regarded favorably by the governing classes of
Europe. Discontent is frequently a healthful sign and a forerunner of
progress, but it makes one an uncomfortable neighbor in a satisfied and
conservative community; and discontent was the underlying factor in
the migration from the Old World to the New. In any composite immigrant
population such as that of the United States there was bound to be a
large element of undesirables. Among those who came "for conscience's
sake" were the best type of religious protestants, but there were also
religious cranks from many countries, of almost every conceivable sect
and of no sect at all. Many of the newcomers were poor. It was common,
too, to regard colonies as inferior places of residence to which
objectionable persons might be encouraged to go and where the average
of the population was lowered by the influx of convicts and thousands of
slaves.
"The great number of emigrants from Europe"--wrote Thieriot, Saxon
Commissioner of Commerce to America, from Philadelphia in 1784--"has
filled this place with worthless persons to such a degree that scarcely
a day passes without theft, robbery, or even assassination." ¹ It would
perhaps be too much to say that the people of the United States were
looked upon by the rest of the world as only half civilized, but
certainly they were regarded as of lower social standing and of inferior
quality, and many of them were known to be rough, uncultured, and
ignorant. Great Britain and Germany maintained American missionary
societies, not, as might perhaps be expected, for the benefit of the
Indian or negro, but for the poor, benighted colonists themselves; and
Great Britain refused to commission a minister to her former colonies
for nearly ten years after their independence had been recognized.
¹ Quoted by W. E. Lingelbach, History Teacher's Magazine, March, 1913.
It is usually thought that the dregs of humiliation have been reached
when the rights of foreigners are not considered safe in a particular
country, so that another state insists upon establishing therein its own
tribunal for the trial of its citizens or subjects. Yet that is what the
French insisted upon in the United States, and they were supposed to be
especially friendly. They had had their own experience in America.
First the native Indian had appealed to their imagination. Then, at
an appropriate moment, they seemed to see in the Americans a living
embodiment of the philosophical theories of the time: they thought that
they had at last found "the natural man" of Rousseau and Voltaire;
they believed that they saw the social contract theory being worked
out before their very eyes. Nevertheless, in spite of this interest in
Americans, the French looked upon them as an inferior people over whom
they would have liked to exercise a sort of protectorate. To them the
Americans seemed to lack a proper knowledge of the amenities of life.
Commissioner Thieriot, describing the administration of justice in the
new republic, noticed that: "A Frenchman, with the prejudices of his
country and accustomed to court sessions in which the officers have
imposing robes and a uniform that makes it impossible to recognize
them, smiles at seeing in the court room men dressed in street clothes,
simple, often quite common. He is astonished to see the public enter and
leave the court room freely, those who prefer even keeping their hats
on." Later he adds: "It appears that the court of France wished to set
up a jurisdiction of its own on this continent for all matters involving
French subjects." France failed in this; but at the very time that
peace was under discussion Congress authorized Franklin to negotiate a
consular convention, ratified a few years later, according to which the
citizens of the United States and the subjects of the French King in
the country of the other should be tried by their respective consuls or
vice-consuls. Though this agreement was made reciprocal in its terms and
so saved appearances for the honor of the new nation, nevertheless
in submitting it to Congress John Jay clearly pointed out that it was
reciprocal in name rather than in substance, as there were few or no
Americans in France but an increasing number of Frenchmen in the United
States.
Such was the status of the new republic in the family of nations when
the time approached for the negotiation of a treaty of peace with the
mother country. The war really ended with the surrender of Cornwallis
at Yorktown in 1781. Yet even then the British were unwilling to concede
the independence of the revolted colonies. This refusal of recognition
was not merely a matter of pride; a division and a consequent weakening
of the empire was involved; to avoid this Great Britain seems to have
been willing to make any other concessions that were necessary. The
mother country sought to avoid disruption at all costs. But the time had
passed when any such adjustment might have been possible. The Americans
now flatly refused to treat of peace upon any footing except that of
independent equality. The British, being in no position to continue the
struggle, were obliged to yield and to declare in the first article of
the treaty of peace that "His Britannic Majesty acknowledges the said
United States ... to be free, sovereign, and independent states."
With France the relationship of the United States was clear and friendly
enough at the time. The American War of Independence had been brought
to a successful issue with the aid of France. In the treaty of alliance
which had been signed in 1778 had been agreed that neither France nor
the United States should, without the consent of the other, make peace
with Great Britain. More than that, in 1781, partly out of gratitude but
largely as a result of clever manipulation of factions in Congress by
the French Minister in Philadelphia, the Chevalier de la Luzerne, the
American peace commissioners had been instructed "to make the most
candid and confidential communications upon all subjects to the
ministers of our generous ally, the King of France; to undertake nothing
in the negotiations for peace or truce without their knowledge and
concurrence; and ultimately to govern yourselves by their advice and
opinion." ¹ If France had been actuated only by unselfish motives in
supporting the colonies in their revolt against Great Britain, these
instructions might have been acceptable and even advisable. But such was
not the case. France was working not so much with philanthropic purposes
or for sentimental reasons as for the restoration to her former position
of supremacy in Europe. Revenge upon England was only a part of a larger
plan of national aggrandizement.
¹ "Secret Journals of Congress," June 15, 1781.
The treaty with France in 1778 had declared that war should be continued
until the independence of the United States had been established, and it
appeared as if that were the main purpose of the alliance. For her
own good reasons France had dragged Spain into the struggle. Spain,
of course, fought to cripple Great Britain and not to help the United
States. In return for this support France was pledged to assist Spain
in obtaining certain additions to her territory. In so far as these
additions related to North America, the interests of Spain and those
of the United States were far from being identical; in fact, they were
frequently in direct opposition. Spain was already in possession of
Louisiana and, by prompt action on her entry into the war in 1780, she
had succeeded in getting control of eastern Louisiana and of practically
all the Floridas except St. Augustine. To consolidate these holdings
and round out her American empire, Spain would have liked to obtain
the title to all the land between the Alleghany Mountains and the
Mississippi. Failing this, however, she seemed to prefer that the region
northwest of the Ohio River should belong to the British rather than to
the United States.
Under these circumstances it was fortunate for the United States that
the American Peace Commissioners were broad-minded enough to appreciate
the situation and to act on their own responsibility. Benjamin Franklin,
although he was not the first to be appointed, was generally considered
to be the chief of the Commission by reason of his age, experience, and
reputation. Over seventy-five years old, he was more universally
known and admired than probably any man of his time. This many-sided
American--printer, almanac maker, writer, scientist, and philosopher--by
the variety of his abilities as well as by the charm of his manner
seemed to have found his real mission in the diplomatic field, where he
could serve his country and at the same time, with credit to himself,
preach his own doctrines.
When Franklin was sent to Europe at the outbreak of the Revolution,
it was as if destiny had intended him for that particular task. His
achievements had already attracted attention; in his fur cap and
eccentric dress "he fulfilled admirably the Parisian ideal of the forest
philosopher"; and with his facility in conversation, as well as by the
attractiveness of his personality, he won both young and old. But, with
his undoubted zeal for liberty and his unquestioned love of country,
Franklin never departed from the Quaker principles he affected and
always tried to avoid a fight. In these efforts, owing to his shrewdness
and his willingness to compromise, he was generally successful.
John Adams, being then the American representative at The Hague, was the
first Commissioner to be appointed. Indeed, when he was first named, in
1779, he was to be sole commissioner to negotiate peace; and it was the
influential French Minister to the United States who was responsible for
others being added to the commission. Adams was a sturdy New Englander
of British stock and of a distinctly English type--medium height, a
stout figure, and a ruddy face. No one questioned his honesty, his
straightforwardness, or his lack of tact. Being a man of strong mind,
of wide reading and even great learning, and having serene confidence in
the purity of his motives as well as in the soundness of his judgment,
Adams was little inclined to surrender his own views, and was ready
to carry out his ideas against every obstacle. By nature as well as by
training he seems to have been incapable of understanding the French; he
was suspicious of them and he disapproved of Franklin's popularity even
as he did of his personality.
Five Commissioners in all were named, but Thomas Jefferson and Henry
Laurens did not take part in the negotiations, so that the only other
active member was John Jay, then thirty-seven years old and already a
man of prominence in his own country. Of French Huguenot stock and type,
he was tall and slender, with somewhat of a scholar's stoop, and was
usually dressed in black. His manners were gentle and unassuming, but
his face, with its penetrating black eyes, its aquiline nose and pointed
chin, revealed a proud and sensitive disposition. He had been sent to
the court of Spain in 1780, and there he had learned enough to arouse
his suspicious, if nothing more, of Spain's designs as well as of the
French intention to support them.
In the spring of 1782 Adams felt obliged to remain at The Hague in order
to complete the negotiations already successfully begun for a commercial
treaty with the Netherlands. Franklin, thus the only Commissioner on the
ground in Paris, began informal negotiations alone but sent an urgent
call to Jay in Spain, who was convinced of the fruitlessness of his
mission there and promptly responded. Jay's experience in Spain and his
knowledge of Spanish hopes had led him to believe that the French were
not especially concerned about American interests but were in fact
willing to sacrifice them if necessary to placate Spain. He accordingly
insisted that the American Commissioners should disregard their
instructions and, without the knowledge of France, should deal directly
with Great Britain. In this contention he was supported by Adams when
he arrived, but it was hard to persuade Franklin to accept this point
of view, for he was unwilling to believe anything so unworthy of his
admiring and admired French. Nevertheless, with his cautious shrewdness,
he finally yielded so far as to agree to see what might come out of
direct negotiations.
The rest was relatively easy. Of course there were difficulties and such
sharp differences of opinion that, even after long negotiation, some
matters had to be compromised. Some problems, too, were found insoluble
and were finally left without a settlement. But such difficulties as
did exist were slight in comparison with the previous hopelessness of
reconciling American and Spanish ambitions, especially when the latter
were supported by France. On the one hand, the Americans were the
protégés of the French and were expected to give way before the claims
of their patron's friends to an extent which threatened to limit
seriously their growth and development. On the other hand, they were
the younger sons of England, uncivilized by their wilderness life,
ungrateful and rebellious, but still to be treated by England as
children of the blood. In the all-important question of extent of
territory, where Spain and France would have limited the United States
to the east of the Alleghany Mountains, Great Britain was persuaded
without great difficulty, having once conceded independence to the
United States, to yield the boundaries which she herself had formerly
claimed--from the Atlantic Ocean on the east to the Mississippi River
on the west, and from Canada on the north to the southern boundary
of Georgia. Unfortunately the northern line, through ignorance and
carelessness rather than through malice, was left uncertain at various
points and became the subject of almost continuous controversy until the
last bit of it was settled in 1911. ¹
¹ See Lord Bryce's Introduction (p. xxiv) to W. A. Dunning, The British
Empire and the United States (1914).
The fisheries of the North Atlantic, for which Newfoundland served as
the chief entrepôt, had been one of the great assets of North America
from the time of its discovery. They had been one of the chief prizes
at stake in the struggle between the French and the British for the
possession of the continent, and they had been of so much value that
a British statute of 1775 which cut off the New England fisheries was
regarded, even after the "intolerable acts" of the previous year, as the
height of punishment for New England. Many Englishmen would have been
glad to see the Americans excluded from these fisheries, but John Adams,
when he arrived from The Hague, displayed an appreciation of New England
interests and the quality of his temper as well by flatly refusing to
agree to any treaty which did not allow full fishing privileges. The
British accordingly yielded and the Americans were granted fishing
rights as "heretofore" enjoyed. The right of navigation of the
Mississippi River, it was declared in the treaty, should "forever
remain free and open" to both parties; but here Great Britain was simply
passing on to the United States a formal right which she had received
from France and was retaining for herself a similar right which might
sometime prove of use, for as long as Spain held both banks at the mouth
of the Mississippi River, the right was of little practical value.
Two subjects involving the greatest difficulty of arrangement were
the compensation of the Loyalists and the settlement of commercial
indebtedness. The latter was really a question of the payment of British
creditors by American debtors, for there was little on the other side
of the balance sheet, and it seems as if the frugal Franklin would have
preferred to make no concessions and would have allowed creditors to
take their own chances of getting paid. But the matter appeared to
Adams in a different light--perhaps his New England conscience was
aroused--and in this point of view he was supported by Jay. It was
therefore finally agreed "that creditors on either side shall meet
with no lawful impediment to the recovery of the full value in sterling
money, of all bona fide debts heretofore contracted." However just this
provision may have been, its incorporation in the terms of the treaty
was a mistake on the part of the Commissioners, because the Government
of the United States had no power to give effect to such an arrangement,
so that the provision had no more value than an emphatic expression of
opinion. Accordingly, when some of the States later disregarded this
part of the treaty, the British had an excuse for refusing to carry out
certain of their own obligations.
The historian of the Virginia Federal Convention of 1788, H. B. Grigsby,
relates an amusing incident growing out of the controversy over the
payment of debts to creditors in England:
A Scotchman, John Warden, a prominent lawyer and good classical scholar,
but suspected rightly of Tory leanings during the Revolution, learning
of the large minority against the repeal of laws in conflict with the
treaty of 1783 (i. e., especially the laws as to the collection of debts
by foreigners) caustically remarked that some of the members of the
House had voted against paying for the coats on their backs. The story
goes that he was summoned before the House in full session, and was
compelled to beg their pardon on his knees; but as he rose, pretending
to brush the dust from his knees, he pointed to the House and said
audibly, with evident double meaning, 'Upon my word, a dommed dirty
house it is indeed.' The Journal of the House, however, shows that the
honor of the delegates was satisfied by a written assurance from Mr.
Warden that he meant in no way to affront the dignity of the House or to
insult any of its members.
The other question, that of compensating the Loyalists for the loss of
their property, was not so simple a matter, for the whole story of the
Revolution was involved. There is a tendency among many scholars of
the present day to regard the policy of the British toward their
North American colonies as possibly unwise and blundering but as being
entirely in accordance with the legal and constitutional rights of the
mother country, and to believe that the Americans, while they may have
been practically and therefore morally justified in asserting their
independence, were still technically and legally in the wrong. It is
immaterial whether or not that point of view is accepted, for its mere
recognition is sufficient to explain the existence of a large number of
Americans who were steadfast in their support of the British side of the
controversy. Indeed, it has been estimated that as large a proportion
as one-third of the population remained loyal to the Crown. Numbers must
remain more or less uncertain, but probably the majority of the people
in the United States, whatever their feelings may have been, tried to
remain neutral or at least to appear so; and it is undoubtedly true
that the Revolution was accomplished by an aggressive minority and that
perhaps as great a number were actively loyal to Great Britain.
These Loyalists comprised at least two groups. One of these was a
wealthy, property-owning class, representing the best social element in
the colonies, extremely conservative, believing in privilege and
fearing the rise of democracy. The other was composed of the royal
office-holders, which included some of the better families, but was more
largely made up of the lower class of political and social hangers-on,
who had been rewarded with these positions for political debts incurred
in England. The opposition of both groups to the Revolution was
inevitable and easily to be understood, but it was also natural that
the Revolutionists should incline to hold the Loyalists, without
distinction, largely responsible for British pre-Revolutionary policy,
asserting that they misinformed the Government as to conditions and
sentiment in America, partly through stupidity and partly through
selfish interest. It was therefore perfectly comprehensible that the
feeling should be bitter against them in the United States, especially
as they had given efficient aid to the British during the war. In
various States they were subjected to personal violence at the hands of
indignant "patriots," many being forced to flee from their homes, while
their property was destroyed or confiscated, and frequently these acts
were legalized by statute.
The historian of the Loyalists of Massachusetts, James H. Stark, must
not be expected to understate the case, but when he is describing,
especially in New England, the reign of terror which was established to
suppress these people, he writes:
Loyalists were tarred and feathered and carried on rails, gagged and
bound for days at a time; stoned, fastened in a room with a fire and the
chimney stopped on top; advertised as public enemies, so that they would
be cut off from all dealings with their neighbors; they had bullets
shot into their bedrooms, their horses poisoned or mutilated; money or
valuable plate extorted from them to save them from violence, and on
pretence of taking security for their good behavior; their houses and
ships burned; they were compelled to pay the guards who watched them in
their houses, and when carted about for the mob to stare at and abuse,
they were compelled to pay something at every town.
There is little doubt also that the confiscation of property and the
expulsion of the owners from the community were helped on by people who
were debtors to the Loyalists and in this way saw a chance of
escaping from the payment of their rightful obligations. The "Act for
confiscating the estates of certain persons commonly called absentees"
may have been a measure of self-defense for the State but it was passed
by the votes of those who undoubtedly profited by its provisions.
Those who had stood loyally by the Crown must in turn be looked out for
by the British Government, especially when the claims of justice were
reinforced by the important consideration that many of those with
property and financial interests in America were relatives of
influential persons in England. The immediate necessity during the war
had been partially met by assisting thousands to go to Canada--where
their descendants today form an important element in the population and
are proud of being United Empire Loyalists--while pensions and gifts
were supplied to others. Now that the war was over the British were
determined that Americans should make good to the Loyalists for all that
they had suffered, and His Majesty's Commissioners were hopeful at least
of obtaining a proviso similar to the one relating to the collection of
debts. John Adams, however, expressed the prevailing American idea
when he said that "paying debts and compensating Tories" were two very
different things, and Jay asserted that there were certain of these
refugees whom Americans never would forgive.
But this was the one thing needed to complete the negotiations for
peace, and the British arguments on the injustice and irregularity of
the treatment accorded to the Loyalists were so strong that the American
Commissioners were finally driven to the excuse that the Government of
the Confederation had no power over the individual States by whom
the necessary action must be taken. Finally, in a spirit of mutual
concession at the end of the negotiations, the Americans agreed that
Congress should "recommend to the legislatures of the respective states
to provide for the restitution" of properties which had been confiscated
"belonging to real British subjects," and "that persons of any other
description" might return to the United States for a period of
twelve months and be "unmolested in their endeavours to obtain the
restitution."
With this show of yielding on the part of the American Commissioners it
was possible to conclude the terms of peace, and the preliminary treaty
was drawn accordingly and agreed to on November 30, 1782. Franklin had
been of such great service during all the negotiations, smoothing
down ruffed feelings by his suavity and tact and presenting difficult
subjects in a way that made action possible, that to him was accorded
the unpleasant task of communicating what had been accomplished to
Vergennes, the French Minister, and of requesting at the same time "a
fresh loan of twenty million francs." Franklin, of course, presented
his case with much "delicacy and kindliness of manner" and with a fair
degree of success. "Vergennes thought that the signing of the articles
was premature, but he made no inconvenient remonstrances, and procured
six millions of the twenty." ¹ On September 3, 1783, the definite
treaty of peace was signed in due time it was ratified by the British
Parliament as well as by the American Congress. The new state, duly
accredited, thus took its place in the family of nations; but it was
a very humble place that was first assigned to the United States of
America.
¹ Channing, History of the United States, vol. iii, p. 368.
CHAPTER II TRADE AND INDUSTRY
Though the word revolution implies a violent break with the past, there
was nothing in the Revolution that transformed the essential character
or the characteristics of the American people. The Revolution severed
the ties which bound the colonies to Great Britain; it created some new
activities; some soldiers were diverted from their former trades and
occupation; but, as the proportion of the population engaged in the war
was relatively small and the area of country affected for any length
of time was comparatively slight, it is safe to say that in general the
mass of the people remained about the same after the war as before. The
professional man was found in his same calling; the artisan returned
to his tools, if he had ever laid them down; the shopkeeper resumed
his business, if it had been interrupted; the merchant went back to
his trading; and the farmer before the Revolution remained a farmer
afterward.
The country as a whole was in relatively good condition and the people
were reasonably prosperous; at least, there was no general distress or
poverty. Suffering had existed in the regions ravaged by war, but no
section had suffered unduly or had had to bear the burden of war during
the entire period of fighting. American products had been in demand,
especially in the West India Islands, and an illicit trade with the
enemy had sprung up, so that even during the war shippers were able to
dispose of their commodities at good prices. The Americans are commonly
said to have been an agricultural people, but it would be more correct
to say that the great majority of the people were dependent upon
extractive industries, which would include lumbering, fishing, and even
the fur trade, as well as the ordinary agricultural pursuits. Save for
a few industries, of which shipbuilding was one of the most important,
there was relatively little manufacturing apart from the household
crafts. These household industries had increased during the war, but as
it was with the individual so it was with the whole country; the general
course of industrial activity was much the same as it had been before
the war.
A fundamental fact is to be observed in the economy of the young nation:
the people were raising far more tobacco and grain and were extracting
far more of other products than they could possibly use themselves; for
the surplus they must find markets. They had, as well, to rely upon the
outside world for a great part of their manufactured goods, especially
for those of the higher grade. In other words, from the economic point
of view, the United States remained in the former colonial stage of
industrial dependence, which was aggravated rather than alleviated by
the separation from Great Britain. During the colonial period, Americans
had carried on a large amount of this external trade by means of their
own vessels. The British Navigation Acts required the transportation
of goods in British vessels, manned by crews of British sailors, and
specified certain commodities which could be shipped to Great Britain
only. They also required that much of the European trade should pass by
way of England. But colonial vessels and colonial sailors came under
the designation of "British," and no small part of the prosperity of
New England, and of the middle colonies as well, had been due to the
carrying trade. It would seem therefore as if a primary need of the
American people immediately after the Revolution was to get access to
their old markets and to carry the goods as much as possible in their
own vessels.
