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American Political History
1763*1876
By ALEXANDER JOHNSTON
Edited and Supplemented by James Albert Woodburn,
Professor of History and Political Science,
Indiana University
In Two Volumes. Octavo (Each complete in itself and indexed)
1. The Revolution, the Constitution, and the
Growth of Nationality. 1 763- 1 832
2. The Slavery Controversy, Secession, Civil
War, and Reconstruction. 1820-1876
American Political History
1763-1876
BY
ALEXANDER JOHNSTON
EDITED AND SUPPLEMENTED BY
JAMES ALBERT WOODBURN
PROFESSOR OF AMERICAN HISTORY AND POLITICS INDIANA UNIVERSITY
IN TWO PARTS
THE REVOLUTION, THE CONSTITUTION, AND THE GROWTH OF NATIONALITY, 1 763-1832
G. P. PUTNAM'S SONS
NEW YORK AND LONDON
Gbe "Knickerbocker press
1905
99Q7Q6A
Copyright, 1905
BY
G. P. PUTNAM'S SONS
Ubc Itnlcfccrbocftcr press, Hew Koch
PREFACE
THESE volumes have been prepared to present in more convenient form for present reference the series of articles on "American Political History," con- tributed to Lalor's Cyclopaedia of Political Science, Political Economy, a?id Political History, by the late Professor Alexander Johnston. Lalor's Cyclopaedia has, since its first publication a quarter of a century back, been recog- nized by teachers and students as the most valuable com- pendium of information on the various subject matters considered. The task of preparing the whole series of articles relating to the various divisions of the political history of the United States was placed by the editors in the hands of one contributor, Professor Alexander John- ston, of Princeton University. During the quarter of the century that has elapsed since the first publication of these papers, they have been constantly referred to and drawn upon by the teachers and students of the subject. The articles, while presented under different headings, are characterized by a specific unity of purpose and of plan. The series taken together presents a substantially complete outline of the political history of the Republic, while certain of the more important phases of this history are presented with a detail of information and of refer- ence that it would be difficult to find within the same compass elsewhere.
The untimely death of Professor Johnston in 1889, at the early age of forty, was a serious loss to historical study and teaching in America. His several volumes — A
iii
38X1084
iv Preface
Brief History of American Politics, Connecticut : A Study of a Commonwealth-Democracy, History of the United States for Schools, and The United States, Its History and Constitution (the latter reprinted from the Cyclopaedia Britannicd) — secured for their author a high reputation as an authority on the several subject matters and as a writer who had an exceptional capacity for well-proportioned and effective presentation of any subject. More com- prehensive and (in the judgment of the editor of the present series) more permanently valuable, however, than any of these works were the contributions prepared by Professor Johnston for the Lalor Cyclopaedia, under the general heading of "American History." The con- clusions and suggestions presented in this series of papers have been found to possess continued value for readers and students of the twentieth century, and the editor does not find that their text calls at this time for any ma- terial changes.
The editor of the present volumes has attempted so to arrange, connect, and supplement these papers as to pre- sent in a compact but readable narrative a consecutive political history of the United States from the opening of the American Revolution to the close of the period of reconstruction.
The chapter-subjects in the table of contents indicate the material selected. These papers deal with the more important epochs and distinctive features in the develop- ment of the nation. For certain articles, it has been found desirable, in order to make the proper connection between the several papers of the series and to bring the record down to date, to add new material, and in a few of the chapters the amount of such new material is con- siderable. No changes have, however, been attempted in the conclusions and suggestions of the original author, and the new material will be found to be fully in harmony with the character of the original papers.
Preface v
The introductory chapter and the chapter on the "Monroe Doctrine " are the work of the present editor.
The article on "Tariffs in the United States," originally contributed to the Lalor Cyclopaedia by Mr. Worthington C. Ford, has, with the courteous permission of the author and of the publishers of the Cyclopaedia, been included in this volume in the chapter on the "American System."