In some directions they were successful. One of the products in greatest
demand was fish. The fishing industry had been almost annihilated by the
war, but with the establishment of peace the New England fisheries began
to recover. They were in competition with the fishermen of France and
England who were aided by large bounties, yet the superior geographical
advantages which the American fishermen possessed enabled them to
maintain and expand their business, and the rehabilitation of the
fishing fleet was an important feature of their programme. In other
directions they were not so successful. The British still believed in
their colonial system and applied its principles without regard to the
interests of the United States. Such American products as they wanted
they allowed to be carried to British markets, but in British vessels.
Certain commodities, the production of which they wished to encourage
within their own dominions, they added to the prohibited list. Americans
cried out indignantly that this was an attempt on the part of the
British to punish their former colonies for their temerity in revolting.
The British Government may well have derived some satisfaction from the
fact that certain restrictions bore heavily upon New England, as John
Adams complained; but it would seem to be much nearer the truth to
say that in a truly characteristic way the British were phlegmatically
attending to their own interests and calmly ignoring the United States,
and that there was little malice in their policy.
European nations had regarded American trade as a profitable field
of enterprise and as probably responsible for much of Great Britain's
prosperity. It was therefore a relatively easy matter for the United
States to enter into commercial treaties with foreign countries. These
treaties, however, were not fruitful of any great result; for, "with
unimportant exceptions, they left still in force the high import duties
and prohibitions that marked the European tariffs of the time, as well
as many features of the old colonial system. They were designed to
legalize commerce rather than to encourage it." ¹ Still, for a year or
more after the war the demand for American products was great enough
to satisfy almost everybody. But in 1784 France and Spain closed their
colonial ports and thus excluded the shipping of the United States. This
proved to be so disastrous for their colonies that the French Government
soon was forced to relax its restrictions. The British also made some
concessions, and where their orders were not modified they were evaded.
And so, in the course of a few years, the West India trade recovered.
¹ Clive Day, Encyclopedia of American Government, Vol. i, p. 340.
More astonishing to the men of that time than it is to us was the fact
that American foreign trade fell under British commercial control again.
Whether it was that British merchants were accustomed to American ways
of doing things and knew American business conditions; whether other
countries found the commerce not as profitable as they had expected, as
certainly was the case with France; whether "American merchants and
sea captains found themselves under disadvantages due to the absence
of treaty protection which they had enjoyed as English subjects"; ² or
whether it was the necessity of trading on British capital--whatever the
cause may have been--within a comparatively few years a large part
of American trade was in British hands as it had been before the
Revolution. American trade with Europe was carried on through English
merchants very much as the Navigation Acts had prescribed.
² C. R. Fish, American Diplomacy, pp. 56-57.
From the very first settlement of the American continent the colonists
had exhibited one of the earliest and most lasting characteristics
of the American people--adaptability. The Americans now proceeded to
manifest that trait anew, not only by adjusting themselves to renewed
commercial dependence upon Great Britain, but by seeking new avenues of
trade. A striking illustration of this is to be found in the development
of trade with the Far East. Captain Cook's voyage around the world
(1768-1771), an account of which was first published in London in 1773,
attracted a great deal of attention in America; an edition of the New
Voyage was issued in New York in 1774. No sooner was the Revolution over
than there began that romantic trade with China and the northwest coast
of America, which made the fortunes of some families of Salem and Boston
and Philadelphia. This commerce added to the prosperity of the country,
but above all it stimulated the imagination of Americans. In the same
way another outlet was found in trade with Russia by way of the Baltic.
The foreign trade of the United States after the Revolution thus passed
through certain well-marked phases. First there was a short period of
prosperity, owing to an unusual demand for American products; this
was followed by a longer period of depression; and then came a gradual
recovery through acceptance of the new conditions and adjustment to
them.
A similar cycle may be traced in the domestic or internal trade. In
early days intercolonial commerce had been carried on mostly by water,
and when war interfered commerce almost ceased for want of roads. The
loss of ocean highways, however, stimulated road building and led to
what might be regarded as the first "good-roads movement" of the new
nation, except that to our eyes it would be a misuse of the word to call
any of those roads good. But anything which would improve the means of
transportation took on a patriotic tinge, and the building of roads and
the cutting of canals were agitated until turnpike and canal companies
became a favorite form of investment; and in a few years the interstate
land trade had grown to considerable importance. But in the meantime,
water transportation was the main reliance, and with the end of the war
the coastwise trade had been promptly resumed. For a time it prospered;
but the States, affected by the general economic conditions and by
jealousy, tried to interfere with and divert the trade of others to
their own advantage. This was done by imposing fees and charges and
duties, not merely upon goods and vessels from abroad but upon those of
their fellow States. James Madison described the situation in the words
so often quoted: "Some of the States, ... having no convenient ports
for foreign commerce, were subject to be taxed by their neighbors, thro
whose ports, their commerce was carryed on. New Jersey, placed between
Phila. & N. York, was likened to a Cask tapped at both ends: and N.
Carolina between Virga. & S. Carolina to a patient bleeding at both
Arms." ¹
¹ Records of the Federal Convention, vol. iii, p. 542.
The business depression which very naturally followed the short revival
of trade was so serious in its financial consequences that it has even
been referred to as the "Panic of 1785." The United States afforded
a good market for imported articles in 1788 and 1784, all the better
because of the supply of gold and silver which had been sent into the
country by England and France to maintain their armies and fleets and
which had remained in the United States. But this influx of imported
goods was one of the chief factors in causing the depression of 1785, as
it brought ruin to many of those domestic industries which had sprung
up in the days of non-intercourse or which had been stimulated by the
artificial protection of the war.
To make matters worse, the currency was in a confused condition. "In
1784 the entire coin of the land, except coppers, was the product of
foreign mints. English guineas, crowns, shillings and pence were still
paid over the counters of shops and taverns, and with them were mingled
many French and Spanish and some German coins.... The value of the gold
pieces expressed in dollars was pretty much the same the country over.
But the dollar and the silver pieces regarded as fractions of a dollar
had no less than five different values." ¹ The importation of foreign
goods was fast draining the hard money out of the country. In an effort
to relieve the situation but with the result of making it much worse,
several of the States began to issue paper money; and this was in
addition to the enormous quantities of paper which had been printed
during the Revolution and which was now worth but a small fraction of
its face value.
¹ McMaster, History of the People of the United States, vol. i, pp.
190-191.
The expanding currency and consequent depreciation in the value of money
had immediately resulted in a corresponding rise of prices, which for a
while the States attempted to control. But in 1778 Congress threw up its
hands in despair and voted that "all limitations of prices of gold and
silver be taken off," although the States for some time longer continued
to endeavor to regulate prices by legislation. ¹ The fluctuating value
of the currency increased the opportunities for speculation which
war conditions invariably offer, and "immense fortunes were suddenly
accumulated." A new financial group rose into prominence composed
largely of those who were not accustomed to the use of money and who
were consequently inclined to spend it recklessly and extravagantly.
¹ W. E. H. Lecky, The American Revolution, New York, 1898, pp. 288-294.
Many contemporaries comment upon these things, of whom Brissot de
Warville may be taken as an example, although he did not visit the
United States until 1788:
The inhabitants ... prefer the splendor of wealth and the show of
enjoyment to the simplicity of manners and the pure pleasures which
result from it. If there is a town on the American continent where the
English luxury displays its follies, it is New York. You will find here
the English fashions: in the dress of the women you will see the most
brilliant silks, gauzes, hats, and borrowed hair; equipages are rare,
but they are elegant; the men have more simplicity in their dress; they
disdain gewgaws, but they take their revenge in the luxury of the table;
luxury forms already a class of men very dangerous to society; I mean
bachelors; the expense of women causes matrimony to be dreaded by men.
Tea forms, as in England, the basis of parties of pleasure; many things
are dearer here than in France; a hairdresser asks twenty shilling a
month; washing costs four shillings a dozen. ¹
¹ Quoted by Henry Tuckerman, America and her Commentators, 1864.
An American writer of a later date, looking back upon his earlier years,
was impressed by this same extravagance, and his testimony may well be
used to strengthen the impression which it is the purpose of the present
narrative to convey:
The French and British armies circulated immense sums of money in gold
and silver coin, which had the effect of driving out of circulation
the wretched paper currency which had till then prevailed. Immense
quantities of British and French goods were soon imported: our people
imbibed a taste for foreign fashions and luxury; and in the course of
two or three years, from the close of the war, such an entire change had
taken place in the habits and manners of our inhabitants, that it almost
appeared as if we had suddenly become a different nation. The staid
and sober habits of our ancestors, with their plain home-manufactured
clothing, were suddenly laid aside, and European goods of fine quality
adopted in their stead. Fine ruffles, powdered heads, silks and
scarlets, decorated the men; while the most costly silks, satins,
chintzes, calicoes, muslins, etc., etc., decorated our females. Nor was
their diet less expensive; for superb plate, foreign spirits, wines,
etc., etc., sparkled on the sideboards of many farmers. The natural
result of this change of the habits and customs of the people--this
aping of European manners and morals, was to suddenly drain our country
of its circulating specie; and as a necessary consequence, the people
ran in debt, times became difficult, and money hard to raise. ¹
¹; Samuel Kercheval, History of the Valley of Virginia, 1833, pp.
199-200.
The situation was serious, and yet it was not as dangerous or even as
critical as it has generally been represented, because the fundamental
bases of American prosperity were untouched. The way by which Americans
could meet the emergency and recover from the hard times was fairly
evident--first to economize, and then to find new outlets for their
industrial energies. But the process of adjustment was slow and painful.
There were not a few persons in the United States who were even disposed
to regret that Americans were not safely under British protection
and prospering with Great Britain, instead of suffering in political
isolation.
CHAPTER III THE CONFEDERATION
When peace came in 1783 there were in the United States approximately
three million people, who were spread over the whole Atlantic coast
from Maine to Georgia and back into the interior as far as the Alleghany
Mountains; and a relatively small number of settlers had crossed the
mountain barrier. About twenty per cent of the population, or some
six hundred thousand, were negro slaves. There was also a large alien
element of foreign birth or descent, poor when they arrived in America,
and, although they had been able to raise themselves to a position of
comparative comfort, life among them was still crude and rough. Many
of the people were poorly educated and lacking in cultivation and
refinement and in a knowledge of the usages of good society. Not only
were they looked down upon by other nations of the world; there was
within the United States itself a relatively small upper class inclined
to regard the mass of the people as of an inferior order.
Thus, while forces were at work favorable to democracy, the gentry
remained in control of affairs after the Revolution, although their
numbers were reduced by the emigration of the Loyalists and their power
was lessened. The explanation of this aristocratic control may be found
in the fact that the generation of the Revolution had been accustomed
to monarchy and to an upper class and that the people were wont to
take their ideas and to accept suggestions from their betters without
question or murmur. This deferential attitude is attested by the
indifference of citizens to the right of voting. In our own day, before
the great extension of woman suffrage, the number of persons voting
approximated twenty per cent of the population, but after the Revolution
less than five per cent of the white population voted. There were many
limitations upon the exercise of the suffrage, but the small number of
voters was only partially due to these restrictions, for in later years,
without any radical change in suffrage qualifications, the proportion of
citizens who voted steadily increased.
The fact is that many of the people did not care to vote. Why should
they, when they were only registering the will or the wishes of their
superiors? But among the relatively small number who constituted the
governing class there was a high standard of intelligence. Popular
magazines were unheard of and newspapers were infrequent, so that men
depended largely upon correspondence and personal intercourse for the
interchange of ideas. There was time, however, for careful reading of
the few available books; there was time for thought, for writing, for
discussion, and for social intercourse. It hardly seems too much to say,
therefore, that there was seldom, if ever, a people--certainly never
a people scattered over so wide a territory--who knew so much about
government as did this controlling element of the people of the United
States.
The practical character, as well as the political genius, of the
Americans was never shown to better advantage than at the outbreak of
the Revolution, when the quarrel with the mother country was manifesting
itself in the conflict between the Governors, and other appointed
agents of the Crown, and the popularly elected houses of the colonial
legislatures. When the Crown resorted to dissolving the legislatures,
the revolting colonists kept up and observed the forms of government.
When the legislature was prevented from meeting, the members would come
together and call themselves a congress or a convention, and, instead of
adopting laws or orders, would issue what were really nothing more
than recommendations, but which they expected would be obeyed by their
supporters. To enforce these recommendations extra-legal committees,
generally backed by public opinion and sometimes concretely supported by
an organized "mob," would meet in towns and counties and would be often
effectively centralized where the opponents of the British policy were
in control.
In several of the colonies the want of orderly government became so
serious that, in 1775, the Continental Congress advised them to form
temporary governments until the trouble with Great Britain had been
settled. When independence was declared Congress recommended to all the
States that they should adopt governments of their own. In accordance
with that recommendation, in the course of a very few years each
State established an independent government and adopted a written
constitution. It was a time when men believed in the social contract
or the "compact theory of the state," that states originated through
agreement, as the case might be, between king and nobles, between king
and people, or among the people themselves. In support of this doctrine
no less an authority than the Bible was often quoted, such a passage for
example as II Samuel v, 3: "So all the elders of Israel came to the King
to Hebron; and King David made a covenant with them in Hebron before
the Lord; and they anointed David King over Israel." As a philosophical
speculation to explain why people were governed or consented to be
governed, this theory went back at least to the Greeks, and doubtless
much earlier; and, though of some significance in medieval thought, it
became of greater importance in British political philosophy, especially
through the works of Thomas Hobbes and John Locke. A very practical
application of the compact theory was made in the English Revolution of
1688, when in order to avoid the embarrassment of deposing the king, the
convention of the Parliament adopted the resolution: "That King James
the Second, having endeavored to subvert the Constitution of the
Kingdom, by breaking the original Contract between King and People, and
having, by the advice of Jesuits, and other wicked persons, violated
the fundamental Laws, and withdrawn himself out of this Kingdom, has
abdicated the Government, and that the throne is hereby vacant."
These theories were developed by Jean Jacques Rousseau in his Contrat
Social--a book so attractively written that it eclipsed all other works
upon the subject and resulted in his being regarded as the author of the
doctrine--and through him they spread all over Europe.
Conditions in America did more than lend color to pale speculation; they
seemed to take this hypothesis out of the realm of theory and to give it
practical application. What happened when men went into the wilderness
to live? The Pilgrim Fathers on board the Mayflower entered into an
agreement which was signed by the heads of families who took part in the
enterprise: "We, whose names are underwritten ... Do by these presents,
solemnly and mutually, in the Presence of God and one another, covenant
and combine ourselves together into a civil Body Politick."
Other colonies, especially in New England, with this example before
them of a social contract entered into similar compacts or "plantation
covenants," as they were called. But the colonists were also accustomed
to having written charters granted which continued for a time at least
to mark the extent of governmental powers. Through this intermingling
of theory and practice it was the most natural thing in the world, when
Americans came to form their new State Governments, that they should
provide written instruments framed by their own representatives,
which not only bound them to be governed in this way but also placed
limitations upon the governing bodies. As the first great series
of written constitutions, these frames of government attracted wide
attention. Congress printed a set for general distribution, and numerous
editions were circulated both at home and abroad.
The constitutions were brief documents, varying from one thousand to
twelve thousand words in length, which established the framework of the
governmental machinery. Most of them, before proceeding to practical
working details, enunciated a series of general principles upon the
subject of government and political morality in what were called
declarations or bills of rights. The character of these declarations may
be gathered from the following excerpts:
That all men are by nature equally free and independent, and have
certain inherent rights, ... the enjoyment of life and liberty, with the
means of acquiring and possessing property, and pursuing and obtaining
happiness and safety.
That no man, or set of men, are entitled to exclusive or separate
emoluments or privileges from the community, but in consideration of
public services.
The body politic is formed by a voluntary association of individuals;
it is a social compact by which the whole people covenants with each
citizen and each citizen with the whole people that all shall be
governed by certain laws for the common good.
That all power of suspending laws, or the execution of laws, by any
authority, without consent of the representatives of the people, is
injurious to their rights, and ought not to be exercised.
That general warrants, ... are grievous and oppressive, and ought not to
be granted.
All penalties ought to be proportioned to the nature of the offence.
That sanguinary laws ought to be avoided, as far as is consistent with
the safety of the State; and no law, to inflict cruel and unusual pains
and penalties, ought to be made in any case, or at any time hereafter.
No magistrate or court of law shall demand excessive bail or sureties,
impose excessive fines ...
Every individual has a natural and unalienable right to worship God
according to the dictates of his own conscience, and reason; ...
That the freedom of the press is one of the great bulwarks of liberty,
and can never be restrained but by despotic governments.
It will be perceived at once that these are but variations of the
English Declaration of Rights of 1689, which indeed was consciously
followed as a model; and yet there is a world-wide difference between
the English model and these American copies. The earlier document
enunciated the rights of English subjects, the recent infringement of
which made it desirable that they should be reasserted in convincing
form. The American documents asserted rights which the colonists
generally had enjoyed and which they declared to be "governing
principles for all peoples in all future times."
But the greater significance of these State Constitutions is to be found
in their quality as working instruments of government. There was
indeed little difference between the old colonial and the new State
Governments. The inhabitants of each of the Thirteen States had been
accustomed to a large measure of self-government, and when they took
matters into their own hands they were not disposed to make any radical
changes in the forms to which they had become accustomed. Accordingly
the State Governments that were adopted simply continued a framework of
government almost identical with that of colonial times. To be sure, the
Governor and other appointed officials were now elected either by the
people or the legislature, and so were ultimately responsible to the
electors instead of to the Crown; and other changes were made which in
the long run might prove of far-reaching and even of vital significance;
and yet the machinery of government seemed the same as that to which
the people were already accustomed. The average man was conscious of no
difference at all in the working of the Government under the new order.
In fact, in Connecticut and Rhode Island, the most democratic of all
the colonies, where the people had been privileged to elect their own
governors, as well as legislatures, no change whatever was necessary and
the old charters were continued as State Constitutions down to 1818 and
1842, respectively.
To one who has been accustomed to believe that the separation from a
monarchical government meant the establishment of democracy, a reading
of these first State Constitutions is likely to cause a rude shock.
A shrewd English observer, traveling a generation later in the United
States, went to the root of the whole matter in remarking of the
Americans that, "When their independence was achieved their mental
condition was not instantly changed. Their deference for rank and for
judicial and legislative authority continued nearly unimpaired." ¹ They
might declare that "all men are created equal," and bills of rights
might assert that government rested upon the consent of the governed;
but these constitutions carefully provided that such consent should
come from property owners, and, in many of the States, from religious
believers and even followers of the Christian faith. "The man of small
means might vote, but none save well-to-do Christians could legislate,
and in many states none but a rich Christian could be a governor." ² In
South Carolina, for example, a freehold of £10,000 currency was required
of the Governor, Lieutenant Governor, and members of the Council; £2,000
of the members of the Senate; and, while every elector was eligible to
the House of Representatives, he had to acknowledge the being of a God
and to believe in a future state of rewards and punishments, as well as
to hold "a freehold at least of fifty acres of land, or a town lot."
¹ George Combe, Tour of the United States, vol. i, p. 205.
² McMaster, Acquisition of Industrial, Popular, and Political Rights of
Man in America, p. 20.
It was government by a property-owning class, but in comparison with
other countries this class represented a fairly large and increasing
proportion of the population. In America the opportunity of becoming a
property-owner was open to every one, or, as that phrase would then
have been understood, to most white men. This system of class control is
illustrated by the fact that, with the exception of Massachusetts, the
new State Constitutions were never submitted to the people for approval.
The democratic sympathizer of today is inclined to point to those
first State Governments as a continuance of the old order. But to the
conservative of that time it seemed as if radical and revolutionary
changes were taking place. The bills of rights declared, "That no men,
or set of men, are entitled to exclusive or separate emoluments or
privileges from the community, but in consideration of public services."
Property qualifications and other restrictions on office-holding and the
exercise of the suffrage were lessened. Four States declared in their
constitutions against the entailment of estates, and primogeniture
was abolished in aristocratic Virginia. There was a fairly complete
abolition of all vestiges of feudal tenure in the holding of land, so
that it may be said that in this period full ownership of property was
established. The further separation of church and state was also carried
out.
Certainly leveling influences were at work, and the people as a whole
had moved one step farther in the direction of equality and democracy,
and it was well that the Revolution was not any more radical and
revolutionary than it was. The change was gradual and therefore more
lasting. One finds readily enough contemporary statements to the effect
that, "Although there are no nobles in America, there is a class of men
denominated 'gentlemen,' who, by reason of their wealth, their talents,
their education, their families, or the offices they hold, aspire to a
preëminence," but, the same observer adds, this is something which
"the people refuse to grant them." Another contemporary contributes the
observation that there was not so much respect paid to gentlemen of rank
as there should be, and that the lower orders of people behave as if
they were on a footing of equality with them.
Whether the State Constitutions are to be regarded as
property-conserving, aristocratic instruments, or as progressive
documents, depends upon the point of view. And so it is with the spirit
of union or of nationality in the United States. One student emphasizes
the fact of there being "thirteen independent republics differing ...
widely in climate, in soil, in occupation, in everything which makes
up the social and economic life of the people"; while another sees "the
United States a nation." There is something to be said for both sides,
and doubtless the truth lies between them, for there were forces making
for disintegration as well as for unification. To the student of the
present day, however, the latter seem to have been the stronger and more
important, although the possibility was never absent that the thirteen
States would go their separate ways.
There are few things so potent as a common danger to bring discordant
elements into working harmony. Several times in the century and a half
of their existence, when the colonies found themselves threatened by
their enemies, they had united, or at least made an effort to unite,
for mutual help. The New England Confederation of 1643 was organized
primarily for protection against the Indians and incidentally against
the Dutch and French. Whenever trouble threatened with any of the
European powers or with the Indians--and that was frequently--a plan
would be broached for getting the colonies to combine their efforts,
sometimes for the immediate necessity and sometimes for a broader
purpose. The best known of these plans was that presented to the Albany
Congress of 1754, which had been called to make effective preparation
for the inevitable struggle with the French and Indians. The beginning
of the troubles which culminated in the final breach with Great Britain
had quickly brought united action in the form of the Stamp Act
Congress of 1765, in the Committees of Correspondence, and then in the
Continental Congress.
It was not merely that the leaven of the Revolution was already working
to bring about the freer interchange of ideas; instinct and experience
led the colonies to united action. The very day that the Continental
Congress appointed a committee to frame a declaration of independence,
another committee was ordered to prepare articles of union. A month
later, as soon as the Declaration of Independence had been adopted, this
second committee, of which John Dickinson of Pennsylvania was chairman,
presented to Congress a report in the form of Articles of Confederation.
Although the outbreak of fighting made some sort of united action
imperative, this plan of union was subjected to debate intermittently
for over sixteen months and even after being adopted by Congress, toward
the end of 1777, it was not ratified by the States until March, 1781,
when the war was already drawing to a close. The exigencies of the hour
forced Congress, without any authorization, to act as if it had been
duly empowered and in general to proceed as if the Confederation had
been formed.
Benjamin Franklin was an enthusiast for union. It was he who had
submitted the plan of union to the Albany Congress in 1754, which with
modifications was recommended by that congress for adoption. It provided
for a Grand Council of representatives chosen by the legislature of
each colony, the members to be proportioned to the contribution of
that colony to the American military service. In matters concerning the
colonies as a whole, especially in Indian affairs, the Grand Council was
to be given extensive powers of legislation and taxation. The executive
was to be a President or Governor-General, appointed and paid by the
Crown, with the right of nominating all military officers, and with a
veto upon all acts of the Grand Council. The project was far in advance
of the times and ultimately failed of acceptance, but in 1775, with the
beginning of the troubles with Great Britain, Franklin took his Albany
plan and, after modifying it in accordance with the experience of
twenty years, submitted it to the Continental Congress as a new plan of
government under which the colonies might unite.
Franklin's plan of 1775 seems to have attracted little attention in
America, and possibly it was not generally known; but much was made of
it abroad, where it soon became public, probably in the same way that
other Franklin papers came out. It seems to have been his practice to
make, with his own hand, several copies of such a document, which he
would send to his friends with the statement that as the document in
question was confidential they might not otherwise see a copy of it. Of
course the inevitable happened, and such documents found their way into
print to the apparent surprise and dismay of the author. Incidentally
this practice caused confusion in later years, because each possessor of
such a document would claim that he had the original. Whatever may have
been the procedure in this particular case, it is fairly evident that
Dickinson's committee took Franklin's plan of 1775 as the starting
point of its work, and after revision submitted it to Congress as their
report; for some of the most important features of the Articles of
Confederation are to be found, sometimes word for word, in Franklin's
draft.
This explanation of the origin of the Articles of Confederation is
helpful and perhaps essential in understanding the form of government
established, because that government in its main features had been
devised for an entirely different condition of affairs, when a strong,
centralized government would not have been accepted even if it had
been wanted. It provided for a "league of friendship," with the primary
purpose of considering preparation for action rather than of taking the
initiative. Furthermore, the final stages of drafting the Articles of
Confederation had occurred at the outbreak of the war, when the people
of the various States were showing a disposition to follow readily
suggestions that came from those whom they could trust and when they
seemed to be willing to submit without compulsion to orders from the
same source. These circumstances, quite as much as the inexperience of
Congress and the jealousy of the States, account for the inefficient
form of government which was devised; and inefficient the Confederation
certainly was. The only organ of government was a Congress in which
every State was entitled to one vote and was represented by a delegation
whose members were appointed annually as the legislature of the State
might direct, whose expenses were paid by the State, and who were
subject to recall. In other words, it was a council of States whose
representatives had little incentive to independence of action.
Extensive powers were granted to this Congress "of determining on peace
and war, ... of entering into treaties and alliances," of maintaining an
army and a navy, of establishing post offices, of coining money, and
of making requisitions upon the States for their respective share of
expenses "incurred for the common defence or general welfare." But none
of these powers could be exercised without the consent of nine States,
which was equivalent to requiring a two-thirds vote, and even when such
a vote had been obtained and a decision had been reached, there
was nothing to compel the individual States to obey beyond the mere
declaration in the Articles of Confederation that, "Every State shall
abide by the determinations of the United States in Congress assembled."
No executive was provided for except that Congress was authorized "to
appoint such other committees and civil officers as may be necessary
for managing the general affairs of the United States under their
direction." In judicial matters, Congress was to serve as "the last
resort on appeal in all disputes and differences" between States; and
Congress might establish courts for the trial of piracy and felonies
committed on the high seas and for determining appeals in cases of prize
capture.
The plan of a government was there but it lacked any driving force.
Congress might declare war but the States might decline to participate
in it; Congress might enter into treaties but it could not make the
States live up to them; Congress might borrow money but it could not be
sure of repaying it; and Congress might decide disputes without being
able to make the parties accept the decision. The pressure of necessity
might keep the States together for a time, yet there is no disguising
the fact that the Articles of Confederation formed nothing more than a
gentlemen's agreement.
CHAPTER IV THE NORTHWEST ORDINANCE
The population of the United States was like a body of water that was
being steadily enlarged by internal springs and external tributaries. It
was augmented both from within and from without, from natural increase
and from immigration. It had spread over the whole coast from Maine to
Georgia and slowly back into the interior, at first along the lines of
river communication and then gradually filling up the spaces between
until the larger part of the available land east of the Alleghany
Mountains was settled. There the stream was checked as if dammed by the
mountain barrier, but the population was trickling through wherever it
could find an opening, slowly wearing channels, until finally, when the
obstacles were overcome, it broke through with a rush.
Twenty years before the Revolution the expanding population had reached
the mountains and was ready to go beyond. The difficulty of crossing the
mountains was not insuperable, but the French and Indian War, followed
by Pontiac's Conspiracy, made outlying frontier settlement dangerous if
not impossible. The arbitrary restriction of western settlement by the
Proclamation of 1763 did not stop the more adventurous but did hold back
the mass of the population until near the time of the Revolution, when
a few bands of settlers moved into Kentucky and Tennessee and rendered
important but inconspicuous service in the fighting. But so long as
the title to that territory was in doubt no considerable body of people
would move into it, and it was not until the Treaty of Peace in 1783
determined that the western country as far as the Mississippi River was
to belong to the United States that the dammed-up population broke over
the mountains in a veritable flood.
The western country and its people presented no easy problem to the
United States: how to hold those people when the pull was strong to draw
them from the Union; how to govern citizens so widely separated from the
older communities; and, of most immediate importance, how to hold the
land itself. It was, indeed, the question of the ownership of the land
beyond the mountains which delayed the ratification of the Articles of
Confederation. Some of the States, by right of their colonial charter
grants "from sea to sea," were claiming large parts of the western
region. Other States, whose boundaries were fixed, could put forward
no such claims; and, as they were therefore limited in their area
of expansion, they were fearful lest in the future they should be
overbalanced by those States which might obtain extensive property in
the West. It was maintained that the Proclamation of 1763 had changed
this western territory into "Crown lands," and as, by the Treaty of
Peace, the title had passed to the United States, the non-claimant
States had demanded in self-defense that the western land should belong
to the country as a whole and not to the individual States. Rhode
Island, Maryland, and Delaware were most seriously affected, and they
were insistent upon this point. Rhode Island and at length Delaware gave
in, so that by February, 1779, Maryland alone held out. In May of
that year the instructions of Maryland to her delegates were read in
Congress, positively forbidding them to ratify the plan of union unless
they should receive definite assurances that the western country would
become the common property of the United States. As the consent of
all of the Thirteen States was necessary to the establishment of the
Confederation, this refusal of Maryland brought matters to a crisis.
The question was eagerly discussed, and early in 1780 the deadlock was
broken by the action of New York in authorizing her representatives to
cede her entire claim in western lands to the United States.
It matters little that the claim of New York was not as good as that
of some of the other States, especially that of Virginia. The whole
situation was changed. It was no longer necessary for Maryland to
defend her position; but the claimant States were compelled to justify
themselves before the country for not following New York's example.
Congress wisely refrained from any assertion of jurisdiction, and only
urgently recommended that States having claims to western lands should
cede them in order that the one obstacle to the final ratification of
the Articles of Confederation might be removed.
Without much question Virginia's claim was the strongest; but the
pressure was too great even for her, and she finally yielded, ceding to
the United States, upon certain conditions, all her lands northwest of
the Ohio River. Then the Maryland delegates were empowered to ratify the
Articles of Confederation. This was early in 1781, and in a very short
time the other States had followed the example of New York and Virginia.
Certain of the conditions imposed by Virginia were not acceptable to
Congress, and three years later, upon specific request, that State
withdrew the objectionable conditions and made the cession absolute.
The territory thus ceded, north and west of the Ohio River, constituted
the public domain. Its boundaries were somewhat indefinite, but
subsequent surveys confirmed the rough estimate that it contained from
one to two hundred millions of acres. It was supposed to be worth, on
the average, about a dollar an acre, which would make this property an
asset sufficient to meet the debts of the war and to leave a balance
for the running expenses of the Government. It thereby became one of the
strong bonds holding the Union together.
"Land!" was the first cry of the storm-tossed mariners of Columbus. For
three centuries the leading fact of American history has been that soon
after 1600 a body of Europeans, mostly Englishmen, settled on the edge
of the greatest piece of unoccupied agricultural land in the temperate
zone, and proceeded to subdue it to the uses of man. For three centuries
the chief task of American mankind has been to go up westward against
the land and to possess it. Our wars, our independence, our state
building, our political democracy, our plasticity with respect to
immigration, our mobility of thought, our ardor of initiative, our
mildness and our prosperity, all are but incidents or products of this
prime historical fact. ¹
¹ Lecture by J. Franklin Jameson before the Trustees of the Carnegie
Institution, at Washington, in 1912, printed in the History Teacher's
Magazine, vol. iv, 1913, p. 5.
It is seldom that one's attention is so caught and held as by the
happy suggestion that American interest in land--or rather interest
in American land--began with the discovery of the continent. Even
a momentary consideration of the subject, however, is sufficient
to indicate how important was the desire for land as a motive of
colonization. The foundation of European governmental and social
organizations had been laid in feudalism--a system of landholding and
service. And although European states might have lost their original
feudal character, and although new classes had arisen, land-holding
still remained the basis of social distinction.
One can readily imagine that America would be considered as El Dorado,
where one of the rarest commodities as well as one of the most precious
possessions was found in almost unlimited quantities and could be had
for the asking. It is no wonder that family estates were sought in
America and that to the lower classes it seemed as if a heaven were
opening on earth. Even though available land appeared to be almost
unlimited in quantity and easy to acquire, it was a possession that was
generally increasing in value. Of course wasteful methods of farming
wore out some lands, especially in the South; but, taking it by and
large throughout the country, with time and increasing density of
population the value of the land was increasing. The acquisition of
land was a matter of investment or at least of speculation. In fact, the
purchase of land was one of the favorite get-rich-quick schemes of the
time. George Washington was not the only man who invested largely in
western lands. A list of those who did would read like a political
or social directory of the time. Patrick Henry, James Wilson, Robert
Morris, Gouverneur Morris, Chancellor Kent, Henry Knox, and James Monroe
were among them. ¹
¹ Not all the speculators were able to keep what they acquired. Fifteen
million acres of land in Kentucky were offered for sale in 1800 for
non-payment of taxes. Channing, History of the United States, vol. iv,
p. 91.
It is therefore easy to understand why so much importance attached to
the claims of the several States and to the cession of that western land
by them to the United States. But something more was necessary. If
the land was to attain anything like its real value, settlers must be
induced to occupy it. Of course it was possible to let the people go out
as they pleased and take up land, and to let the Government collect
from them as might be possible at a fixed rate. But experience during
colonial days had shown the weakness of such a method, and Congress was
apparently determined to keep under its own control the region which
it now possessed, to provide for orderly sale, and to permit settlement
only so far as it might not endanger the national interests. The method
of land sales and the question of government for the western country
were recognized as different aspects of the same problem. The Virginia
offer of cession forced the necessity of a decision, and no sooner
was the Virginia offer framed in an acceptable form, in 1783, than two
committees were appointed by Congress to report upon these two questions
of land sales and of government.
Thomas Jefferson was made chairman of both these committees. He was then
forty years old and one of the most remarkable men in the country. Born
on the frontier--his father from the upper middle class, his mother "a
Randolph"--he had been trained to an outdoor life; but he was also
a prodigy in his studies and entered William and Mary College with
advanced standing at the age of eighteen. Many stories are told of his
precocity and ability, all of which tend to forecast the later man of
catholic tastes, omnivorous interest, and extensive but superficial
knowledge; he was a strange combination of natural aristocrat and
theoretical democrat, of philosopher and practical politician. After
having been a student in the law office of George Wythe, and being
a friend of Patrick Henry, Jefferson early espoused the cause of
the Revolution, and it was his hand that drafted the Declaration
of Independence. He then resigned from Congress to assist in the
organization of government in his own State. For two years and a half he
served in the Virginia Assembly and brought about the repeal of the
law of entailment, the abolition of primogeniture, the recognition
of freedom of conscience, and the encouragement of education. He was
Governor of Virginia for two years and then, having declined reëlection,
returned to Congress in 1783. There, among his other accomplishments,
as chairman of the committee, he reported the Treaty of Peace and, as
chairman of another committee, devised and persuaded Congress to adopt a
national system of coinage which in its essentials is still in use.
It is easy to criticize Jefferson and to pick flaws in the things that
he said as well as in the things that he did, but practically every
one admits that he was closely in touch with the course of events
and understood the temper of his contemporaries. In this period of
transition from the old order to the new, he seems to have expressed the
genius of American institutions better than almost any other man of his
generation. He possessed a quality that enabled him, in the Declaration
of Independence, to give voice to the hopes and aspirations of a rising
nationality and that enabled him in his own State to bring about so many
reforms.
Just how much actual influence Thomas Jefferson had in the framing
of the American land policy is not clear. Although the draft of the
committee report in 1784 is in Jefferson's handwriting, it is altogether
probable that more credit is to be given to Thomas Hutchins, the
Geographer of the United States, and to William Grayson of Virginia,
especially for the final form which the measure took; for Jefferson
retired from the chairmanship and had already gone to Europe when the
Land Ordinance was adopted by Congress in 1785. This ordinance has been
superseded by later enactments, to which references are usually made;
but the original ordinance is one of the great pieces of American
legislation, for it contained the fundamentals of the American land
system which, with the modifications experience has introduced, has
proved to be permanently workable and which has been envied and in
several instances copied by other countries. Like almost all successful
institutions of that sort, the Land Ordinance of 1785 was not an
immediate creation but was a development out of former practices and
customs and was in the nature of a compromise. Its essential features
were the method of survey and the process for the sale of land. New
England, with its town system, had in the course of its expansion been
accustomed to proceed in an orderly method but on a relatively small
scale. The South, on the other hand, had granted lands on a larger scale
and had permitted individual selection in a haphazard manner. The plan
which Congress adopted was that of the New England survey with the
Southern method of extensive holdings. The system is repellent in its
rectangular orderliness, but it made the process of recording titles
easy and complete, and it was capable of indefinite expansion. These
were matters of cardinal importance, for in the course of one hundred
and forty years the United States was to have under its control nearly
two thousand million acres of land.
The primary feature of the land policy was the orderly survey in advance
of sale. In the next place the township was taken as the unit, and its
size was fixed at six miles square. Provision was then made for the sale
of townships alternately entire and by sections of one mile square, or
640 acres each. In every township a section was reserved for educational
purposes; that is, the land was to be disposed of and the proceeds used
for the development of public schools in that region. And, finally, the
United States reserved four sections in the center of each township to
be disposed of at a later time. It was expected that a great increase
in the value of the land would result, and it was proposed that the
Government should reap a part of the profits.
It is evident that the primary purpose of the public land policy as
first developed was to acquire revenue for the Government; but it
was also evident that there was a distinct purpose of encouraging
settlement. The two were not incompatible, but the greater interest of
the Government was in obtaining a return for the property.
The other committee of which Jefferson was chairman made its report of a
plan for the government of the western territory upon the very day that
the Virginia cession was finally accepted, March 1, 1784; and with some
important modifications Jefferson's ordinance, or the Ordinance of
1784 as it was commonly called, was ultimately adopted. In this case
Jefferson rendered a service similar to that of framing the Declaration
of Independence. His plan was somewhat theoretical and visionary,
but largely practical, and it was constructive work of a high order,
displaying not so much originality as sympathetic appreciation of what
had already been done and an instinctive forecast of future development.
Jefferson seemed to be able to gather up ideas, some conscious and some
latent in men's minds, and to express them in a form that was generally
acceptable.
It is interesting to find in the Articles of Confederation (Article
XI) that, "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." The
real importance of this article lay in the suggestion of an enlargement
of the Confederation. The Confederation was never intended to be a union
of only thirteen States. Before the cession of their western claims it
seemed to be inevitable that some of the States should be broken up into
several units. At the very time that the formation of the Confederation
was under discussion Vermont issued a declaration of independence from
New York and New Hampshire, with the expectation of being admitted into
the Union. It was impolitic to recognize the appeal at that time, but
it seems to have been generally understood that sooner or later Vermont
would come in as a full-fledged State.
It might have been a revolutionary suggestion by Maryland, when the
cession of western lands was under discussion, that Congress should have
sole power to fix the western boundaries of the States, but her further
proposal was not even regarded as radical, that Congress should "lay
out the land beyond the boundaries so ascertained into separate and
independent states." It seems to have been taken as a matter of course
in the procedure of Congress and was accepted by the States. But the
idea was one thing; its carrying out was quite another. Here was a great
extent of western territory which would be valuable only as it could
be sold to prospective settlers. One of the first things these settlers
would demand was protection--protection against the Indians, possibly
also against the British and the Spanish, and protection in their
ordinary civil life. The former was a detail of military organization
and was in due time provided by the establishment of military forts and
garrisons; the latter was the problem which Jefferson's committee was
attempting to solve.
The Ordinance of 1784 disregarded the natural physical features of the
western country and, by degrees of latitude and meridians of longitude,
arbitrarily divided the public domain into rectangular districts, to the
first of which the following names were applied: Sylvania, Michigania,
Cherronesus, Assenisipia, Metropotamia, Illinoia, Saratoga, Washington,
Polypotamia, Pelisipia. The amusement which this absurd and thoroughly
Jeffersonian nomenclature is bound to cause ought not to detract from
the really important features of the Ordinance. In each of the districts
into which the country was divided the settlers might be authorized by
Congress, for the purpose of establishing a temporary government, to
adopt the constitution and laws of any one of the original States. When
any such area should have twenty thousand free inhabitants it might
receive authority from Congress to establish a permanent constitution
and government and should be entitled to a representative in Congress
with the right of debating but not of voting. And finally, when the
inhabitants of any one of these districts should equal in number those
of the least populous of the thirteen original States, their delegates
should be admitted into Congress on an equal footing.
Jefferson's ordinance, though adopted, was never put into operation.
Various explanations have been offered for this failure to give it a
fair trial. It has been said that Jefferson himself was to blame. In the
original draft of his ordinance Jefferson had provided for the abolition
of slavery in the new States after the year 1800, and when
Congress refused to accept this clause Jefferson, in a manner quite
characteristic, seemed to lose all interest in the plan. There were,
however, other objections, for there were those who felt that it was
somewhat indefinite to promise admission into the Confederation of
certain sections of the country as soon as their population should equal
in number that of the least populous of the original States. If the
original States should increase in population to any extent, the new
States might never be admitted. But on the other hand, if from any cause
the population of one of the smaller States should suddenly decrease,
might not the resulting influx of new States prove dangerous?
But the real reason why the ordinance remained a dead letter was that,
while it fixed the limits within which local governments might act,
it left the creation of those governments wholly to the future. At
Vincennes, for example, the ordinance made no change in the political
habits of the people. "The local government bowled along merrily under
this system. There was the greatest abundance of government, for the
more the United States neglected them the more authority their officials
assumed." ¹ Nor could the ordinance operate until settlers became
numerous. It was partly, indeed, to hasten settlement that the Ordinance
of 1785 for the survey and sale of the public lands was passed. ²
¹ Jacob Piat Dunn, Jr., Indiana: A Redemption from Slavery, 1888.
² Although the machinery was set in motion, by the appointment of men
and the beginning of work, it was not until 1789 that the survey of the
first seven ranges of townships was completed and the land offered for
sale.
In the meantime efforts were being made by Congress to improve the
unsatisfactory ordinance for the government of the West. Committees were
appointed, reports were made, and at intervals of weeks or months the
subject was considered. Some amendments were actually adopted, but
Congress, notoriously inefficient, hesitated to undertake a fundamental
revision of the ordinance. Then, suddenly, in July, 1787, after a brief
period of adjournment, Congress took up this subject and within a week
adopted the now famous Ordinance of 1787.