The papers from Lalor's Cyclopaedia are reprinted in the present volumes under arrangement with the present owners of the Cyclopaedia, Messrs. Maynard, Merrill & Co., whose courtesy is hereby acknowledged.
It is believed by the publishers and the editors of the present work that readers and students of American his- tory will appreciate the service that has been rendered in putting into the form of a continuous narrative these distinctive contributions of Professor Johnston.
J. A. W.
Indiana University, Bloomington, Ind., February n, 1905.
CONTENTS
PAGE
Preface m
CHAPTER I Introduction l
CHAPTER II The American Revolution 8
CHAPTER III
The Continental Congress: Independence and
the Beginnings of the Union .... 28
CHAPTER IV The Old Confederation, 1781-1787 ... 57
CHAPTER V The Convention of 1787 7°
CHAPTER VI The Territories and the Ordinance of 1787 . 83
CHAPTER VII
The Organization of the New Government; Ham- ilton's Financial Measures .... 106
vii
viii Contents
CHAPTER VIII
PAGE
Foreign Affairs under Washington . . . 131
CHAPTER IX John Adams and the Breach with France . . 162
CHAPTER X
The Alien and Sedition Laws; The Virginia and
Kentucky Resolutions 181
CHAPTER XI Early Political Parties, 1789-1801 . . . 203
CHAPTER XII
The Second Period of Party History; or, The
Decline of the Federalists .... 237
CHAPTER XIII
Jeffersonian Democracy and Expansion ; Louisi- ana and Florida 253
CHAPTER XIV The Judiciary 270
CHAPTER XV
The Struggle for Neutral Rights: Causes and
Results of the War of 181 2 . . . . 288
CHAPTER XVI The Monroe Doctrine 324
CHAPTER XVII
The American System: Internal Improvements
and the Tariff 341
Contents ix
CHAPTER XVIII
PAGE
Jackson and the Bank 393
CHAPTER XIX Calhoun and Nullification 421
The Revolution and the Constitution
1763-1800
American Political History
CHAPTER I
INTRODUCTION
IT is the purpose of these volumes to present the principal features in the political history of the United States from the opening of the American Revolution to the close of the Era of Reconstruction. As an introduction to the beginnings of the Revolution the attention of the student may properly be directed to the final result of nearly a century of conflict between England and France for em- pire in America.
American colonial history may be said to have ended with 1763, the date of the famous Treaty of Paris closing the Seven Years' War. This war ended the long struggle between England and France over their American claims and dominions. The treaty which closed the war was one of the most important in its effects on the state life of Europe since that of Westphalia established the balance of modern Europe. It marked an epoch in history, a turning point, not only in the history of America, but in the history of the world. ' ' Three of the many victories of the Seven Years' War," says Green, in his History of the EnglisJi People, "determined for ages to come the
VOL. I. — I. T
2 The Revolution and the Constitution
destinies of mankind." Quebec was one of these three victories, and "with Wolfe's triumph at Quebec began the history of the United States." '
By the conclusions of this famous Seven Years' War, Austria was compelled to accept an equal rival in the affairs of the German states. Prussia was advanced, by the successes of Frederick the Great, to a high rank among the nations; the Hohenzollerns became the equal rivals of the Hapsburgs, and German unity began under Protestant leadership, and it has been said that the scene then opened which closed at Sadowa and Sedan, in 1866 and 1871.
The war brought France deep humiliation. "Dupleix and Montcalm had aimed at building up an empire which would have lifted France high above her European rivals. The ruin of these hopes in the Seven Years' War was the bitterest humiliation to which French ambition had ever bowed." Green here expresses an obvious historical con- clusion ; because by this war France lost her merchant and military marine and was compelled to surrender her American claims and possessions. She surrendered Canada to England and Louisiana to Spain and retired from the American continent.