The stimulus which aroused Congress to activity seems to have come from
the Ohio Company. From the very beginning of the public domain there
was a strong sentiment in favor of using western land for settlement by
Revolutionary soldiers. Some of these lands had been offered as bounties
to encourage enlistment, and after the war the project of soldiers'
settlement in the West was vigorously agitated. The Ohio Company of
Associates was made up of veterans of the Revolution, who were looking
for homes in the West, and of other persons who were willing to support
a worthy cause by a subscription which might turn out to be a good
investment. The company wished to buy land in the West, and Congress had
land which it wished to sell. Under such circumstances it was easy to
strike a bargain. The land, as we have seen, was roughly estimated at
one dollar an acre; but, as the company wished to purchase a million
acres, it demanded and obtained wholesale rates of two-thirds of the
usual price. It also obtained the privilege of paying at least a portion
in certificates of Revolutionary indebtedness, some of which were worth
about twelve and a half cents on the dollar. Only a little calculation
is required to show that a large quantity of land was therefore sold at
about eight or nine cents an acre. It was in connection with this land
sale that the Ordinance of 1787 was adopted.
The promoter of this enterprise undertaken by the Ohio Company was
Manasseh Cutler of Ipswich, Massachusetts, a clergyman by profession who
had served as a chaplain in the Revolutionary War. But his interests and
activities extended far beyond the bounds of his profession. When the
people of his parish were without proper medical advice he applied
himself to the study and practice of medicine. At about the same time
he took up the study of botany, and because of his describing several
hundred species of plants he is regarded as the pioneer botanist of New
England. His next interest seems to have grown out of his Revolutionary
associations, for it centered in this project for settlement of the
West, and he was appointed the agent of the Ohio Company. It was in this
capacity that he had come to New York and made the bargain with Congress
which has just been described. Cutler must have been a good lobbyist,
for Congress was not an efficient body, and unremitting labor, as well
as diplomacy, was required for so large and important a matter. Two
things indicate his method of procedure. In the first place he found
it politic to drop his own candidate for the governorship of the new
territory and to endorse General Arthur St. Clair, then President of
Congress. And in the next place he accepted the suggestion of Colonel
William Duer for the formation of another company, known as the Scioto
Associates, to purchase five million acres of land on similar terms,
"but that it should be kept a profound secret." It was not an accident
that Colonel Duer was Secretary of the Board of the Treasury through
whom these purchases were made, nor that associated with him in this
speculation were "a number of the principal characters in the city."
These land deals were completed afterwards, but there is little doubt
that there was a direct connection between them and the adoption of the
ordinance of government.
The Ordinance of 1787 was so successful in its working and its renown
became so great that claims of authorship, even for separate articles,
have been filed in the name of almost every person who had the slightest
excuse for being considered. Thousands of pages have been written in
eulogy and in dispute, to the helpful clearing up of some points and to
the obscuring of others. But the authorship of this or of that clause is
of much less importance than the scope of the document as a working plan
of government. As such the Ordinance of 1787 owes much to Jefferson's
Ordinance of 1784. Under the new ordinance a governor and three judges
were to be appointed who, along with their other functions, were to
select such laws as they thought best from the statute books of all the
States. The second stage in self-government would be reached when the
population contained five thousand free men of age; then the people were
to have a representative legislature with the usual privilege of
making their own laws. Provision was made for dividing the whole region
northwest of the Ohio River into three or four or five districts and the
final stage of government was reached when any one of these districts
had sixty thousand free inhabitants, for it might then establish its own
constitution and government and be admitted into the Union on an equal
footing with the original States.
The last-named provision for admission into the Union, being in the
nature of a promise for the future, was not included in the body of
the document providing for the government, but was contained in certain
"articles of compact, between the original States and the people and
States in the said territory, [which should] forever remain unalterable,
unless by common consent." These articles of compact were in general
similar to the bills of rights in State Constitutions; but one of them
found no parallel in any State Constitution. Article VI reads:
"There shall be neither slavery nor involuntary servitude in the said
territory, otherwise than in the punishment of crimes, whereof the party
shall have been duly convicted." This has been hailed as a farsighted,
humanitarian measure, and it is quite true that many of the leading men,
in the South as well as in the North, were looking forward to the time
when slavery would be abolished. But the motives predominating at the
time were probably more nearly represented by Grayson, who wrote to
James Monroe, three weeks after the ordinance was passed: "The clause
respecting slavery was agreed to by the southern members for the purpose
of preventing tobacco and indigo from being made on the northwest side
of the Ohio, as well as for several other political reasons."
It is over one hundred and forty years since the Ordinance of 1787 was
adopted, during which period more than thirty territories of the United
States have been organized, and there has never been a time when one or
more territories were not under Congressional supervision, so that the
process of legislative control has been continuous. Changes have been
made from time to time in order to adapt the territorial government to
changed conditions, but for fifty years the Ordinance of 1787 actually
remained in operation, and even twenty years later it was specifically
referred to by statute. The principles of territorial government today
are identical with those of 1787, and those principles comprise the
largest measure of local self-government compatible with national
control, a gradual extension of self-government to the people of a
territory, and finally complete statehood and admission into the Union
on a footing of equality with the other States.
In 1825, when the military occupation of Oregon was suggested in
Congress, Senator Dickerson of New Jersey objected, saying, "We have not
adopted a system of colonization and it is to be hoped we never shall."
Yet that is just what America has always had. Not only were the first
settlers on the Atlantic coast colonists from Europe; but the men who
went to the frontier were also colonists from the Atlantic seaboard. And
the men who settled the States in the West were colonists from the older
communities. The Americans had so recently asserted their independence
that they regarded the name of colony as not merely indicating
dependence but as implying something of inferiority and even of
reproach. And when the American colonial system was being formulated in
1783-87 the word "Colony" was not used. The country under consideration
was the region west of the Alleghany Mountains and in particular the
territory north and west of the Ohio River and, being so referred to in
the documents, the word "Territory" became the term applied to all the
colonies.
The Northwest Territory increased so rapidly in population that in 1800
it was divided into two districts, and in 1802 the eastern part was
admitted into the Union as the State of Ohio. The rest of the territory
was divided in 1805 and again in 1809; Indiana was admitted as a State
in 1816 and Illinois in 1818. So the process has gone on. There were
thirteen original States and six more have become members of the Union
without having been through the status of territories, making nineteen
in all; while twenty-nine States have developed from the colonial
stage. The incorporation of the colonies into the Union is not merely a
political fact; the inhabitants of the colonies become an integral part
of the parent nation and in turn become the progenitors of new colonies.
If such a process be long continued, the colonies will eventually
outnumber the parent States, and the colonists will outnumber the
citizens of the original States and will themselves become the nation.
Such has been the history of the United States and its people. By 1850,
indeed, one-half of the population of the United States was living
west of the Alleghany Mountains, and at the present time approximately
seventy per cent are to be found in the West.
The importance of the Ordinance of 1787 was hardly overstated by Webster
in his famous debate with Hayne when he said: "We are accustomed ...
to praise the lawgivers of antiquity; we help to perpetuate the fame of
Solon and Lycurgus; but I doubt whether one single law of any lawgiver,
ancient or modern, has produced effects of more distinct, marked and
lasting character than the Ordinance of 1787." While improved means
of communication and many other material ties have served to hold the
States of the Union together, the political bond was supplied by the
Ordinance of 1787, which inaugurated the American colonial system.
CHAPTER V DARKNESS BEFORE DAWN
John Fiske summed up the prevailing impression of the government of
the Confederation in the title to his volume, The Critical Period of
American History. "The period of five years," says Fiske, "following
the peace of 1783 was the most critical moment in all the history of the
American people. The dangers from which we were saved in 1788 were even
greater than were the dangers from which we were saved in 1865." Perhaps
the plight of the Confederation was not so desperate as he would have
us believe, but it was desperate enough. Two incidents occurring between
the signing of the preliminary terms of peace and the definitive
treaty reveal the danger in which the country stood. The main body
of continental troops made up of militiamen and short-term
volunteers--always prone to mutinous conduct--was collected at Newburg
on the Hudson, watching the British in New York. Word might come at any
day that the treaty had been signed, and the army did not wish to be
disbanded until certain matters had been settled--primarily the question
of their pay. The officers had been promised half-pay for life, but
nothing definite had been done toward carrying out the promise. The
soldiers had no such hope to encourage them, and their pay was sadly in
arrears. In December, 1782, the officers at Newburg drew up an address
in behalf of themselves and their men and sent it to Congress. Therein
they made the threat, thinly veiled, of taking matters into their own
hands unless their grievances were redressed.
There is reason to suppose that back of this movement--or at least in
sympathy with it--were some of the strongest men in civil as in military
life, who, while not fomenting insurrection, were willing to bring
pressure to bear on Congress and the States. Congress was unable
or unwilling to act, and in March, 1783, a second paper, this time
anonymous, was circulated urging the men not to disband until the
question of pay had been settled and recommending a meeting of officers
on the following day. If Washington's influence was not counted upon,
it was at least hoped that he would not interfere; but as soon as he
learned of what had been done he issued general orders calling for
a meeting of officers on a later day, thus superseding the
irregular meeting that had been suggested. On the day appointed the
Commander-in-Chief appeared and spoke with so much warmth and feeling
that his "little address ... drew tears from many of the officers." He
inveighed against the unsigned paper and against the methods that were
talked of, for they would mean the disgrace of the army, and he appealed
to the patriotism of the officers, promising his best efforts in
their behalf. The effect was so strong that, when Washington withdrew,
resolutions were adopted unanimously expressing their loyalty and their
faith in the justice of Congress and denouncing the anonymous circular.
The general apprehension was not diminished by another incident in June.
Some eighty troops of the Pennsylvania line in camp at Lancaster marched
to Philadelphia and drew up before the State House, where Congress was
sitting. Their purpose was to demand better treatment and the payment of
what was owed to them. So far it was an orderly demonstration, although
not in keeping with military regulations; in fact the men had broken
away from camp under the lead of noncommissioned officers. But when
they had been stimulated by drink the disorder became serious. The
humiliating feature of the situation was that Congress could do nothing,
even in self-protection. They appealed to the Pennsylvania authorities
and, when assistance was refused, the members of Congress in alarm fled
in the night and three days later gathered in the college building in
Princeton.
Congress became the butt of many jokes, but men could not hide the
chagrin they felt that their Government was so weak. The feeling
deepened into shame when the helplessness of Congress was displayed
before the world. Weeks and even months passed before a quorum could be
obtained to ratify the treaty recognizing the independence of the United
States and establishing peace. Even after the treaty was supposed to
be in force the States disregarded its provisions and Congress could do
nothing more than utter ineffective protests. But, most humiliating of
all, the British maintained their military posts within the northwestern
territory ceded to the United States, and Congress could only request
them to retire. The Americans' pride was hurt and their pockets were
touched as well, for an important issue at stake was the control of the
lucrative fur trade. So resentment grew into anger; but the British held
on, and the United States was powerless to make them withdraw. To make
matters worse, the Confederation, for want of power to levy taxes, was
facing bankruptcy, and Congress was unable to devise ways and means to
avert a crisis.
The Second Continental Congress had come into existence in 1775. It was
made up of delegations from the various colonies, appointed in more or
less irregular ways, and had no more authority than it might assume and
the various colonies were willing to concede; yet it was the central
body under which the Revolution had been inaugurated and carried through
to a successful conclusion. Had this Congress grappled firmly with the
financial problem and forced through a system of direct taxation, the
subsequent woes of the Confederation might have been mitigated
and perhaps averted. In their enthusiasm over the Declaration of
Independence the people--by whom is meant the articulate class
consisting largely of the governing and commercial elements--would
probably have accepted such a usurpation of authority. But with their
lack of experience it is not surprising that the delegates to Congress
did not appreciate the necessity of such radical action and so were
unwilling to take the responsibility for it. They counted upon the
goodwill and support of their constituents, which simmered down to a
reliance upon voluntary grants from the States in response to appeals
from Congress. These desultory grants proved to be so unsatisfactory
that, in 1781, even before the Articles of Confederation had been
ratified, Congress asked for a grant of additional power to levy a duty
of five per cent ad valorem upon all goods imported into the United
States, the revenue from which was to be applied to the discharge of
the principal and interest on debts "contracted ... for supporting
the present war." Twelve States agreed, but Rhode Island, after some
hesitation, finally rejected the measure in November, 1782.
The Articles of Confederation authorized a system of requisitions
apportioned among the "several States in proportion to the value of all
land within each State." But, as there was no power vested in Congress
to force the States to comply, the situation was in no way improved when
the Articles were ratified and put into operation. In fact, matters grew
worse as Congress itself steadily lost ground in popular estimation,
until it had become little better than a laughing-stock, and with the
ending of the war its requests were more honored in the breach than in
the observance. In 1782 Congress asked for $8,000,000 and the following
year for $2,000,000 more, but by the end of 1783 less than $1,500,000
had been paid in.
In the same year, 1783, Congress made another attempt to remedy the
financial situation by proposing the so-called Revenue Amendment,
according to which a specific duty was to be laid upon certain articles
and a general duty of five per cent ad valorem upon all other goods,
to be in operation for twenty-five years. In addition to this it was
proposed that for the same period of time $1,500,000 annually should
be raised by requisitions, and the definite amount for each State was
specified until "the rule of the Confederation" could be carried into
practice. It was then proposed that the article providing for the
proportion of requisitions should be changed so as to be based not upon
land values but upon population, in estimating which slaves should be
counted at three-fifths of their number. In the course of three years
thereafter only two States accepted the proposals in full, seven agreed
to them in part, and four failed to act at all. Congress in despair then
made a further representation to the States upon the critical condition
of the finances and accompanied this with an urgent appeal, which
resulted in all the States except New York agreeing to the proposed
impost. But the refusal of one State was sufficient to block the
whole measure, and there was no further hope for a treasury that was
practically bankrupt. In five years Congress had received less than two
and one-half million dollars from requisitions, and for the fourteen
months ending January 1, 1786, the income was at the rate of less
than $375,000 a year, which was not enough, as a committee of Congress
reported, "for the bare maintenance of the Federal Government on the
most economical establishment and in time of profound peace." In fact,
the income was not sufficient even to meet the interest on the foreign
debt.
In the absence of other means of obtaining funds Congress had resorted
early to the unfortunate expedient of issuing paper money based solely
on the good faith of the States to redeem it. This fiat money held its
value for some little time; then it began to shrink and, once started
on the downward path, its fall was rapid. Congress tried to meet the
emergency by issuing paper in increasing quantities until the inevitable
happened: the paper money ceased to have any value and practically
disappeared from circulation. Jefferson said that by the end of 1781
one thousand dollars of Continental scrip was worth about one dollar in
specie.
The States had already issued paper money of their own, and their
experience ought to have taught them a lesson, but with the coming of
hard times after the war, they once more proposed by issuing paper to
relieve the "scarcity of money" which was commonly supposed to be one
of the principal evils of the day. In 1785 and 1786 paper money parties
appeared in almost all the States. In some of these the conservative
element was strong enough to prevent action, but in others the movement
had to run its fatal course. The futility of what they were doing should
have been revealed to all concerned by proposals seriously made that the
paper money which was issued should depreciate at a regular rate each
year until it should finally disappear.
The experience of Rhode Island is not to be regarded as typical of
what was happening throughout the country but is, indeed, rather to be
considered as exceptional. Yet it attracted widespread attention and
revealed to anxious observers the dangers to which the country was
subject if the existing condition of affairs were allowed to continue.
The machinery of the State Government was captured by the paper-money
party in the spring election of 1786. The results were disappointing to
the adherents of the paper-money cause, for when the money was issued
depreciation began at once, and those who tried to pay their bills
discovered that a heavy discount was demanded. In response to indignant
demands the legislature of Rhode Island passed an act to force the
acceptance of paper money under penalty and thereupon tradesmen refused
to make any sales at all--some closed their shops, and others tried to
carry on business by exchange of wares. The farmers then retaliated by
refusing to sell their produce to the shopkeepers, and general confusion
and acute distress followed. It was mainly a quarrel between the farmers
and the merchants, but it easily grew into a division between town and
country, and there followed a whole series of town meetings and county
conventions. The old line of cleavage was fairly well represented by the
excommunication of a member of St. John's Episcopal Church of Providence
for tendering bank notes, and the expulsion of a member of the Society
of the Cincinnati for a similar cause.
The contest culminated in the case of Trevett vs. Weeden, 1786, which is
memorable in the judicial annals of the United States. The legislature,
not being satisfied with ordinary methods of enforcement, had provided
for the summary trial of offenders without a jury before a court whose
judges were removable by the Assembly and were therefore supposedly
subservient to its wishes. In the case in question the Superior Court
boldly declared the enforcing act to be unconstitutional, and for their
contumacious behavior the judges were summoned before the legislature.
They escaped punishment, but only one of them was re¨elected to office.
Meanwhile disorders of a more serious sort, which startled the whole
country, occurred in Massachusetts. It is doubtful if a satisfactory
explanation ever will be found, at least one which will be universally
accepted, as to the causes and origin of Shays' Rebellion in 1786. Some
historians maintain that the uprising resulted primarily from a scarcity
of money, from a shortage in the circulating medium; that, while the
eastern counties were keeping up their foreign trade sufficiently at
least to bring in enough metallic currency to relieve the stringency and
could also use various forms of credit, the western counties had no
such remedy. Others are inclined to think that the difficulties of the
farmers in western Massachusetts were caused largely by the return to
normal conditions after the extraordinarily good times between 1776 and
1780, and that it was the discomfort attending the process that drove
them to revolt. Another explanation reminds one of present-day charges
against undue influence of high financial circles, when it is
insinuated and even directly charged that the rebellion was fostered
by conservative interests who were trying to create a public opinion in
favor of a more strongly organized government.
Whatever other causes there may have been, the immediate source of
trouble was the enforced payment of indebtedness, which to a large
extent had been allowed to remain in abeyance during the war. This
postponement of settlement had not been merely for humanitarian reasons;
it would have been the height of folly to collect when the currency was
greatly depreciated. But conditions were supposed to have been restored
to normal with the cessation of hostilities, and creditors were
generally inclined to demand payment. These demands, coinciding with
the heavy taxes, drove the people of western Massachusetts into revolt.
Feeling ran high against lawyers who prosecuted suits for creditors, and
this antagonism was easily transferred to the courts in which the suits
were brought. The rebellion in Massachusetts accordingly took the form
of a demonstration against the courts. A paper was carried from town
to town in the County of Worcester, in which the signers promised to
do their utmost "to prevent the sitting of the Inferior Court of Common
Pleas for the county, or of any other court that should attempt to take
property by distress."
The Massachusetts Legislature adjourned in July, 1786, without remedying
the trouble and also without authorizing an issue of paper money which
the hard-pressed debtors were demanding. In the months following mobs
prevented the courts from sitting in various towns. A special session of
the legislature was then called by the Governor but, when that special
session had adjourned on the 18th of November, it might just as well
have never met. It had attempted to remedy various grievances and had
made concessions to the malcontents, but it had also passed measures to
strengthen the hands of the Governor. This only seemed to inflame the
rioters, and the disorders increased. After the lower courts a move
was made against the State Supreme Court, and plans were laid for a
concerted movement against the cities in the eastern part of the State.
Civil war seemed imminent. The insurgents were led by Daniel Shays, an
officer in the army of the Revolution, and the party of law and order
was represented by Governor James Bowdoin, who raised some four thousand
troops and placed them under the command of General Benjamin Lincoln.
The time of year was unfortunate for the insurgents, especially as
December was unusually cold and there was a heavy snowfall. Shays could
not provide stores and equipment and was unable to maintain discipline.
A threatened attack on Cambridge came to naught for, when preparations
were made to protect the city, the rebels began a disorderly retreat,
and in the intense cold and deep snow they suffered severely, and many
died from exposure. The center of interest then shifted to Springfield,
where the insurgents were attempting to seize the United States arsenal.
The local militia had already repelled the first attacks, and
the appearance of General Lincoln with his troops completed the
demoralization of Shays' army. The insurgents retreated, but Lincoln
pursued relentlessly and broke them up into small bands, which then
wandered about the country preying upon the unfortunate inhabitants.
When spring came, most of them had been subdued or had taken refuge in
the neighboring States.
Shays' Rebellion was fairly easily suppressed, even though it required
the shedding of some blood. But it was the possibility of further
outbreaks that destroyed men's peace of mind. There were similar
disturbances in other States; and there the Massachusetts insurgents
found sympathy, support, and finally a refuge. When the worst was over,
and Governor Bowdoin applied to the neighboring States for help in
capturing the last of the refugees, Rhode Island and Vermont failed to
respond to the extent that might have been expected of them. The danger,
therefore, of the insurrection spreading was a cause of deep concern.
This feeling was increased by the impotence of Congress. The Government
had sufficient excuse for intervention after the attack upon the
national arsenal in Springfield. Congress, indeed, began to raise
troops but did not dare to admit its purpose and offered as a pretext
an expedition against the Northwestern Indians. The rebellion was over
before any assistance could be given. The inefficiency of Congress and
its lack of influence were evident. Like the disorders in Rhode Island,
Shays' Rebellion in Massachusetts helped to bring about a reaction and
strengthened the conservative movement for reform.
These untoward happenings, however, were only symptoms: the causes
of the trouble lay far deeper. This fact was recognized even in Rhode
Island, for at least one of the conventions had passed resolutions
declaring that, in considering the condition of the whole country, what
particularly concerned them was the condition of trade. Paradoxical as
it may seem, the trade and commerce of the country were already on the
upward grade and prosperity was actually returning. But prosperity
is usually a process of slow growth and is seldom recognized by the
community at large until it is well established. Farsighted men forecast
the coming of good times in advance of the rest of the community, and
prosper accordingly. The majority of the people know that prosperity has
come only when it is unmistakably present, and some are not aware of it
until it has begun to go. If that be true in our day, much more was it
true in the eighteenth century, when means of communication were so poor
that it took days for a message to go from Boston to New York and
weeks for news to get from Boston to Charleston. It was a period of
adjustment, and as we look back after the event we can see that the
American people were adapting themselves with remarkable skill to the
new conditions. But that was not so evident to the men who were feeling
the pinch of hard times, and when all the attendant circumstances,
some of which have been described, are taken into account, it is not
surprising that commercial depression should be one of the strongest
influences in, and the immediate occasion of, bringing men to the point
of willingness to attempt some radical changes.
The fact needs to be reiterated that the people of the United States
were largely dependent upon agriculture and other forms of extractive
industry, and that markets for the disposal of their goods were an
absolute necessity. Some of the States, especially New England and
the Middle States, were interested in the carrying trade, but all were
concerned in obtaining markets. On account of jealousy interstate trade
continued a precarious existence and by no means sufficed to dispose of
the surplus products, so that foreign markets were necessary. The people
were especially concerned for the establishment of the old trade with
the West India Islands, which had been the mainstay of their prosperity
in colonial times; and after the British Government, in 1783, restricted
that trade to British vessels, many people in the United States were
attributing hard times to British malignancy. The only action which
seemed possible was to force Great Britain in particular, but other
foreign countries as well, to make such trade agreements as the
prosperity of the United States demanded. The only hope seemed to lie
in a commercial policy of reprisal which would force other countries
to open their markets to American goods. Retaliation was the dominating
idea in the foreign policy of the time. So in 1784 Congress made a new
recommendation to the States, prefacing it with an assertion of the
importance of commerce, saying: "The fortune of every Citizen is
interested in the success thereof; for it is the constant source of
wealth and incentive to industry; and the value of our produce and our
land must ever rise or fall in proportion to the prosperous or adverse
state of trade."
And after declaring that Great Britain had "adopted regulations
destructive of our commerce with her West India Islands," it was further
asserted: "Unless the United States in Congress assembled shall be
vested with powers competent to the protection of commerce, they can
never command reciprocal advantages in trade." It was therefore
proposed to give to Congress for fifteen years the power to prohibit the
importation or exportation of goods at American ports except in vessels
owned by the people of the United States or by the subjects of foreign
governments having treaties of commerce with the United States. This
was simply a request for authorization to adopt navigation acts. But the
individual States were too much concerned with their own interests and
did not or would not appreciate the rights of the other States or the
interests of the Union as a whole. And so the commercial amendment of
1784 suffered the fate of all other amendments proposed to the Articles
of Confederation. In fact only two States accepted it.
It usually happens that some minor occurrence, almost unnoticed at the
time, leads directly to the most important consequences. And an incident
in domestic affairs started the chain of events in the United States
that ended in the reform of the Federal Government. The rivalry and
jealousy among the States had brought matters to such a pass that either
Congress must be vested with adequate powers or the Confederation must
collapse. But the Articles of Confederation provided no remedy, and it
had been found that amendments to that instrument could not be obtained.
It was necessary, therefore, to proceed in some extra-legal fashion.
The Articles of Confederation specifically forbade treaties or alliances
between the States unless approved by Congress. Yet Virginia and
Maryland, in 1785, had come to a working agreement regarding the use
of the Potomac River, which was the boundary line between them.
Commissioners representing both parties had met at Alexandria and soon
adjourned to Mount Vernon, where they not only reached an amicable
settlement of the immediate questions before them but also discussed the
larger subjects of duties and commercial matters in general. When
the Maryland legislature came to act on the report, it proposed that
Pennsylvania and Delaware should be invited to join with them in
formulating a common commercial policy. Virginia then went one step
farther and invited all the other States to send commissioners to a
general trade convention and later announced Annapolis as the place of
meeting and set the time for September, 1786.
This action was unconstitutional and was so recognized, for James
Madison notes that "from the Legislative Journals of Virginia it
appears, that a vote to apply for a sanction of Congress was followed
by a vote against a communication of the Compact to Congress," and he
mentions other similar violations of the central authority. That this
did not attract more attention was probably due to the public interest
being absorbed just at that time by the paper money agitation. Then,
too, the men concerned seem to have been willing to avoid publicity.
Their purposes are well brought out in a letter of Monsieur Louis Otto,
French Chargé d'Affaires, written on October 10, 1786, to the Comte de
Vergennes, Minister for Foreign Affairs, though their motives may be
somewhat misinterpreted.
Although there are no nobles in America, there is a class of men
denominated "gentlemen," who, by reason of their wealth, their talents,
their education, their families, or the offices they hold, aspire to a
preeminence which the people refuse to grant them; and, although many of
these men have betrayed the interests of their order to gain popularity,
there reigns among them a connection so much the more intimate as they
almost all of them dread the efforts of the people to despoil them of
their possessions, and, moreover, they are creditors, and therefore
interested in strengthening the government, and watching over the
execution of the laws.
These men generally pay very heavy taxes, while the small proprietors
escape the vigilance of the collectors. The majority of them being
merchants, it is for their interest to establish the credit of the
United States in Europe on a solid foundation by the exact payment of
debts, and to grant to congress powers extensive enough to compel the
people to contribute for this purpose. The attempt, my lord, has been
vain, by pamphlets and other publications, to spread notions of justice
and integrity, and to deprive the people of a freedom which they have so
misused. By proposing a new organization of the federal government all
minds would have been revolted; circumstances ruinous to the commerce of
America have happily arisen to furnish the reformers with a pretext for
introducing innovations.
They represented to the people that the American name had become
opprobrious among all the nations of Europe; that the flag of the United
States was everywhere exposed to insults and annoyance; the husbandman,
no longer able to export his produce freely, would soon be reduced to
want; it was high time to retaliate, and to convince foreign powers that
the United States would not with impunity suffer such a violation of the
freedom of trade, but that strong measures could be taken only with
the consent of the thirteen states, and that congress, not having the
necessary powers, it was essential to form a general assembly instructed
to present to congress the plan for its adoption, and to point out the
means of carrying it into execution.
The people, generally discontented with the obstacles in the way of
commerce, and scarcely suspecting the secret motives of their opponents,
ardently embraced this measure, and appointed commissioners, who were to
assemble at Annapolis in the beginning of September.
The authors of this proposition had no hope, nor even desire, to see the
success of this assembly of commissioners, which was only intended
to prepare a question much more important than that of commerce. The
measures were so well taken that at the end of September no more than
five states were represented at Annapolis, and the commissioners from
the northern states tarried several days at New York in order to retard
their arrival.
The states which assembled, after having waited nearly three weeks,
separated under the pretext that they were not in sufficient numbers to
enter on business, and, to justify this dissolution, they addressed to
the different legislatures and to congress a report, the translation of
which I have the honor to enclose to you. ¹
¹ Quoted by Bancroft, History of the Formation of the Constitution, vol.
ii, Appendix, pp. 399-400.
Among these "men denominated 'gentlemen'" to whom the French Chargé
d'Affaires alludes, was James Madison of Virginia. He was one of the
younger men, unfitted by temperament and physique to be a soldier, who
yet had found his opportunity in the Revolution. Graduating in 1771
from Princeton, where tradition tells of the part he took in patriotic
demonstrations on the campus--characteristic of students then as now--he
had thrown himself heart and soul into the American cause. He was a
member of the convention to frame the first State Constitution for
Virginia in 1776, and from that time on, because of his ability, he was
an important figure in the political history of his State and of his
country. He was largely responsible for bringing about the conference
between Virginia and Maryland and for the subsequent steps resulting
in the trade convention at Annapolis. And yet Madison seldom took a
conspicuous part, preferring to remain in the background and to
allow others to appear as the leaders. When the Annapolis Convention
assembled, for example, he suffered Alexander Hamilton of New York to
play the leading rôle.
Hamilton was then approaching thirty years of age and was one of the
ablest men in the United States. Though his best work was done in
later years, when he proved himself to be perhaps the most brilliant
of American statesmen, with an extraordinary genius for administrative
organization, the part that he took in the affairs of this period was
important. He was small and slight in person but with an expressive
face, fair complexion, and cheeks of "almost feminine rosiness." The
usual aspect of his countenance was thoughtful and even severe, but in
conversation his face lighted up with a remarkably attractive smile. He
carried himself erectly and with dignity, so that in spite of his small
figure, when he entered a room "it was apparent, from the respectful
attention of the company, that he was a distinguished person." A
contemporary, speaking of the opposite and almost irreconcilable traits
of Hamilton's character, pronounced a bust of him as giving a complete
exposition of his character: "Draw a handkerchief around the mouth of
the bust, and the remnant of the countenance represents fortitude and
intrepidity such as we have often seen in the plates of Roman heroes.
Veil in the same manner the face and leave the mouth and chin only
discernible, and all this fortitude melts and vanishes into almost
feminine softness."
Hamilton was a leading spirit in the Annapolis Trade Convention and
wrote the report that it adopted. Whether or not there is any truth in
the assertion of the French chargé that Hamilton and others thought
it advisable to disguise their purposes, there is no doubt that the
Annapolis Convention was an all-important step in the progress of
reform, and its recommendation was the direct occasion of the calling of
the great convention that framed the Constitution of the United States.
The recommendation of the Annapolis delegates was in the form of a
report to the legislatures of their respective States, in which they
referred to the defects in the Federal Government and called for "a
convention of deputies from the different states for the special purpose
of entering into this investigation and digesting a Plan for supplying
such defects." Philadelphia was suggested as the place of meeting, and
the time was fixed for the second Monday in May of the next year.
Several of the States acted promptly upon this recommendation and in
February, 1787, Congress adopted a resolution accepting the proposal and
calling the convention "for the sole and express purpose of revising
the Articles of Confederation and reporting ... such alterations ... as
shall ... render the Federal Constitution adequate to the exigencies of
Government and the preservation of the Union." Before the time fixed for
the meeting of the Philadelphia Convention, or shortly after that
date, all the States had appointed deputies with the exception of New
Hampshire and Rhode Island. New Hampshire was favorably disposed toward
the meeting but, owing to local conditions, failed to act before the
Convention was well under way. Delegates, however, arrived in time to
share in some of the most important proceedings. Rhode Island alone
refused to take part, although a letter signed by some of the prominent
men was sent to the Convention pledging their support.
CHAPTER VI THE FEDERAL CONVENTION
The body of delegates which met in Philadelphia in 1787 was the
most important convention that ever sat in the United States. The
Confederation was a failure, and if the new nation was to be justified
in the eyes of the world, it must show itself capable of effective
union. The members of the Convention realized the significance of the
task before them, which was, as Madison said, "now to decide forever
the fate of Republican government." Gouverneur Morris, with unwonted
seriousness, declared: "The whole human race will be affected by the
proceedings of this Convention." James Wilson spoke with equal gravity:
"After the lapse of six thousand years since the creation of the world
America now presents the first instance of a people assembled to weigh
deliberately and calmly and to decide leisurely and peaceably upon
the form of government by which they will bind themselves and their
posterity."
Not all the men to whom this undertaking was entrusted, and who were
taking themselves and their work so seriously, could pretend to social
distinction, but practically all belonged to the upper ruling class. At
the Indian Queen, a tavern on Fourth Street between Market and Chestnut,
some of the delegates had a hall in which they lived by themselves.
The meetings of the Convention were held in an upper room of the State
House. The sessions were secret; sentries were placed at the door to
keep away all intruders; and the pavement of the street in front of
the building was covered with loose earth so that the noises of passing
traffic should not disturb this august assembly. It is not surprising
that a tradition grew up about the Federal Convention which hedged it
round with a sort of awe and reverence. Even Thomas Jefferson referred
to it as "an assembly of demigods." If we can get away from the glamour
which has been spread over the work of the Fathers of the Constitution
and understand that they were human beings, even as we are, and
influenced by the same motives as other men, it may be possible to
obtain a more faithful impression of what actually took place.
Since representation in the Convention was to be by States, just as it
had been in the Continental Congress, the presence of delegations from
a majority of the States was necessary for organization. It is a
commentary upon the times, upon the difficulties of travel, and upon the
leisurely habits of the people, that the meeting which had been called
for the 14th of May could not begin its work for over ten days. The 25th
of May was stormy, and only twenty-nine delegates were on hand when
the Convention organized. The slender attendance can only partially be
attributed to the weather, for in the following three months and a half
of the Convention, at which fifty-five members were present at one time
or another, the average attendance was only slightly larger than that
of the first day. In such a small body personality counted for much,
in ways that the historian can only surmise. Many compromises of
conflicting interests were reached by informal discussion outside of
the formal sessions. In these small gatherings individual character was
often as decisive as weighty argument.
George Washington was unanimously chosen as the presiding officer of the
Convention. He sat on a raised platform; in a large, carved, high-backed
chair, from which his commanding figure and dignified bearing exerted
a potent influence on the assembly, an influence enhanced by the formal
courtesy and stately intercourse of the times. Washington was the great
man of his day and the members not only respected and admired him; some
of them were actually afraid of him. When he rose to his feet he was
almost the Commander-in-Chief again. There is evidence to show that
his support or disapproval was at times a decisive factor in the
deliberations of the Convention.
Virginia, which had taken a conspicuous part in the calling of the
Convention, was looked to for leadership in the work that was to be
done. James Madison, next to Washington the most important member of
the Virginia delegation, was the very opposite of Washington in many
respects--small and slight in stature, inconspicuous in dress as in
figure, modest and retiring, but with a quick, active mind and wide
knowledge obtained both from experience in public affairs and from
extensive reading. Washington was the man of action; Madison, the
scholar in politics. Madison was the younger by nearly twenty years,
but Washington admired him greatly and gave him the support of his
influence--a matter of no little consequence, for Madison was the
leading expert worker of the Convention in the business of framing the
Constitution. Governor Edmund Randolph, with his tall figure, handsome
face, and dignified manner, made an excellent impression in the position
accorded to him of nominal leader of the Virginia delegation. Among
others from the same State who should be noticed were the famous
lawyers, George Wythe and George Mason.
Among the deputies from Pennsylvania the foremost was James Wilson, the
"Caledonian," who probably stood next in importance in the convention to
Madison and Washington. He had come to America as a young man just
when the troubles with England were beginning and by sheer ability had
attained a position of prominence. Several times a member of Congress, a
signer of the Declaration of Independence, he was now regarded as one of
the ablest lawyers in the United States. A more brilliant member of
the Pennsylvania delegation, and one of the most brilliant of the
Convention, was Gouverneur Morris, who shone by his cleverness and quick
wit as well as by his wonderful command of language. But Morris was
admired more than he was trusted; and, while he supported the efforts
for a strong government, his support was not always as great a help as
might have been expected. A crippled arm and a wooden leg might detract
from his personal appearance, but they could not subdue his spirit and
audacity. ¹
¹ There is a story which illustrates admirably the audacity of Morris
and the austere dignity of Washington. The story runs that Morris
and several members of the Cabinet were spending an evening at the
President's house in Philadelphia, where they were discussing the
absorbing question of the hour, whatever it may have been. "The
President," Morris is said to have related on the following day, "was
standing with his arms behind him--his usual position--his back to the
fire. I started up and spoke, stamping, as I walked up and down, with my
wooden leg; and, as I was certain I had the best of the argument, as
I finished I stalked up to the President, slapped him on the back, and
said. 'Ain't I right, General?' The President did not speak, but the
majesty of the American people was before me. Oh, his look! How I wished
the floor would open and I could descend to the cellar! You know me,"
continued Mr. Morris, "and you know my eye would never quail before
any other mortal."--W. T. Read, Life and Correspondence of George Read
(1870) p. 441.
There were other prominent members of the Pennsylvania delegation, but
none of them took an important part in the Convention, not even the aged
Benjamin Franklin, President of the State. At the age of eighty-one his
powers were failing, and he was so feeble that his colleague Wilson read
his speeches for him. His opinions were respected, but they do not seem
to have carried much weight.
Other noteworthy members of the Convention, though hardly in the first
class, were the handsome and charming Rufus King of Massachusetts,
one of the coming men of the country, and Nathaniel Gorham of the same
State, who was President of Congress--a man of good sense rather than of
great ability, but one whose reputation was high and whose presence was
a distinct asset to the Convention. Then, too, there were the delegates
from South Carolina: John Rutledge, the orator, General Charles
Cotesworth Pinckney of Revolutionary fame, and his cousin, Charles
Pinckney. The last named took a conspicuous part in the proceedings in
Philadelphia but, so far as the outcome was concerned, left his mark on
the Constitution mainly in minor matters and details.
The men who have been named were nearly all supporters of the plan for
a centralized government. On the other side were William Paterson of New
Jersey, who had been Attorney-General of his State for eleven years
and who was respected for his knowledge and ability; John Dickinson
of Delaware, the author of the Farmer's Letters and chairman of
the committee of Congress that had framed the Articles of
Confederation--able, scholarly, and sincere, but nervous, sensitive,
and conscientious to the verge of timidity--whose refusal to sign the
Declaration of Independence had cost him his popularity, though he was
afterward returned to Congress and became president successively
of Delaware and of Pennsylvania; Elbridge Gerry of Massachusetts, a
successful merchant, prominent in politics, and greatly interested
in questions of commerce and finance; and the Connecticut delegates,
forming an unusual trio, Dr. William Samuel Johnson, Roger Sherman, and
Oliver Ellsworth. These men were fearful of establishing too strong a
government and were at one time or another to be found in opposition to
Madison and his supporters. They were not mere obstructionists, however,
and while not constructive in the same way that Madison and Wilson
were, they must be given some credit for the form which the Constitution
finally assumed. Their greatest service was in restraining the tendency
of the majority to overrule the rights of States and in modifying the
desires of individuals for a government that would have been too strong
to work well in practice.
Alexander Hamilton of New York, as one of the ablest members of the
Convention, was expected to take an important part, but he was out of
touch with the views of the majority. He was aristocratic rather than
democratic and, however excellent his ideas may have been, they were too
radical for his fellow delegates and found but little support. He threw
his strength in favor of a strong government and was ready to aid the
movement in whatever way he could. But within his own delegation he was
outvoted by Robert Yates and John Lansing, and before the sessions were
half over he was deprived of a vote by the withdrawal of his colleagues.
Thereupon, finding himself of little service, he went to New York and
returned to Philadelphia only once or twice for a few days at a time,
and finally to sign the completed document. Luther Martin of Maryland
was an able lawyer and the Attorney-General of his State; but he was
supposed to be allied with undesirable interests, and it was said that
he had been sent to the Convention for the purpose of opposing a strong
government. He proved to be a tiresome speaker and his prosiness, when
added to the suspicion attaching to his motives, cost him much of the
influence which he might otherwise have had.
All in all, the delegates to the Federal Convention were a remarkable
body of men. Most of them had played important parts in the drama of
the Revolution; three-fourths of them had served in Congress, and
practically all were persons of note in their respective States and had
held important public positions. They may not have been the "assembly of
demigods" which Jefferson called them, for another contemporary insisted
"that twenty assemblies of equal number might be collected equally
respectable both in point of ability, integrity, and patriotism."
Perhaps it would be safer to regard the Convention as a fairly
representative body, which was of a somewhat higher order than would
be gathered together today, because the social conditions of those
days tended to bring forward men of a better class, and because the
seriousness of the crisis had called out leaders of the highest type.
Two or three days were consumed in organizing the Convention--electing
officers, considering the delegates' credentials, and adopting rules of
procedure; and when these necessary preliminaries had been accomplished
the main business was opened with the presentation by the Virginia
delegation of a series of resolutions providing for radical changes
in the machinery of the Confederation. The principal features were the
organization of a legislature of two houses proportional to population
and with increased powers, the establishment of a separate executive,
and the creation of an independent judiciary. This was in reality
providing for a new government and was probably quite beyond the ideas
of most of the members of the Convention, who had come there under
instructions and with the expectation of revising the Articles of
Confederation. But after the Virginia Plan had been the subject of
discussion for two weeks so that the members had become a little more
accustomed to its proposals, and after minor modifications had been made
in the wording of the resolutions, the Convention was won over to its
support. To check this drift toward radical change the opposition headed
by New Jersey and Connecticut presented the so-called New Jersey
Plan, which was in sharp contrast to the Virginia Resolutions, for it
contemplated only a revision of the Articles of Confederation, but after
a relatively short discussion, the Virginia Plan was adopted by a vote
of seven States against four, with one State divided.
The dividing line between the two parties or groups in the Convention
had quickly manifested itself. It proved to be the same line that had
divided the Congress of the Confederation, the cleavage between the
large States and the small States. The large States were in favor
of representation in both houses of the legislature according to
population, while the small States were opposed to any change which
would deprive them of their equal vote in Congress, and though outvoted,
they were not ready to yield. The Virginia Plan, and subsequently the
New Jersey Plan, had first been considered in committee of the whole,
and the question of "proportional representation," as it was then
called, would accordingly come up again in formal session. Several weeks
had been occupied by the proceedings, so that it was now near the end of
June, and in general the discussions had been conducted with remarkably
good temper. But it was evidently the calm before the storm. And the
issue was finally joined when the question of representation in the two
houses again came before the Convention. The majority of the States on
the 29th of June once more voted in favor of proportional representation
in the lower house. But on the question of the upper house, owing to a
peculiar combination of circumstances--the absence of one delegate and
another's change of vote causing the position of their respective States
to be reversed or nullified--the vote on the 2d of July resulted in a
tie. This brought the proceedings of the Convention to a standstill. A
committee of one member from each State was appointed to consider the
question, and, "that time might be given to the Committee, and to
such as chose to attend to the celebration on the anniversary of
Independence, the Convention adjourned" over the Fourth. The committee
was chosen by ballot, and its composition was a clear indication that
the small-State men had won their fight, and that a compromise would be
effected.