Another result of the war was the splendid and im- perial advancement of Great Britain. By the achieve- ments of this war Pitt had established England's world empire. After this war it might be said for the first time that the sun never set upon England's dominions. The war gave to Britain India, America, and the mastery of the sea. Frederick the Great said: "The war began over a few miserable huts and by it England gained two thousand leagues of territory and humanity lost a million of men."
It was this war, from 1756 to 1763, that finally estab-
1 Frederick the Great's victory at Rossbach and Clive's at Plassy were the other two victories referred to by Green.
Introduction 3
lished the British power on the American continent. In the territorial readjustment following the war, (i) Canada passed from France to Britain, (2) Florida passed from Spain to Britain, and (3) Louisiana (west of the Missis- sippi) and the island of New Orleans passed from France to Spain, while the part of Louisiana east of the Missis- sippi— in general, the eastern Mississippi valley — passed from France to England. This brought all eastern America, the valleys of the St. Lawrence and the Missis- sippi, and the region of the Lakes, under English con- trol. As to the American Colonies, therefore, France had departed from their north side and Spain from their south side, and the colonists "were no longer between the upper and the nether millstone." "America was English. By removing an enemy whose dread had knit the colonists to the mother country, and by breaking through the line with which France had barred them from the basin of the Mississippi Pitt had laid the foundation of the Great Republic of the West." '
The French scheme, by which the English were to be barred from the basin of the Mississippi, was to connect the mouths of the two great rivers, the St. Lawrence and the Mississippi, by a line of forts and garrisons at strategic points, on the Lakes, the Ohio, the Wabash, and the Illinois, — and thus establish connection, communication, and defence. If this design had not been defeated by the English victories of the Seven Years' War, a New France instead of a New England might have dominated North America.
At the close of the seventeenth century France was at the zenith of her power. It was the age of Louis XIV. In a wonderful array of great names produced in a half- century of that exceptional reign none stands higher for distinguished services to the state than the name of Colbert. No statesman of his day did more for the
1 Green, History of the English People, Ch. on America.
4 The Revolution and the Constitution
expansion of his nation than Colbert. He was the great colonizer of France. By his far-sighted and sagacious plans the French navy was increased, the revenues were saved from waste and corruption, and the colonizing ex- peditions of Frontenac, Marquette, Joliet, and La Salle were liberally sustained for the upbuilding of New France in the New World. Largely through Colbert's influence and statesmanship the French, by 1690, besides their well-grounded hope of empire in India and their power in Cayenne and the West Indies, had in North America, Canada, Cape Breton, the fishing banks of Newfound- land, the mouths of the Mississippi and St. Lawrence, and inland Louisiana. "France held America by its two ends, the mouths of its great rivers," as Duruy, the French historian, expresses it. The reflective historian of that day might well have concluded that America was to become French.
In this time of promise for the French power, at the close of the seventeenth century, the thirteen English Colonies in America (except Georgia, settled in 1732) had been well established, with common institutions and common laws. They were in process of slow and hardy development. The dominant fact in their history for the first half of the eighteenth century was their struggle in support of the mother country for their territorial rights and possessions. This struggle from 1690, when France seemed so dominant, to 1763, when France finally retired from the continent of North America, is to be regarded as a single struggle, to be studied as a single movement. Let us notice the respective claims of Britain and France and the foundations upon which they rested.
The Treaty of St. Germain (1632) had recognized the French as in possession of the St. Lawrence, and of Nova Scotia and New Brunswick, substantially as described at present on our maps. In 1697 Iberville had settled lower Louisiana. The explorations of Marquette, Joliet, and
Introduction 5
La Salle gave claim to the basin of the Mississippi. Cartier and Champlain had prepared for French claims and ownership in the regions of the lower St. Lawrence. By 1700 military connection between these regions had been designed, and in a measure accomplished, and this was supposed to guarantee French possession.
As for the English, they were to be hemmed in on the Atlantic coast east of the Alleghanies. Their claim was both ancient and extensive. Originally based on the discovery of the Cabots, the English claims had been re- asserted in their early charters, and they were generally made to extend along the coast from Maine to Georgia "up into the land west and northwest from sea to sea." But of these vast claims the British had realized compara- tively little by actual possession.