It was during the debate upon this subject, when feeling was running
high and when at times it seemed as if the Convention in default of any
satisfactory solution would permanently adjourn, that Franklin proposed
that "prayers imploring the assistance of Heaven ... be held in this
Assembly every morning." Tradition relates that Hamilton opposed the
motion. The members were evidently afraid of the impression which would
be created outside, if it were suspected that there were dissensions in
the Convention, and the motion was not put to a vote.
How far physical conditions may influence men in adopting any particular
course of action it is impossible to say. But just when the discussion
in the Convention reached a critical stage, just when the compromise
presented by the committee was ready for adoption or rejection, the
weather turned from unpleasantly hot to being comfortably cool. And,
after some little time spent in the consideration of details, on the
16th of July, the great compromise of the Constitution was adopted.
There was no other that compared with it in importance. Its most
significant features were that in the upper house each State should
have an equal vote and that in the lower house representation should
be apportioned on the basis of population, while direct taxation should
follow the same proportion. The further proviso that money bills should
originate in the lower house and should not be amended in the upper
house was regarded by some delegates as of considerable importance,
though others did not think so, and eventually the restriction upon
amendment by the upper house was dropped.
There has long been a prevailing belief that an essential feature of the
great compromise was the counting of only three-fifths of the slaves in
enumerating the population. This impression is quite erroneous. It was
one of the details of the compromise, but it had been a feature of the
revenue amendment of 1783, and it was generally accepted as a happy
solution of the difficulty that slaves possessed the attributes both
of persons and of property. It had been included both in the amended
Virginia Plan and in the New Jersey Plan; and when it was embodied in
the compromise it was described as "the ratio recommended by Congress in
their resolutions of April 18, 1783." A few months later, in explaining
the matter to the Massachusetts convention, Rufus King said that, "This
rule ... was adopted because it was the language of all America." In
reality the three-fifths rule was a mere incident in that part of
the great compromise which declared that "representation should be
proportioned according to direct taxation." As a further indication of
the attitude of the Convention upon this point, an amendment to have the
blacks counted equally with the whites was voted down by eight States
against two.
With the adoption of the great compromise a marked difference was
noticeable in the attitude of the delegates. Those from the large States
were deeply disappointed at the result and they asked for an adjournment
to give them time to consider what they should do. The next morning,
before the Convention met, they held a meeting to determine upon
their course of action. They were apparently afraid of taking the
responsibility for breaking up the Convention, so they finally decided
to let the proceedings go on and to see what might be the ultimate
outcome. Rumors of these dissensions had reached the ears of the public,
and it may have been to quiet any misgivings that the following inspired
item appeared in several local papers: "So great is the unanimity, we
hear, that prevails in the Convention, upon all great federal subjects,
that it has been proposed to call the room in which they assemble
Unanimity Hall."
On the other hand the effect of this great compromise upon the delegates
from the small States was distinctly favorable. Having obtained equal
representation in one branch of the legislature, they now proceeded with
much greater willingness to consider the strengthening of the central
government. Many details were yet to be arranged, and sharp differences
of opinion existed in connection with the executive as well as with the
judiciary. But these difficulties were slight in comparison with those
which they had already surmounted in the matter of representation. By
the end of July the fifteen resolutions of the original Virginia
Plan had been increased to twenty-three, with many enlargements and
amendments, and the Convention had gone as far as it could effectively
in determining the general principles upon which the government should
be formed. There were too many members to work efficiently when it came
to the actual framing of a constitution with all the inevitable details
that were necessary in setting up a machinery of government. Accordingly
this task was turned over to a committee of five members who had already
given evidence of their ability in this direction. Rutledge was made the
chairman, and the others were Randolph, Gorham, Ellsworth, and Wilson.
To give them time to perfect their work, on the 26th of July the
Convention adjourned for ten days.
CHAPTER VII FINISHING THE WORK
Rutledge and his associates on the committee of detail accomplished so
much in such a short time that it seems as if they must have worked day
and night. Their efforts marked a distinct stage in the development of
the Constitution. The committee left no records, but some of the members
retained among their private papers drafts of the different stages of
the report they were framing, and we are therefore able to surmise the
way in which the committee proceeded. Of course the members were bound
by the resolutions which had been adopted by the Convention and they
held themselves closely to the general principles that had been laid
down. But in the elaboration of details they seem to have begun with the
Articles of Confederation and to have used all of that document that was
consistent with the new plan of government. Then they made use of the
New Jersey Plan, which had been put forward by the smaller States, and
of a third plan which had been presented by Charles Pinckney; for the
rest they drew largely upon the State Constitutions. By a combination
of these different sources the committee prepared a document bearing a
close resemblance to the present Constitution, although subjects were in
a different order and in somewhat different proportions, which, at the
end of ten days, by working on Sunday, they were able to present to
the Convention. This draft of a constitution was printed on seven folio
pages with wide margins for notes and emendations.
The Convention resumed its sessions on Monday, the 6th of August, and
for five weeks the report of the committee of detail was the subject of
discussion. For five hours each day, and sometimes for six hours, the
delegates kept persistently at their task. It was midsummer, and we read
in the diary of one of the members that in all that period only five
days were "cool." Item by item, line by line, the printed draft of the
Constitution was considered. It is not possible, nor is it necessary, to
follow that work minutely; much of it was purely formal, and yet any one
who has had experience with committee reports knows how much importance
attaches to matters of phrasing. Just as the Virginia Plan was made
more acceptable to the majority by changes in wording that seem to us
insignificant, so modifications in phrasing slowly won support for the
draft of the Constitution.
The adoption of the great compromise, as we have seen, changed the whole
spirit of the Convention. There was now an expectation on the part of
the members that something definite was going to be accomplished, and
all were concerned in making the result as good and as acceptable
as possible. In other words, the spirit of compromise pervaded every
action, and it is essential to remember this in considering what was
accomplished.
One of the greatest weaknesses of the Confederation was the inefficiency
of Congress. More than four pages, or three-fifths of the whole printed
draft, were devoted to Congress and its powers. It is more significant,
however, that in the new Constitution the legislative powers of the
Confederation were transferred bodily to the Congress of the United
States, and that the powers added were few in number, although of course
of the first importance. The Virginia Plan declared that, in addition to
the powers under the Confederation, Congress should have the right "to
legislate in all cases to which the separate States are incompetent."
This statement was elaborated in the printed draft which granted
specific powers of taxation, of regulating commerce, of establishing
a uniform rule of naturalization, and at the end of the enumeration of
powers two clauses were added giving to Congress authority:
To call forth the aid of the militia, in order to execute the laws
of the Union, enforce treaties, suppress insurrections, and repel
invasions;
And to make all laws that shall be necessary and proper for carrying
into execution the foregoing powers.
On the other hand, it was necessary to place some limitations upon
the power of Congress. A general restriction was laid by giving to
the executive a right of veto, which might be overruled, however, by a
two-thirds vote of both houses. Following British tradition--yielding
as it were to an inherited fear--these delegates in America were led to
place the first restraint upon the exercise of congressional authority
in connection with treason. The legislature of the United States was
given the power to declare the punishment of treason; but treason itself
was defined in the Constitution, and it was further asserted that
a person could be convicted of treason only on the testimony of two
witnesses, and that attainder of treason should not "work corruption of
blood nor forfeiture except during the life of the person attainted."
Arising more nearly out of their own experience was the prohibition
of export taxes, of capitation taxes, and of the granting of titles of
nobility.
While the committee of detail was preparing its report, the Southern
members of that committee had succeeded in getting a provision inserted
that navigation acts could be passed only by a two-thirds vote of
both houses of the legislature. New England and the Middle States were
strongly in favor of navigation acts for, if they could require all
American products to be carried in American-built and American-owned
vessels, they would give a great stimulus to the ship-building and
commerce of the United States. They therefore wished to give Congress
power in this matter on exactly the same terms that other powers were
granted. The South, however, was opposed to this policy, for it wanted
to encourage the cheapest method of shipping its raw materials. The
South also wanted a larger number of slaves to meet its labor demands.
To this need New England was not favorably disposed. To reconcile the
conflicting interests of the two sections a compromise was finally
reached. The requirement of a two-thirds vote of both houses for the
passing of navigation acts which the Southern members had obtained was
abandoned, and on the other hand it was determined that Congress should
not be allowed to interfere with the importation of slaves for twenty
years. This, again, was one of the important and conspicuous compromises
of the Constitution. It is liable, however, to be misunderstood, for one
should not read into the sentiment of the members of the Convention
any of the later strong prejudice against slavery. There were some
who objected on moral grounds to the recognition of slavery in the
Constitution, and that word was carefully avoided by referring to "such
Persons as any States now existing shall think proper to admit." And
there were some who were especially opposed to the encouragement of
that institution by permitting the slave trade, but the majority of the
delegates regarded slavery as an accepted institution, as a part of the
established order, and public sentiment on the slave trade was not much
more emphatic and positive than it is now on cruelty to animals. As
Ellsworth said, "The morality or wisdom of slavery are considerations
belonging to the States themselves," and the compromise was nothing more
or less than a bargain between the sections.
The fundamental weakness of the Confederation was the inability of the
Government to enforce its decrees, and in spite of the increased powers
of Congress, even including the use of the militia "to execute the
laws of the Union," it was not felt that this defect had been entirely
remedied. Experience under the Confederation had taught men that
something more was necessary in the direction of restricting the
States in matters which might interfere with the working of the central
Government. As in the case of the powers of Congress, the Articles of
Confederation were again resorted to and the restrictions which had
been placed upon the States in that document were now embodied in the
Constitution with modifications and additions. But the final touch was
given in connection with the judiciary.
There was little in the printed draft and there is comparatively little
in the Constitution on the subject of the judiciary. A Federal Supreme
Court was provided for, and Congress was permitted, but not required, to
establish inferior courts; while the jurisdiction of these tribunals was
determined upon the general principles that it should extend to cases
arising under the Constitution and laws of the United States, to
treaties and cases in which foreigners and foreign countries were
involved, and to controversies between States and citizens of different
States. Nowhere in the document itself is there any word as to that
great power which has been exercised by the Federal courts of
declaring null and void laws or parts of laws that are regarded as in
contravention to the Constitution. There is little doubt that the more
important men in the Convention, such as Wilson, Madison, Gouverneur
Morris, King, Gerry, Mason, and Luther Martin, believed that the
judiciary would exercise this power, even though it should not be
specifically granted. The nearest approach to a declaration of this
power is to be found in a paragraph that was inserted toward the end
of the Constitution. Oddly enough, this was a modification of a clause
introduced by Luther Martin with quite another intent. As adopted it
reads: "That this Constitution and the Laws of the United States ... and
all Treaties ... shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby; any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." This paragraph may
well be regarded as the keystone of the constitutional arch of national
power. Its significance lies in the fact that the Constitution is
regarded not as a treaty nor as an agreement between States, but as a
law; and while its enforcement is backed by armed power, it is a law
enforceable in the courts.
One whole division of the Constitution has been as yet barely referred
to, and it not only presented one of the most perplexing problems which
the Convention faced but one of the last to be settled--that providing
for an executive. There was a general agreement in the Convention that
there should be a separate executive. The opinion also developed quite
early that a single executive was better than a plural body, but that
was as far as the members could go with any degree of unanimity. At the
outset they seemed to have thought that the executive would be dependent
upon the legislature, appointed by that body, and therefore more or
less subject to its control. But in the course of the proceedings the
tendency was to grant greater and greater powers to the executive; in
other words, he was becoming a figure of importance. No such office as
that of President of the United States was then in existence. It was a
new position which they were creating. We have become so accustomed to
it that it is difficult for us to hark back to the time when there was
no such officer and to realize the difficulties and the fears of the men
who were responsible for creating that office.
The presidency was obviously modeled after the governorship of the
individual States, and yet the incumbent was to be at the head of the
Thirteen States. Rufus King is frequently quoted to the effect that the
men of that time had been accustomed to considering themselves subjects
of the British king. Even at the time of the Convention there is good
evidence to show that some of the members were still agitating the
desirability of establishing a monarchy in the United States. It was a
common rumor that a son of George III was to be invited to come over,
and there is reason to believe that only a few months before the
Convention met Prince Henry of Prussia was approached by prominent
people in this country to see if he could be induced to accept the
headship of the States, that is, to become the king of the United
States. The members of the Convention evidently thought that they were
establishing something like a monarchy. As Randolph said, the people
would see "the form at least of a little monarch," and they did not want
him to have despotic powers. When the sessions were over, a lady asked
Franklin: "Well, Doctor, what have we got, a republic or a monarchy?" "A
republic," replied the doctor, "if you can keep it."
The increase of powers accruing to the executive office necessitated
placing a corresponding check upon the exercise of those powers. The
obvious method was to render the executive subject to impeachment,
and it was also readily agreed that his veto might be overruled by a
two-thirds vote of Congress; but some further safeguards were necessary,
and the whole question accordingly turned upon the method of his
election and the length of his term. In the course of the proceedings of
the Convention, at several different times, the members voted in favor
of an appointment by the national legislature, but they also voted
against it. Once they voted for a system of electors chosen by the State
legislatures and twice they voted against such a system. Three times
they voted to reconsider the whole question. It is no wonder that Gerry
should say: "We seem to be entirely at a loss."
So it came to the end of August, with most of the other matters disposed
of and with the patience of the delegates worn out by the long strain
of four weeks' close application. During the discussions it had become
apparent to every one that an election of the President by the people
would give a decided advantage to the large States, so that again there
was arising the divergence between the large and small States. In order
to hasten matters to a conclusion, this and all other vexing details
upon which the Convention could not agree were turned over to a
committee made up of a member from each State. It was this committee
which pointed the way to a compromise by which the choice of the
executive was to be entrusted to electors chosen in each State as its
legislature might direct. The electors were to be equal in number to
the State's representation in Congress, including both senators and
representatives, and in each State they were to meet and to vote for
two persons, one of whom should not be an inhabitant of that State. The
votes were to be listed and sent to Congress, and the person who had
received the greatest number of votes was to be President, provided such
a number was a majority of all the electors. In case of a tie the Senate
was to choose between the candidates and, if no one had a majority, the
Senate was to elect "from the five highest on the list."
This method of voting would have given the large States a decided
advantage, of course, in that they would appoint the greater number
of electors, but it was not believed that this system would ordinarily
result in a majority of votes being cast for one man. Apparently no one
anticipated the formation of political parties which would concentrate
the votes upon one or another candidate. It was rather expected that
in the great majority of cases--"nineteen times in twenty," one of the
delegates said--there would be several candidates and that the selection
from those candidates would fall to the Senate, in which all the States
were equally represented and the small States were in the majority. But
since the Senate shared so many powers with the executive, it seemed
better to transfer the right of "eventual election" to the House of
Representatives, where each State was still to have but one vote. Had
this scheme worked as the designers expected, the interests of large
States and small States would have been reconciled, since in effect the
large States would name the candidates and, "nineteen times in twenty,"
the small States would choose from among them.
Apparently the question of a third term was never considered by the
delegates in the Convention. The chief problem before them was
the method of election. If the President was to be chosen by the
legislature, he should not be eligible to reëlection. On the other hand,
if there was to be some form of popular election, an opportunity for
reëlection was thought to be a desirable incentive to good behavior. Six
or seven years was taken as an acceptable length for a single term and
four years a convenient tenure if reëlection was permitted. It was upon
these considerations that the term of four years was eventually agreed
upon, with no restriction placed upon reëlection.
When it was believed that a satisfactory method of choosing the
President had been discovered--and it is interesting to notice the
members of the Convention later congratulated themselves that at least
this feature of their government was above criticism--it was decided
to give still further powers to the President, such as the making of
treaties and the appointing of ambassadors and judges, although the
advice and consent of the Senate was required, and in the case of
treaties two-thirds of the members present must consent.
The presidency was frankly an experiment, the success of which would
depend largely upon the first election; yet no one seems to have been
anxious about the first choice of chief magistrate, and the reason is
not far to seek. From the moment the members agreed that there should be
a single executive they also agreed upon the man for the position.
Just as Washington had been chosen unanimously to preside over the
Convention, so it was generally accepted that he would be the first head
of the new state. Such at least was the trend of conversation and even
of debate on the floor of the Convention. It indicates something of the
conception of the office prevailing at the time that Washington, when
he became President, is said to have preferred the title, "His High
Mightiness, the President of the United States and Protector of their
Liberties."
The members of the Convention were plainly growing tired and there
are evidences of haste in the work of the last few days. There was a
tendency to ride rough-shod over those whose temperaments forced them
to demand modifications in petty matters. This precipitancy gave rise to
considerable dissatisfaction and led several delegates to declare
that they would not sign the completed document. But on the whole the
sentiment of the Convention was overwhelmingly favorable. Accordingly
on Saturday, the 8th of September, a new committee was appointed, to
consist of five members, whose duty it was "to revise the stile of
and arrange the articles which had been agreed to by the House." The
committee was chosen by ballot and was made up exclusively of friends of
the new Constitution: Doctor Johnson of Connecticut, Alexander Hamilton,
who had returned to Philadelphia to help in finishing the work,
Gouverneur Morris, James Madison, and Rufus King. On Wednesday the
twelfth, the Committee made its report, the greatest credit for which
is probably to be given to Morris, whose powers of expression were so
greatly admired. Another day was spent in waiting for the report to be
printed. But on Thursday this was ready, and three days were devoted to
going over carefully each article and section and giving the finishing
touches. By Saturday the work of the Convention was brought to a close,
and the Constitution was then ordered to be engrossed. On Monday, the
17th of September, the Convention met for the last time. A few of
those present being unwilling to sign, Gouverneur Morris again cleverly
devised a form which would make the action appear to be unanimous: "Done
in Convention by the unanimous consent of the states present ... in
witness whereof we have hereunto subscribed our names." Thirty-nine
delegates, representing twelve States, then signed the Constitution.
When Charles Biddle of Philadelphia, who was acquainted with most of the
members of the Convention, wrote his Autobiography, which was published
in 1802, he declared that for his part he considered the government
established by the Constitution to be "the best in the world, and as
perfect as any human form of government can be." But he prefaced that
declaration with a statement that some of the best informed members
of the Federal Convention had told him "they did not believe a single
member was perfectly satisfied with the Constitution, but they believed
it was the best they could ever agree upon, and that it was infinitely
better to have such a one than break up without fixing on some form of
government, which I believe at one time it was expected they would have
done."
One of the outstanding characteristics of the members of the Federal
Convention was their practical sagacity. They had a very definite object
before them. No matter how much the members might talk about democracy
in theory or about ancient confederacies, when it came to action they
did not go outside of their own experience. The Constitution was devised
to correct well-known defects and it contained few provisions which had
not been tested by practical political experience. Before the Convention
met, some of the leading men in the country had prepared lists of the
defects which existed in the Articles of Confederation, and in the
Constitution practically every one of these defects was corrected and by
means which had already been tested in the States and under the Articles
of Confederation.
CHAPTER VIII THE UNION ESTABLISHED
The course of English history shows that Anglo-Saxon tradition is
strongly in favor of observing precedents and of trying to maintain
at least the form of law, even in revolutions. When the English people
found it impossible to bear with James II and made it so uncomfortable
for him that he fled the country, they shifted the responsibility from
their own shoulders by charging him with "breaking the original Contract
between King and People." When the Thirteen Colonies had reached the
point where they felt that they must separate from England, their
spokesman, Thomas Jefferson, found the necessary justification in the
fundamental compact of the first settlers "in the wilds of America"
where "the emigrants thought proper to adopt that system of laws
under which they had hitherto lived in the mother country"; and in the
Declaration of Independence he charged the King of Great Britain with
"repeated injuries and usurpations all having in direct object the
establishment of an absolute Tyranny over these States."
And so it was with the change to the new form of government in the
United States, which was accomplished only by disregarding the forms
prescribed in the Articles of Confederation and has been called,
therefore, "the Revolution of 1789." From the outset the new
constitution was placed under the sanction of the old. The movement
began with an attempt, outwardly at least, to revise the Articles of
Confederation and in that form was authorized by Congress. The first
breach with the past was made when the proposal in the Virginia
Resolutions was accepted that amendments made by the Convention in the
Articles of Confederation should be submitted to assemblies chosen by
the people instead of to the legislatures of the separate States. This
was the more readily accepted because it was believed that ratification
by the legislatures would result in the formation of a treaty rather
than in a working instrument of government. The next step was to
prevent the work of the Convention from meeting the fate of all previous
amendments to the Articles of Confederation, which had required the
consent of every State in the Union. At the time the committee of detail
made its report, the Convention was ready to agree that the consent of
all the States was not necessary, and it eventually decided that, when
ratified by the conventions of nine States, the Constitution should go
into effect between the States so ratifying.
It was not within the province of the Convention to determine what the
course of procedure should be in the individual States; so it simply
transmitted the Constitution to Congress and in an accompanying
document, which significantly omitted any request for the approval of
Congress, strongly expressed the opinion that the Constitution should
"be submitted to a convention of delegates chosen in each state by the
people thereof." This was nothing less than indirect ratification by the
people; and, since it was impossible to foretell in advance which of the
States would or would not ratify, the original draft of "We, the People
of the States of New Hampshire, Massachusetts, Rhode Island, ..." was
changed to the phrase "We, the People of the United States." No man of
that day could imagine how significant this change would appear in the
light of later history.
Congress did not receive the new Constitution enthusiastically, yet
after a few days' discussion it unanimously voted, eleven States being
present, that the recommendations of the Convention should be followed,
and accordingly sent the document to the States, but without a word of
approval or disapproval. On the whole the document was well received,
especially as it was favored by the upper class, who had the ability and
the opportunity for expression and were in a position to make themselves
heard. For a time it looked as if the Constitution would be readily
adopted.
The contest over the Constitution in the States is usually taken as
marking the beginning of the two great national political parties in
the United States. This was, indeed, in a way the first great national
question that could cause such a division. There had been, to be sure,
Whigs and Tories in America, reproducing British parties, but when the
trouble with the mother country began, the successive congresses of
delegates were recognized and attended only by the so-called American
Whigs, and after the Declaration of Independence the name of Tory became
a reproach, so that with the end of the war the Tory party disappeared.
After the Revolution there were local parties in the various States,
divided on one and another question, such as that of hard and soft
money, and these issues had coincided in different States; but they were
in no sense national parties with organizations, platforms, and leaders;
they were purely local, and the followers of one or the other would have
denied that they were anything else than Whigs. But a new issue was
now raised. The Whig party split in two, new leaders appeared, and the
elements gathered in two main divisions--the Federalists advocating, and
the Anti-Federalists opposing, the adoption of the new Constitution.
There were differences of opinion over all the questions which had
led to the calling of the Federal Convention and the framing of the
Constitution and so there was inevitably a division upon the result of
the Convention's work. There were those who wanted national authority
for the suppression of disorder and of what threatened to be anarchy
throughout the Union; and on the other hand there were those who opposed
a strongly organized government through fear of its destroying liberty.
Especially debtors and creditors took opposite sides, and most of the
people in the United States could have been brought under one or
the other category. The former favored a system of government and
legislation which would tend to relieve or postpone the payment of
debts; and, as that relief would come more readily from the State
Governments, they were naturally the friends of State rights and State
authority and were opposed to any enlargement of the powers of the
Federal Government. On the other hand, were those who felt the necessity
of preserving inviolate every private and public obligation and who
saw that the separate power of the States could not accomplish what was
necessary to sustain both public and private credit; they were
disposed to use the resources of the Union and accordingly to favor the
strengthening of the national government. In nearly every State there
was a struggle between these classes.
In Philadelphia and the neighborhood there was great enthusiasm for the
new Constitution. Almost simultaneously with the action by Congress, and
before notification of it had been received, a motion was introduced
in the Pennsylvania Assembly to call a ratifying convention. The
Anti-Federalists were surprised by the suddenness of this proposal and
to prevent action absented themselves from the session of the Assembly,
leaving that body two short of the necessary quorum for the transaction
of business. The excitement and indignation in the city were so great
that early the next morning a crowd gathered, dragged two of the
absentees from their lodgings to the State House, and held them firmly
in their places until the roll was called and a quorum counted, when the
House proceeded to order a State convention. As soon as the news of this
vote got out, the city gave itself up to celebrating the event by
the suspension of business, the ringing of church bells, and other
demonstrations. The elections were hotly contested, but the Federalists
were generally successful. The convention met towards the end of
November and, after three weeks of futile discussion, mainly upon
trivial matters and the meaning of words, ratified the Constitution on
the 12th of December, by a vote of forty-six to twenty-three. Again the
city of Philadelphia celebrated.
Pennsylvania was the first State to call a convention, but its final
action was anticipated by Delaware, where the State convention met and
ratified the Constitution by unanimous vote on the 7th of December. The
New Jersey convention spent only a week in discussion and then voted,
also unanimously, for ratification on the 18th of December. The next
State to ratify was Georgia, where the Constitution was approved without
a dissenting vote on January 2, 1788. Connecticut followed immediately
and, after a session of only five days, declared itself in favor of the
Constitution, on the 9th of January, by a vote of over three to one.
The results of the campaign for ratification thus far were most
gratifying to the Federalists, but the issue was not decided. With the
exception of Pennsylvania, the States which had acted were of lesser
importance, and, until Massachusetts, New York, and Virginia should
declare themselves, the outcome would be in doubt. The convention
of Massachusetts met on the same day that the Connecticut convention
adjourned. The sentiment of Boston, like that of Philadelphia, was
strongly Federalist; but the outlying districts, and in particular the
western part of the State, where Shays' Rebellion had broken out, were
to be counted in the opposition. There were 355 delegates who took part
in the Massachusetts convention, a larger number than was chosen in
any of the other States, and the majority seemed to be opposed to
ratification. The division was close, however, and it was believed that
the attitude of two men would determine the result. One of these was
Governor John Hancock, who was chosen chairman of the convention but
who did not attend the sessions at the outset, as he was confined to
his house by an attack of gout, which, it was maliciously said,
would disappear as soon as it was known which way the majority of the
convention would vote. The other was Samuel Adams, a genuine friend
of liberty, who was opposed on principle to the general theory of the
government set forth in the Constitution. "I stumble at the threshold,"
he wrote. "I meet with a national government, instead of a federal union
of sovereign states." But, being a shrewd politician, Adams did not
commit himself openly and, when the tradesmen of Boston declared
themselves in favor of ratification, he was ready to yield his personal
opinion.
There were many delegates in the Massachusetts convention who felt that
it was better to amend the document before them than to try another
Federal Convention, when as good an instrument might not be devised. If
this group were added to those who were ready to accept the Constitution
as it stood, they would make a majority in favor of the new government.
But the delay involved in amending was regarded as dangerous, and it was
argued that, as the Constitution made ample provision for changes, it
would be safer and wiser to rely upon that method. The question was one,
therefore, of immediate or future amendment. Pressure was accordingly
brought to bear upon Governor Hancock and intimations were made to
him of future political preferment, until he was persuaded to
propose immediate ratification of the Constitution, with an urgent
recommendation of such amendments as would remove the objections of
the Massachusetts people. When this proposal was approved by Adams, its
success was assured, and a few days later, on the 6th of February, the
convention voted 187 to 168 in favor of ratification. Nine amendments,
largely in the nature of a bill of rights, were then demanded, and the
Massachusetts representatives in Congress were enjoined "at all times,
... to exert all their influence, and use all reasonable and legal
methods, To obtain a ratification of the said alterations and
provisions." On the very day this action was taken, Jefferson wrote
from Paris to Madison: "I wish with all my soul that the nine first
conventions may accept the new Constitution, to secure to us the good
it contains; but I equally wish that the four latest, whichever they may
be, may refuse to accede to it till a declaration of rights be annexed."
Boston proceeded to celebrate as Philadelphia, and Benjamin Lincoln
wrote to Washington, on the 9th of February, enclosing an extract from
the local paper describing the event:
By the paper your Excellency will observe some account of the parade of
the Eighth the printer had by no means time eno' to do justice to the
subject. To give you some idea how far he has been deficient I will
mention an observation I heard made by a Lady the last evening who saw
the whole that the description in the paper would no more compare with
the original than the light of the faintest star would with that of the
Sun fortunately for us the whole ended without the least disorder
and the town during the whole evening was, so far as I could observe
perfectly quiet. ¹
He added another paragraph which he later struck out as being of little
importance; but it throws an interesting sidelight upon the customs of
the time.
The Gentlemen provided at Faneul Hall some biscuit & cheese four qr
Casks of wine three barrels & two hogs of punch the moment they found
that the people had drank sufficiently means were taken to overset the
two hogs punch this being done the company dispersed and the day ended
most agreeably ²
¹ Documentary History, vol. iv, pp. 488-490. ² Ibid.
Maryland came next. When the Federal Convention was breaking up, Luther
Martin was speaking of the new system of government to his colleague,
Daniel of St. Thomas Jenifer, and exclaimed: "I'll be hanged if ever
the people of Maryland agree to it!" To which his colleague retorted:
"I advise you to stay in Philadelphia, lest you should be hanged." And
Jenifer proved to be right, for in Maryland the Federalists obtained
control of the convention and, by a vote of 63 to 11, ratified the
Constitution on the 26th of April.
In South Carolina, which was the Southern State next in importance to
Virginia, the compromise on the slave trade proved to be one of the
deciding factors in determining public opinion. When the elections were
held, they resulted in an overwhelming majority for the Federalists, so
that after a session of less than two weeks the convention ratified the
Constitution, on the 28th of May, by a vote of over two to one.
The only apparent setback which the adoption of the Constitution had
thus far received was in New Hampshire, where the convention met early
in February and then adjourned until June to see what the other States
might do. But this delay proved to be of no consequence for, when the
time came for the second meeting of the New Hampshire delegates, eight
States had already acted favorably and adoption was regarded as a
certainty. This was sufficient to put a stop to any further waiting, and
New Hampshire added its name to the list on the 21st of June; but the
division of opinion was fairly well represented by the smallness of the
majority, the vote standing 57 to 46.
Nine States had now ratified the Constitution and it was to go into
effect among them. But the support of Virginia and New York was of so
much importance that their decisions were awaited with uneasiness. In
Virginia, in spite of the support of such men as Washington and Madison,
the sentiment for and against the Constitution was fairly evenly
divided, and the opposition numbered in its ranks other names of almost
equal influence, such as Patrick Henry and George Mason. Feeling ran
high; the contest was a bitter one and, even after the elections had
been held and the convention had opened, early in June, the decision was
in doubt and remained in doubt until the very end. The situation was,
in one respect at least, similar to that which had existed in
Massachusetts, in that it was possible to get a substantial majority
in favor of the Constitution provided certain amendments were made. The
same arguments were used, strengthened on the one side by what other
States had done, and on the other side by the plea that now was the time
to hold out for amendments. The example of Massachusetts, however, seems
to have been decisive, and on the 25th of June, four days later than
New Hampshire, the Virginia convention voted to ratify, "under the
conviction that whatsoever imperfections may exist in the Constitution
ought rather to be examined in the mode prescribed therein, than
to bring the Union into danger by delay, with a hope of obtaining
amendments previous to the ratification."
When the New York convention began its sessions on the 17th of June, it
is said that more than two-thirds of the delegates were Anti-Federalist
in sentiment. How a majority in favor of the Constitution was obtained
has never been adequately explained, but it is certain that the main
credit for the achievement belongs to Alexander Hamilton. He had early
realized how greatly it would help the prospects of the Constitution if
thinking people could be brought to an appreciation of the importance
and value of the new form of government. In order to reach the
intelligent public everywhere, but particularly in New York, he
projected a series of essays which should be published in the
newspapers, setting forth the aims and purposes of the Constitution.
He secured the assistance of Madison and Jay, and before the end of
October, 1787, published the first essay in The Independent Gazetteer.
From that time on these papers continued to be printed over the
signature of "Publius," sometimes as many as three or four in a week.
There were eighty-five numbers altogether, which have ever since been
known as The Federalist. Of these approximately fifty were the work of
Hamilton, Madison wrote about thirty and Jay five. Although the essays
were widely copied in other journals, and form for us the most important
commentary on the Constitution, making what is regarded as one of
America's greatest books, it is doubtful how much immediate influence
they had. Certainly in the New York convention itself Hamilton's
personal influence was a stronger force. His arguments were both
eloquent and cogent, and met every objection; and his efforts to win
over the opposition were unremitting. The news which came by express
riders from New Hampshire and then from Virginia were also deciding
factors, for New York could not afford to remain out of the new Union if
it was to embrace States on either side. And yet the debate continued,
as the opposition was putting forth every effort to make ratification
conditional upon certain amendments being adopted. But Hamilton
resolutely refused to make any concessions and at length was successful
in persuading the New York convention, by a vote of 30 against 27, on
the 26th of July, to follow the example of Massachusetts and Virginia
and to ratify the Constitution with merely a recommendation of future
amendments.
The satisfaction of the country at the outcome of the long and momentous
struggle over the adoption of the new government was unmistakable. Even
before the action of New York had been taken, the Fourth of July was
made the occasion for a great celebration throughout the United States,
both as the anniversary of independence and as the consummation of the
Union by the adoption of the Constitution.
The general rejoicing was somewhat tempered, however, by the reluctance
of North Carolina and Rhode Island to come under "the new roof." Had
the convention which met on the 21st of July in North Carolina reached
a vote, it would probably have defeated the Constitution, but it was
doubtless restrained by the action of New York and adjourned without
coming to a decision. A second convention was called in September, 1789,
and in the meantime the new government had come into operation and was
bringing pressure to bear upon the recalcitrant States which refused to
abandon the old union for the new. One of the earliest acts passed by
Congress was a revenue act, levying duties upon foreign goods imported,
which were made specifically to apply to imports from Rhode Island and
North Carolina. This was sufficient for North Carolina, and on November
21, 1789, the convention ratified the Constitution. But Rhode Island
still held out. A convention of that State was finally called to meet
in March, 1790, but accomplished nothing and avoided a decision by
adjourning until May. The Federal Government then proceeded to threaten
drastic measures by taking up a bill which authorized the President to
suspend all commercial intercourse with Rhode Island and to demand of
that State the payment of its share of the Federal debt. The bill passed
the Senate but stopped there, for the State gave in and ratified the
Constitution on the 29th of May. Two weeks later Ellsworth, who was now
United States Senator from Connecticut, wrote that Rhode Island had been
"brought into the Union, and by a pretty cold measure in Congress, which
would have exposed me to some censure, had it not produced the effect
which I expected it would and which in fact it has done. But 'all is
well that ends well.' The Constitution is now adopted by all the States
and I have much satisfaction, and perhaps some vanity, in seeing,
at length, a great work finished, for which I have long labored
incessantly." ¹
Perhaps the most striking feature of these conventions is the trivial
character of the objections that were raised. Some of the arguments
it is true, went to the very heart of the matter and considered the
fundamental principles of government. It is possible to tolerate and
even to sympathize with a man who declared:
Among other deformities the Constitution has an awful squinting. It
squints toward monarchy; ... your president may easily become a king....
If your American chief be a man of ambition and ability how easy it is
for him to render himself absolute. We shall have a king. The army will
salute him monarch. ²
But it is hard to take seriously a delegate who asked permission "to
make a short apostrophe to liberty," and then delivered himself of this
bathos:
O liberty!--thou greatest good--thou fairest property--with thee I wish
to live--with thee I wish to die!--Pardon me if I drop a tear on the
peril to which she is exposed; I cannot, sir, see this brightest of
jewels tarnished! a jewel worth ten thousand worlds! and shall we part
with it so soon? O no! ³
¹, ² "Connecticut's Ratification of the Federal Constitution," by B.
C. Steiner, in Proceedings of the American Antiquarian Society, April,
1915, pp. 88-89.
³ Elliot's Debates on the Federal Constitution, vol. iii, p. 144.
There might be some reason in objecting to the excessive power vested
in Congress; but what is one to think of the fear that imagined the
greatest point of danger to lie in the ten miles square which later
became the District of Columbia, because the Government might erect a
fortified stronghold which would be invincible? Again, in the light of
subsequent events it is laughable to find many protesting that, although
each house was required to keep a journal of proceedings, it was only
required "from time to time to publish the same, excepting such parts
as may in their judgment require secrecy." All sorts of personal charges
were made against those who were responsible for the framing of the
Constitution. Hopkinson wrote to Jefferson in April, 1788:
You will be surprised when I tell you that our public News Papers have
announced General Washington to be a Fool influenced & lead by that
Knave Dr. Franklin, who is a public Defaulter for Millions of Dollars,
that Mr. Morris has defrauded the Public out of as many Millions as you
please & that they are to cover their frauds by this new Government. ¹
¹ Documentary History of the Constitution, vol. iv, p. 563.
All things considered, it is difficult to avoid the conclusion that such
critics and detractors were trying to find excuses for their opposition.
The majorities in the various conventions can hardly be said really to
represent the people of their States, for only a small percentage of the
people had voted in electing them; they were representative rather of
the propertied upper class. This circumstance has given rise to the
charge that the Constitution was framed and adopted by men who were
interested in the protection of property, in the maintenance of the
value of government securities, and in the payment of debts which had
been incurred by the individual States in the course of the Revolution.
Property-holders were unquestionably assisted by the mere establishment
of a strong government. The creditor class seemed to require some
special provision and, when the powers of Congress were under
consideration in the Federal Convention, several of the members argued
strongly for a positive injunction on Congress to assume obligations
of the States. The chief objection to this procedure seemed to be based
upon the fear of benefiting speculators rather than the legitimate
creditors, and the matter was finally compromised by providing that
all debts should be "as valid against the United States under
this Constitution as under the Confederation." The charge that the
Constitution was framed and its adoption obtained by men of property and
wealth is undoubtedly true, but it is a mistake to attribute unworthy
motives to them. The upper classes in the United States were generally
people of wealth and so would be the natural holders of government
securities. They were undoubtedly acting in self-protection, but the
responsibility rested upon them to take the lead. They were acting
indeed for the public interest in the largest sense, for conditions in
the United States were such that every man might become a landowner
and the people in general therefore wished to have property rights
protected.
In the autumn of 1788 the Congress of the old Confederation made
testamentary provision for its heir by voting that presidential electors
should be chosen on the first Wednesday in January, 1789; that these
electors should meet and cast their votes for President on the first
Wednesday in February; and that the Senate and House of Representatives
should assemble on the first Wednesday in March. It was also decided
that the seat of government should be in the City of New York until
otherwise ordered by Congress. In accordance with this procedure,
the requisite elections were held, and the new government was duly
installed. It happened in 1789 that the first Wednesday in March was
the fourth day of that month, which thereby became the date for the
beginning of each subsequent administration.
The acid test of efficiency was still to be applied to the new machinery
of government. But Americans then, as now, were an adaptable people,
with political genius, and they would have been able to make almost any
form of government succeed. If the Federal Convention had never met,
there is good reason for believing that the Articles of Confederation,
with some amendments, would have been made to work. The success of the
new government was therefore in a large measure dependent upon the favor
of the people. If they wished to do so, they could make it win out in
spite of obstacles. In other words, the new government would succeed
exactly to the extent to which the people stood back of it. This was the
critical moment when the slowly growing prosperity, described at length
and emphasized in the previous chapters, produced one of its most
important effects. In June, 1788, Washington wrote to Lafayette:
I expect, that many blessings will be attributed to our new government,
which are now taking their rise from that industry and frugality into
the practice of which the people have been forced from necessity. I
really believe that there never was so much labour and economy to be
found before in the country as at the present moment. If they persist
in the habits they are acquiring, the good effects will soon be
distinguishable. When the people shall find themselves secure under an
energetic government, when foreign Nations shall be disposed to give us
equal advantages in commerce from dread of retaliation, when the burdens
of the war shall be in a manner done away by the sale of western lands,
when the seeds of happiness which are sown here shall begin to expand
themselves, and when every one (under his own vine and fig-tree) shall
begin to taste the fruits of freedom--then all these blessings (for all
these blessings will come) will be referred to the fostering influence
of the new government. Whereas many causes will have conspired to
produce them.
A few months later a similar opinion was expressed by Crèvecœur in
writing to Jefferson:
Never was so great a change in the opinion of the best people as has
happened these five years; almost everybody feels the necessity of
coercive laws, government, union, industry, and labor.... The exports of
this country have singularly increased within these two years, and the
imports have decreased in proportion.
The new Federal Government was fortunate in beginning its career at the
moment when returning prosperity was predisposing the people to think
well of it. The inauguration of Washington marked the opening of a new
era for the people of the United States of America.
APPENDIX ¹
¹ The documents in this Appendix follow the text of the Revised
Statutes of the United States, Second Edition, 1878. THE DECLARATION OF
INDEPENDENCE--1776. In Congress, July 4, 1776
The unanimous Declaration of the thirteen united States of America
When in the Course of human events, it becomes necessary for one people
to dissolve the political bands which have connected them with another,
and to assume among the Powers of the earth, the separate and equal
station to which the Laws of Nature and of Nature's God entitle them,
a decent respect to the opinions of mankind requires that they should
declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. That
to secure these rights, Governments are instituted among Men, deriving
their just powers from the consent of the governed, That whenever any
Form of Government becomes destructive of these ends, it is the Right of
the People to alter or to abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in
such form, as to them shall seem most likely to effect their Safety
and Happiness. Prudence, indeed, will dictate that Governments long
established should not be changed for light and transient causes; and
accordingly all experience hath shown, that mankind are more disposed
to suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when a long train
of abuses and usurpations, pursuing invariably the same Object evinces a
design to reduce them under absolute Despotism, it is their right, it is
their duty, to throw off such Government, and to provide new Guards for
their future security.--Such has been the patient sufferance of these
Colonies; and such is now the necessity which constrains them to alter
their former Systems of Government. The history of the present King of
Great Britain is a history of repeated injuries and usurpations, all
having in direct object the establishment of an absolute Tyranny over
these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for
the public good.
He has forbidden his Governors to pass Laws of immediate and pressing
importance, unless suspended in their operation till his Assent should
be obtained; and when so suspended, he has utterly neglected to attend
to them.
He has refused to pass other Laws for the accommodation of large
districts of people, unless those people would relinquish the right
of Representation in the Legislature, a right inestimable to them and
formidable to tyrants only.
He has called together legislative bodies at places unusual,
uncomfortable, and distant from the depository of their Public Records,
for the sole purpose of fatiguing them into compliance with his
measures.
He has dissolved Representative Houses repeatedly, for opposing with
manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause
others to be elected; whereby the Legislative Powers, incapable of
Annihilation, have returned to the People at large for their exercise;
the State remaining in the mean time exposed to all the dangers of
invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that
purpose obstructing the Laws for Naturalization of Foreigners; refusing
to pass others to encourage their migration hither, and raising the
conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent
to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their
offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of
Officers to harrass our People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the
Consent of our legislature.