" On the maps of British America in the early part of the eighteenth century," says Parkman, "one sees the eastern shore from Maine to Georgia garnished with ten or twelve colored patches very different in shape and size and more or less distinctly defined. These colonies had indefinite claims westward to the Pacific, claims to vast interior tracts, founded on ancient grants, but not made good by occupation, or vindi- cated by any exertion of power."
These little English Colonies on the Atlantic were living separate lives, each a life of its own. It was difficult for them to unite in any common endeavor. They were not conscious of any common aims and interests, and their appreciation of the great West, and its possibilities and importance to them, was meagre indeed. On the other hand, the French power in America represented enter- prise, ambition, and adventure. Great minds among them had explored and had come to appreciate the prize that was at stake. "The English colonies were strong in numbers, but their numbers could not be brought into action. The French forces were small, but they were
6 The Revolution and the Constitution
vigorously commanded and were always ready at a word. It was union confronting disunion, energy confronting apathy, military centralization opposed to industrial de- mocracy ; and for a time the advantage was all on one side." ' When the Anglo-Saxon frontier line moved westward according to natural laws and came in contact with the French forts on the upper Ohio, the conflict be- tween these two forces was inevitable. The issue of the conflict was doubtful until Wolfe's great triumph at Quebec in 1759.
This half-century of conflict, which Parkman has so brilliantly described and which we have spoken of as a single movement, has generally been described in Ameri- can history under four distinct inter-colonial wars :
(1) King William's War, from 1689 to the peace of Ryswick in 1697. (2) Queen Anne's War, from 1702 to the peace of Utrecht in 1713, or the "War of the Spanish Succession." (3) King George's War, from 1745 to the peace of Aix-la-Chapelle, in 1748 (preceded by the Span- ish War of 1739 over the right of search in the Spanish Main and over the disputed boundary between Spanish Florida and English Georgia). (4) The French and In- dian War, or the Seven Years' War, from 1756 to the famous peace of Paris in 1763.
The treaties prior to 1763 left great disputes unsettled. As far as American disputes were concerned, the treaty of Ryswick (1697) and that of Aix-la-Chapelle (1748) were mere truces, providing only for restoration of conquests and cessation of hostilities. At Utrecht (17 13) the French made some important concessions to the British, includ- ing the Hudson Bay country and "Acadia with its ancient limits." But the "ancient limits of Acadia " were not de- fined; the boundary line, and the control of the Indian country, between French Canada on the north and the English Colonies on the south, were left unsettled ; and
'Parkman, Hal] "-Century of Conflict, vol. ii.( p. 65.
Introduction 7
the great question as to which power should control the basin of the Mississippi had to be adjusted by the final war of 1756 to 1763.
This final conflict for possession by the English race, which came to so favorable a conclusion in 1763, prepared the way for the American Revolution in several ways. It afforded the colonists military training and service. Washington and many of his subordinate officers of the Revolution received important experience in the struggle of the British against the French. It united the Colonies in closer friendship and mutual helpfulness. The effort of Franklin for a constitutional union in 1754 had not been without its moral effect, and the experiences of the war had emphasized the wisdom of his suggestions. The war had released the Colonies from dread of the French and the Spanish, and had led them to feel their own strength and to believe in their own great future. By leading to westward expansion the same conflict that had been inevitable between the French and the English was to be realized between the Colonies and the mother country. After the security of the American colonies and their progress in commerce and wealth had been as- sured, by the successes of the British arms and by the self-reliance manifested by the Colonies in this war, the British Ministry were led to adopt the fatal policy which led to the political schism of the English race. Gren- ville's Ministry resolved to enforce the trade laws, to quarter troops in the Colonies for their security, and to tax America for imperial purposes. By the introduction of this policy the controversy of the American Revolution began, a controversy that ended, in the forum, with the Declaration of Independence which proclaimed "that a new nation had arisen in the world, and that the political unity of the English race was forever at an end."
J. A. W.
CHAPTER II
THE AMERICAN REVOLUTION
PRIOR to 1760 the constitutional relation of the Colo- nies to the mother country and the powers of Parlia- ment over the Colonies were unsettled and undefined. The imperial development of the British Constitution was for centuries very steady. The first strain upon it came from the conquest of Ireland. Wales and Scotland were tacitly or formally absorbed in the kingdom of Great Britain, in which the Parliament had fairly defined rights: Ireland remained a foreign and allied or subject kingdom, in which the British Parliament had all the rights which it could succeed in maintaining. The result was the genesis of the idea that the British Parliament was in some sense an imperial Parliament, with undefined power to legislate for those portions of the Empire which were outside of its original jurisdiction.
English colonization in America brought with it a far more severe strain, for which the British Constitution was totally unprepared, A new order of things, the indefinite extension of the Empire, was to be provided for; and un- fortunately the task of providing for it was assumed by a legislative body whose constituents and members were equally purchasable in open market, and were equally indifferent to any consideration except present interest. To these the grand idea of an imperial Parliament, clothed by the lofty patriotism of Burke and Chatham in language well worthy of it, meant only the opportunity
The American Revolution 9
to escape part of the burden of present taxation by trans- ferring it to the Colonies. They undertook to make an every-day matter of that which Burke and Chatham would have reserved to meet some overmastering emer- gency ; and they lost the Colonies.
The English colonists in America always insisted that they had lost none of their hereditary rights by migrating from the king's British to the king's American dominions, and that they were still entitled to the "free privileges of free-born Englishmen," which the king's word had con- firmed to their fathers and to them, — the right to personal liberty, to private property, and to representation in the taxing body. They acknowledged that distance made it practically impossible for them to be represented in Parliament ; and they therefore insisted that their taxes must be levied by their own parliaments, the colonial assemblies. Two irreconcilable theories of the Constitu- tion were thus gradually developed in Great Britain and in America; and, after 1760, circumstances brought them face to face, and compelled a settlement by force.
The American Theory. — The American theory really made the Empire a confederation, the king being the bond of union. In his kingdom of Great Britain the king had certain prerogatives, such as the power to make peace, war, and treaties; while Parliament alone had the power to grant or withhold supplies and to levy taxes to provide them. In his other kingdoms, Ireland, New York, Massachusetts, or South Carolina, the respective parliaments had just as much power, and the king just the same prerogatives, as in Great Britain. But in each kingdom the jurisdiction of the Parliament was terri- torially limited: the Parliament of Great Britain had no more rightful jurisdiction in Ireland or in Massachusetts than the parliaments of Ireland or Massachusetts had in Great Britain. Franklin formulates the theory as follows :
io The Revolution and the Constitution
" Our kings have ever had dominions not subject to the English Parliament.
"At first the provinces of France, of which Jersey and Guernsey remain, always governed by their own laws, appeal- ing to the king in council only, and not to our courts or the house of lords. Scotland was in the same situation before the union. It had the same king, but a separate Parliament, and the Parliament of England had no jurisdiction over it. Ire- land the same in truth, though the British Parliament has usurped a dominion over it. The colonies were originally settled in the idea of such extrinsic dominions of the king, and of the king only. Hanover is now such a dominion. America is not part of the dominions of England, but of the king's dominions. England is a dominion itself, and has no dominions. . . . Their only bond of union is the king. . . . The British legislature are undoubtedly the only proper judges of what concerns the welfare of that state; the Irish legislature are the proper judges of what concerns the Irish state; and the American legislatures of what concerns the American states respectively."
The Americans felt that the words "colony " and "colo- nist " were themselves misleading, as importing some superiority of privileges in the Englishmen who had re- mained at home; and they maintained that every charter granted by the king was a compact between him and the people of a new kingdom.