He has affected to render the Military independent of and superior to
the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to
our constitution, and unacknowledged by our laws; giving his Assent to
their acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from Punishment for any Murders
which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring
Province, establishing therein an Arbitrary government, and enlarging
its Boundaries so as to render it at once an example and fit instrument
for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and
altering fundamentally the Forms of our Government:
For suspending our own Legislature, and declaring themselves invested
with Power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection
and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and
destroyed the lives of our people.
He is at this time transporting large armies of foreign mercenaries to
compleat the works of death, desolation and tyranny, already begun
with circumstances of Cruelty & perfidy scarcely paralleled in the most
barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas
to bear Arms against their Country, to become the executioners of their
friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to
bring on the inhabitants of our frontiers, the merciless Indian Savages,
whose known rule of warfare, is an undistinguished destruction of all
ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in
the most humble terms: Our repeated Petitions have been answered only by
repeated injury. A Prince, whose character is thus marked by every act
which may define a Tyrant, is unfit to be the ruler of a free People.
Nor have We been wanting in attention to our Brittish brethren. We have
warned them from time to time of attempts by their legislature to extend
an unwarrantable jurisdiction over us. We have reminded them of the
circumstances of our emigration and settlement here. We have appealed to
their native justice and magnanimity, and we have conjured them by the
ties of our common kindred to disavow these usurpations, which, would
inevitably interrupt our connections and correspondence[.] They too
have been deaf to the voice of justice and of consanguinity. We must,
therefore, acquiesce in the necessity, which denounces our Separation,
and hold them, as we hold the rest of mankind, Enemies in War, in Peace
Friends.
We, therefore, the Representative of the united States of America, in
General Congress, Assembled, appealing to the Supreme Judge of the world
for the rectitude of our intentions, do, in the Name, and by Authority
of the good People of these Colonies, solemnly publish and declare, 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 totally dissolved; and that as Free and
Independent States, they have full Power to levy War, conclude Peace,
contract Alliances, establish Commerce, and to do all other Acts and
Things which Independent States may of right do. And for the support
of this Declaration, with a firm reliance on the Protection of Divine
Providence, we mutually pledge to each other our Lives, our Fortunes and
our sacred Honor.
JOHN HANCOCK.
New Hampshire.
Josiah Bartlett, Wm. Whipple, Matthew Thornton.
Massachusetts Bay.
Saml. Adams, John Adams, Robt. Treat Paine, Elbridge Gerry.
Rhode Island.
Step. Hopkins, William Ellery.
Connecticut.
Roger Sherman, Sam'el Huntington, Wm. Williams, Oliver Wolcott.
New York.
Wm. Floyd, Phil. Livingston, Frans. Lewis, Lewis Morris.
New Jersey.
Richd. Stockton, Jno. Witherspoon, Fras. Hopkinson, John Hart, Abra.
Clark.
Pennsylvania.
Robt. Morris, Benjamin Rush, Benja. Franklin, John Morton, Geo. Clymer,
Jas. Smith, Geo. Taylor, James Wilson, Geo. Ross.
Delaware.
Cæsar Rodney, Geo. Read, Tho. M'Kean.
Maryland.
Samuel Chase, Wm. Paca, Thos. Stone, Charles Carroll of Carrollton.
Virginia.
George Wythe, Richard Henry Lee, Th. Jefferson, Benja. Harrison, Thos.
Nelson, Jr., Francis Lightfoot Lee, Carter Braxton.
North Carolina.
Wm. Hooper, Joseph Hewes, John Penn.
South Carolina.
Edward Rutledge, Thos Heyward, Junr., Thomas Lynch, Junr., Arthur
Middleton.
Georgia.
Button Gwinnett, Lyman Hall, Geo. Walton
Note.--Mr. Ferdinand Jefferson, Keeper of the Rolls in the Department of
State, at Washington, says: "The names of the signers are spelt above
as in the fac-simile of the original, but the punctuation of them is
not always the same; neither do the names of the States appear in the
fac-simile of the original. The names of the signers of each State are
grouped together in the fac-simile of the original, except the name of
Matthew Thornton, which follows that of Oliver Wolcott."
ARTICLES OF CONFEDERATION--1777.
To all to whom these Presents shall come, we the undersigned Delegates
of the States affixed to our Names send greeting.
Whereas the Delegates of the United States of America in Congress
assembled did on the fifteenth day of November in the Year of our Lord
One Thousand Seven Hundred and Seventyseven, and in the Second Year of
the Independence of America agree to certain articles of
Confederation and perpetual Union between the States of Newhampshire,
Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North-Carolina, South-Carolina and Georgia in the Words following, viz.
"Articles of Confederation and perpetual Union between the States of
Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations,
Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland,
Virginia, North-Carolina, South-Carolina and Georgia.
Article I. The stile of this confederacy shall be "The United States of
America."
Article II. 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.
Article III. 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.
Article IV. 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 restrictions 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.
Article V. 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 another for his benefit receives any
salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a 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.
Article VI. 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 accoutered, and shall provide and constantly have 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 received 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
commissions 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.
Article VII. 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 Legislature 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.
Article VIII. 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.
Article IX. 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 times 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 a 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 favour, 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 jurisdiction 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 thro' the same as may be requisite to defray the
expenses of the said office--appointing all officers of the land
forces, in the service of the United States, excepting regimental
officers--appointing all the 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 cloath, arm and equip them in a soldier like manner, at
the expense of the United States; and the officers and men so cloathed,
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, cloathed, 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, cloath, arm and equip
as many of such extra number as they judge can be safely spared. And
the officers and men so cloathed, 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 secresy; 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.
Article X. 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.
Article XI. 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.
Article XII. All bills of credit emitted, monies 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.
Article XIII. 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.
And whereas it has pleased the Great Governor of the world to incline
the hearts of the Legislatures we respectively represent in Congress,
to approve of, and to authorize us to ratify the said articles of
confederation and perpetual union. Know ye that we the undersigned
delegates, by virtue of the power and authority to us given for
that purpose, do by these presents, in the name and in behalf of our
respective constituents, fully and entirely ratify and confirm each and
every of the said articles of confederation and perpetual union, and all
and singular the matters and things therein contained: and we do further
solemnly plight and engage the faith of our respective constituents,
that they shall abide by the determinations of the United States in
Congress assembled, on all questions, which by the said confederation
are submitted to them. And that the articles thereof shall be inviolably
observed by the States we re[s]pectively represent, and that the Union
shall be perpetual.
In witness whereof we have hereunto set our hands in Congress. Done at
Philadelphia in the State of Pennsylvania the ninth day of July in the
year of our Lord one thousand seven hundred and seventy-eight, and in
the third year of the independence of America. ¹
¹ From the circumstances of delegates from the same State having signed
the Articles of Confederation at different times, as appears by the
dates, it is probable they affixed their names as they happened to
be present in Congress, after they had been authorized by their
constituents.
On the part & behalf of the State of New Hampshire.
Josiah Bartlett, John Wentworth, Junr., August 8th, 1778.
On the part and behalf of the State of Massachusetts Bay.
John Hancock, Samuel Adams, Elbridge Gerry, Francis Dana, James Lovell,
Samuel Holten.
On the part and behalf of the State of Rhode Island and Providence
Plantations.
Williams Ellery, Henry Marchant, John Collins.
On the part and behalf of the State of Connecticut.
Roger Sherman, Samuel Huntington, Oliver Wolcott, Titus Hosmer, Andrew
Adams.
On the part and behalf of the State of New York.
Jas. Duane, Fra. Lewis, Wm. Duer, Gouv. Morris.
On the part and behalf of the State of New Jersey, Novr. 26, 1778.
Jno. Witherspoon. Nathl. Scudder.
On the part & behalf of the State of Pennsylvania.
Robt. Morris, Daniel Roberdeau, Jona. Bayard Smith, William Clingan,
Joseph Reed, 22d July, 1778.
On the part & behalf of the State of Delaware.
Tho. M'Kean, Feby. 12, 1779. John Dickinson, May 5, 1779. Nicholas Van
Dyke.
On the part and behalf of the State of Maryland.
John Hanson, March 1, 1781. Daniel Carroll, Mar. 1, 1781.
On the part and behalf of the State of Virginia.
Richard Henry Lee, John Banister, Thomas Adams, Jno. Harvie, Francis
Lightfoot Lee.
On the part and behalf of the State of No. Carolina.
John Penn, July 21st, 1778. Corns. Harnett, Jno. Williams.
On the part & behalf of the State of South Carolina.
Henry Laurens, William Henry Drayton, Jno. Mathews, Richd. Hutson, Thos.
Heyward, Junr.
On the part & behalf of the State of Georgia.
Jno. Walton, 24th July, 1778. Edwd. Telfair, Edwd. Langworthy.
THE NORTHWEST TERRITORIAL GOVERNMENT--1787. THE CONFEDERATE CONGRESS,
JULY 13, 1787.
An Ordinance for the government of the territory of the United States
northwest of the river Ohio.
Section 1. Be it ordained by the United States in Congress assembled,
That the said territory, for the purpose of temporary government, be one
district, subject, however, to be divided into two districts, as future
circumstances may, in the opinion of Congress, make it expedient.
Sec. 2. Be it ordained by the authority aforesaid, That the estates both
of resident and non-resident proprietors in the said territory, dying
intestate, shall descend to, and be distributed among, their children
and the descendants of a deceased child in equal parts, the descendants
of a deceased child or grandchild to take the share of their deceased
parent in equal parts among them; and where there shall be no children
or descendants, then in equal parts to the next of kin, in equal degree;
and among collaterals, the children of a deceased brother or sister
of the intestate shall have, in equal parts among them, their deceased
parent's share; and there shall, in no case, be a distinction between
kindred of the whole and half blood; saving in all cases to the widow of
the intestate, her third part of the real estate for life, and one-third
part of the personal estate; and this law relative to descents and
dower, shall remain in full force until altered by the legislature of
the district. And until the governor and judges shall adopt laws as
hereinafter mentioned, estates in the said territory may be devised or
bequeathed by wills in writing, signed and sealed by him or her in whom
the estate may be, (being of full age,) and attested by three witnesses;
and real estates may be conveyed by lease and release, or bargain and
sale, signed, sealed, and delivered by the person, being of full age,
in whom the estate may be, and attested by two witnesses, provided
such wills be duly proved, and such conveyances be acknowledged, or the
execution thereof duly proved, and be recorded within one year after
proper magistrates, courts, and registers, shall be appointed for that
purpose; and personal property may be transferred by delivery, saving,
however, to the French and Canadian inhabitants, and other settlers of
the Kaskaskias, Saint Vincents, and the neighboring villages, who have
heretofore professed themselves citizens of Virginia, their laws and
customs now being in force among them, relative to the descent and
conveyance of property.
Sec. 3. Be it ordained by the authority aforesaid, That there shall be
appointed, from time to time, by Congress, a governor, whose commission
shall continue in force for the term of three years, unless sooner
revoked by Congress; he shall reside in the district, and have a
freehold estate therein, in one thousand acres of land, while in the
exercise of his office.
Sec. 4. There shall be appointed from time to time, by Congress, a
secretary, whose commission shall continue in force for four years,
unless sooner revoked; he shall reside in the district, and have a
freehold estate therein, in five hundred acres of land, while in the
exercise of his office. It shall be his duty to keep and preserve the
acts and laws passed by the legislature, and the public records of
the district, and the proceedings of the governor in his executive
department, and transmit authentic copies of such acts and proceedings
every six months to the Secretary of Congress. There shall also be
appointed a court, to consist of three judges, any two of whom to form
a court, who shall have a common-law jurisdiction, and reside in the
district, and have each therein a freehold estate, in five hundred acres
of land, while in the exercise of their offices; and their commissions
shall continue in force during good behavior.
Sec. 5. The governor and judges, or a majority of them, shall adopt and
publish in the distric[t] such laws of the original States, criminal and
civil, as may be necessary, and best suited to the circumstances of
the district, and report them to Congress from time to time, which laws
shall be in force in the district until the organization of the general
assembly therein, unless disapproved of by Congress; but afterwards the
legislature shall have authority to alter them as they shall think fit.
Sec. 6. The governor, for the time being, shall be commander-in-chief of
the militia, appoint and commission all officers in the same below the
rank of general officers; all general officers shall be appointed and
commissioned by Congress.
Sec. 7. Previous to the organization of the general assembly the
governor shall appoint such magistrates, and other civil officers, in
each county or township, as he shall find necessary for the preservation
of the peace and good order in the same. After the general assembly
shall be organized the powers and duties of magistrates and other civil
officers shall be regulated and defined by the said assembly; but all
magistrates and other civil officers, not herein otherwise directed,
shall, during the continuance of this temporary government, be appointed
by the governor.
Sec. 8. For the prevention of crimes and injuries, the laws to be
adopted or made shall have force in all parts of the district, and for
the execution of process, criminal and civil, the governor shall make
proper divisions thereof; and he shall proceed, from time to time, as
circumstances may require, to lay out the parts of the district in
which the Indian titles shall have been extinguished, into counties and
townships, subject, however, to such alterations as may thereafter be
made by the legislature.
Sec. 9. So soon as there shall be five thousand free male inhabitants,
of full age, in the district, upon giving proof thereof to the
governor, they shall receive authority, with time and place, to elect
representatives from their counties or townships, to represent them in
the general assembly: Provided, That for every five hundred free male
inhabitants there shall be one representative, and so on, progressively,
with the number of free male inhabitants, shall the right of
representation increase, until the number of representatives shall
amount to twenty-five; after which the number and proportion of
representatives shall be regulated by the legislature: Provided, That
no person be eligible or qualified to act as a representative, unless he
shall have been a citizen of one of the United States three years, and
be a resident in the district, or unless he shall have resided in the
district three years; and, in either case, shall likewise hold in his
own right, in fee-simple, two hundred acres of land within the same:
Provided also, That a freehold in fifty acres of land in the district,
having been a citizen of one of the States, and being resident in the
district, or the like freehold and two years' residence in the district,
shall be necessary to qualify a man as an elector of a representative.
Sec. 10. The representatives thus elected shall serve for the term of
two years; and in case of the death of a representative, or removal from
office, the governor shall issue a writ to the county or township, for
which he was a member, to elect another in his stead, to serve for the
residue of the term.
Sec. 11. The general assembly, or legislature, shall consist of the
governor, legislative council, and a house of representatives. The
legislative council shall consist of five members, to continue in office
five years, unless sooner removed by Congress; any three of whom to be a
quorum; and the members of the council shall be nominated and appointed
in the following manner, to wit: As soon as representatives shall be
elected the governor shall appoint a time and place for them to meet
together, and when met they shall nominate ten persons, resident in
the district, and each possessed of a freehold in five hundred acres of
land, and return their names to Congress, five of whom Congress shall
appoint and commission to serve as aforesaid; and whenever a vacancy
shall happen in the council, by death or removal from office, the house
of representatives shall nominate two persons, qualified as aforesaid,
for each vacancy, and return their names to Congress, one of whom
Congress shall appoint and commission for the residue of the term; and
every five years, four months at least before the expiration of the time
of service of the members of the council, the said house shall nominate
ten persons, qualified as aforesaid, and return their names to Congress,
five of whom Congress shall appoint and commission to serve as members
of the council five years, unless sooner removed. And the governor,
legislative council, and house of representatives shall have authority
to make laws in all cases for the good government of the district, not
repugnant to the principles and articles in this ordinance established
and declared. And all bills, having passed by a majority in the house,
and by a majority in the council, shall be referred to the governor for
his assent; but no bill, or legislative act whatever, shall be of any
force without his assent. The governor shall have power to convene,
prorogue, and dissolve the general assembly when, in his opinion, it
shall be expedient.
Sec. 12. The governor, judges, legislative council, secretary, and such
other officers as Congress shall appoint in the district, shall take an
oath or affirmation of fidelity, and of office; the governor before the
President of Congress, and all other officers before the governor. As
soon as a legislature shall be formed in the district, the council and
house assembled, in one room, shall have authority, by joint ballot, to
elect a delegate to Congress, who shall have a seat in Congress, with a
right of debating, but not of voting, during this temporary government.
Sec. 13. And for extending the fundamental principles of civil and
religious liberty, which form the basis whereon these republics,
their laws and constitutions, are erected; to fix and establish those
principles as the basis of all laws, constitutions, and governments,
which forever hereafter shall be formed in the said territory; to
provide, also, for the establishment of States, and permanent government
therein, and for their admission to a share in the Federal councils on
an equal footing with the original States, at as early periods as may be
consistent with the general interest:
Sec. 14. It is hereby ordained and declared, by the authority aforesaid,
that the following articles shall be considered as articles of compact,
between the original States and the people and States in the said
territory, and forever remain unalterable, unless by common consent, to
wit:
ARTICLE I.
No person, demeaning himself in a peaceable and orderly manner, shall
ever be molested on account of his mode of worship, or religious
sentiments, in the said territories.
ARTICLE II.
The inhabitants of the said territory shall always be entitled to the
benefits of the writs of habeas corpus, and of the trial by jury; of a
propo[r]tionate representation of the people in the legislature, and
of judicial proceedings according to the course of the common law. All
persons shall be bailable, unless for capital offences, where the proof
shall be evident, or the presumption great. All fines shall be moderate;
and no cruel or unusual punishments shall be inflicted. No man shall be
deprived of his liberty or property, but by the judgment of his peers,
or the law of the land, and should the public exigencies make it
necessary, for the common preservation, to take any person's property,
or to demand his particular services, full compensation shall be made
for the same. 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.
ARTICLE III.
Religion, morality, and knowledge being necessary to good government
and the happiness of mankind, schools and the means of education shall
forever be encouraged. The utmost good faith shall always be observed
towards the Indians; their lands and property shall never be taken from
them without their consent; and in their property, rights, and liberty
they never shall be invaded or disturbed, unless in just and lawful wars
authorized by Congress; but laws founded in justice and humanity shall,
from time to time, be made, for preventing wrongs being done to them,
and for preserving peace and friendship with them.
ARTICLE IV.
The said territory, and the States which may be formed therein, shall
forever remain a part of this confederacy of the United States
of America, subject to the Articles of Confederation, and to such
alterations therein as shall be constitutionally made; and to all
the acts and ordinances of the United States in Congress assembled,
conformable thereto. The inhabitants and settlers in the said territory
shall be subject to pay a part of the Federal debts, contracted, or to
be contracted, and a proportional part of the expenses of government to
be apportioned on them by Congress, according to the same common rule
and measure by which apportionments thereof shall be made on the other
States; and the taxes for paying their proportion shall be laid and
levied by the authority and direction of the legislatures of the
district, or districts, or new States, as in the original States, within
the time agreed upon by the United States in Congress assembled. The
legislatures of those districts, or new States, shall never interfere
with the primary disposal of the soil by the United States in Congress
assembled, nor with any regulations Congress may find necessary for
securing the title in such soil to the bona-fide purchasers. No tax
shall be imposed on lands the property of the United States; and in no
case shall non-resident proprietors be taxed higher than residents. The
navigable waters leading into the Mississippi and Saint Lawrence, and
the carrying places between the same, shall be common highways, and
forever free, as well to the inhabitants of the said territory as to the
citizens of the United States, and those of any other States that may
be admitted into the confederacy, without any tax, impost, or duty
therefor.
ARTICLE V.
There shall be formed in the said territory not less than three nor more
than five States; and the boundaries of the States, as soon as Virginia
shall alter her act of cession and consent to the same, shall become
fixed and established as follows, to wit: The western State, in the said
territory, shall be bounded by the Mississippi, the Ohio, and the Wabash
Rivers; a direct line drawn from the Wabash and Post Vincents, due
north, to the territorial line between the United States and Canada; and
by the said territorial line to the Lake of the Woods and Mississippi.
The middle State shall be bounded by the said direct line, the Wabash
from Post Vincents to the Ohio, by the Ohio, by a direct line drawn due
north from the mouth of the Great Miami to the said territorial line,
and by the said territorial line. The eastern State shall be bounded
by the last-mentioned direct line, the Ohio, Pennsylvania, and the said
territorial line: Provided, however, And it is further understood and
declared, that the boundaries of these three States shall be subject so
far to be altered, that, if Congress shall hereafter find it expedient,
they shall have authority to form one or two States in that part of the
said territory which lies north of an east and west line drawn through
the southerly bend or extreme of Lake Michigan. And whenever any of the
said States shall have sixty thousand free inhabitants therein, such
State shall be admitted, by its delegates, into the Congress of the
United States, on an equal footing with the original States, in
all respects whatever; and shall be at liberty to form a permanent
constitution and State government: Provided, The constitution and
government, so to be formed, shall be republican, and in conformity to
the principles contained in these articles, and, so far as it can be
consistent with the general interest of the confederacy, such admission
shall be allowed at an earlier period, and when there may be a less
number of free inhabitants in the State than sixty thousand.
ARTICLE VI.
There shall be neither slavery nor involuntary servitude in the said
territory, otherwise than in the punishment of crimes, whereof the
party shall have been duly convicted: Provided always, That any person
escaping into the same, from whom labor or service is lawfully claimed
in any one of the original States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or
service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the
23d of April, 1784, relative to the subject of this ordinance, be, and
the same are hereby, repealed, and declared null and void.
Done by the United States, in Congress assembled, the 13th day of July,
in the year of our Lord 1787, and of their sovereignty and independence
the twelfth.
CONSTITUTION OF THE UNITED STATES--1787.
We the people of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defense, promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and establish this
constitution for the United States of America.
ARTICLE I.
Section. 1. All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House
of Representatives.