The British Theory. — On the contrary, the whole feel- ing of Great Britain spoke in Grenville's pithy statement that "colonies are only settlements made in distant parts of the world for the improvement of trade, and that they would be intolerable except on the conditions contained in the acts of navigation." The colonists, then, did not escape from the jurisdiction of Parliament by migrating. Parliament might allow them a temporary latitude of self-government; but its absolute power, though latent, could be called forth at any moment, and the colonists,
The American Revolution n
in the view of the law, were still Englishmen and under control of the British Parliament.
This theory was maintained on the grounds, I, that the omnipotence of Parliament was not limited by the four seas which bounded Great Britain ; but that, by the extension of the Empire, Parliament had acquired a nobler position as an imperial body, with, as Burke expresses it, "a reserved power in the Empire to supply any deficiency that may weaken, divide, and dissipate the whole"; 2, that the Colonies were "virtually represented" in Parlia- ment, since each member of that body represented not a particular constituency, but the whole Empire and all its interests; 3, that the colonists had no more claim to a more direct representation than Birmingham, Manchester, Leeds, and other unrepresented cities, but must be con- tent with the Constitution as it was ; 4, that it was patently unjust that the expensive duty of maintaining fleets and armies for the defence of the whole Empire should be im- posed upon the imperial Parliament without the corre- sponding right to insure proportional contributions from the parts of the Empire; and 5, that the colonists them- selves had always acknowledged the right of Parliament to levy American customs duties, from which the right to levy internal taxes could not logically be distinguished. This last assertion could not be disputed, and when it was seriously advanced as an argument it put an end to the tacit compromise which will next be considered.
Compromise. — It will readily be perceived that these two theories were irreconcilable, and that both were equally impracticable. On the American theory it would have required superhuman tact and discretion in the king to avoid constant and ultimately fatal conflicts with his twenty different parliaments ; on the British theory, the Parliament would have become, under the guise of imperialism, an exasperating instrument of British sel- fishness. The American Union has solved its similar
12 The Revolution and the Constitution
territorial problem by giving Congress the imperial power over the territories, while holding out to the latter the promise of admission to the National Govern- ment as soon as they shall develop the necessary powers and interests.1 Until 1760 the Colonies and the mother country lived under a tacit compromise of a far clumsier sort. The home Government made no attempt to assert any power to levy taxes within the limits of the Colonies; these were levied by the colonial assemblies, on a requisition, or request, from the king, through one of his secretaries or the governor. The supplies voted were always liberal, and sometimes so lavish that Parliament voted to return a part of them. On the other hand, the Colonies made no objection to the exercise by Parliament of complete control over foreign trade, and in many cases over domestic trade also ; and no resistance was made to the abrogation or alteration of the Massa- chusetts charter in 1685, 1691, and 1724. The navigation act of 165 1 confined the colonial export trade to Great Britain in English-built ships; and in 1663 this was ex- tended to the import trade also, so that the colonies could legally trade only to and from Great Britain. In the commercial colonies, however, these laws were felt but little before 1760; smuggling and bribery of custom- house officers opened the free foreign trade which the laws forbade. In 1672 duties were imposed on the trade from one colony to another. In 1699 the colonists were prohibited from exporting their wool, yarn, or woollen manufactures to any place whatever. In 1719 the House of Commons formally condemned all American manu- factures as tending to independence. In 1732 the export of American hats was prohibited. In 1750, rolling mills, iron furnaces, and forges in the colonies were declared public nuisances, to be suppressed by the governors. At first all these restrictions were submitted to, partly from
1 See Ordinance of 1787.
The American Revolution 13
indifference, as they were not extensively felt, and partly from inability to resist; and for some years after 1760 the right of Parliament to impose them was still acknow- ledged, this being a point on which the colonists were prepared to yield. So late as 1774, Congress, in its Declaration of Rights, "cheerfully consented" to such Parliamentary restrictions on commerce as should be in- tended in good faith to benefit the whole Empire. When it was at last found that this concession was only accepted as a basis for further demands, it was withdrawn, and all the colonists were ready to echo Franklin's language: "That is a wicked guardian and a shameless one, who first takes advantage of the weakness incident to minority, cheats and imposes on his pupil, and, when the pupil comes of age, urges those very impositions as precedents to justify continuing them and adding others." This language, though natural, was to a great extent unjust. The fault really lay in that narrow colonial system which was then and long afterward the law of every European nation, and is still a part of the English theory, though it is very seldom enforced in practice.
The open struggle between the two theories, which began in 1760-63, came from an unlucky combination of causes : the accession of a king who was determined to "reign"; the influence of the old Whig notion of the omnipotence of Parliament ; the high feeling of a nation flushed with successful foreign war; the in- crease of the national debt, and the consequent neces- sity of an increase in the revenue; the increase of wealth in the American Colonies, and the comparative meagre- ness of receipts from that quarter of the Empire. The initiation of the struggle was facilitated by the fact that there was practically no denial in Great Britain of the ab- stract right to tax the Colonies. Even when the Stamp Act was introduced in Parliament, the opposition was publicly challenged to make such denial, and not a voice
14 The Revolution and the Constitution
was raised to make it, though many, like Burke, con- sidered it highly impolitic to exercise the right, and wished to restrain the controlling power of Parliament to commercial regulations and to cases of supreme necessity. This, indeed, was the original ground of the colonists themselves, but it was a poor barrier to the usurpations of a hungry Parliament.
In 1760 the first effort was made to enforce the Naviga- tion Act. Instructions were sent to the American custom- house officers to spare nothing of the revenue laws, and to obtain from the courts "writs of assistance " in order to enter houses and stores and search for goods which had not paid duty or were forbidden to be imported. The first application for such writs was at Salem, in No- vember, 1760, and their issue and enforcement at once brought a few radical men, like Otis, to deny Parliament's right to levy the duties. In the great commercial colony, Massachusetts, colonial and loyalist parties were at once formed. The former was headed by James Otis, Samuel Adams, John Adams, Oxenbridge Thacher, James Bow- doin (afterward Governor), and Thomas Cushing. The latter was headed by Francis Bernard, the Governor; Thomas Hutchinson, the Lieutenant-Governor, a native and the best historian of Massachusetts, the ablest royalist leader, but unscrupulous in method ; Andrew Oliver, Hutchinson's brother-in-law; Jeremiah Gridley, Attorney- General, and Timothy Ruggles. Behind these stood the great mass of royal office-holders in the Colonies; much of the subsequent action of the ministries must be attrib- uted to their persistent advice to establish a regular army in the Colonies, and tax the Colonies for its support.
February 23, 1763, Charles Townshend became First Lord of Trade, with the administration of the Colonies and he inaugurated, with the support of the Ministry, the new system of colonial government. It was an- nounced by authority that there were to be no more
The American Revolution 15
requisitions from the king to the colonial assemblies for supplies, but that the Colonies were to be taxed by act of Parliament. Colonial governors and judges were to be paid by the Crown ; they were to be supported by a stand- ing army of twenty regiments ; and all the expenses of this force were to be paid by Parliamentary taxation. It is un- necessary to follow all the windings of British politics for the next few years : the above programme was the chart of all the ministries, which each followed as closely as it dared. Governor Hutchinson tells us that the American use of the terms Whig and Tory dates from this step.
In March the naval officers on the American coast were given the duties and fees of custom-house officers, in order to enforce the Navigation Acts. In April the head of the Ministry, Bute, retired, and George Grenville took his place under pledge to the programme above. May 5th, the Lords of Trade were requested to sketch for the Ministry a safe and easy method of Parliamentary taxa- tion of the Colonies, but Shelburne, the head of the board of trade, declined to commit himself to any plan. Sep- tember 23d, by direction of Grenville and North, the First Secretary of the Treasury (Jenkinson) wrote to the com- missioners of stamp duties to draft a bill for extending the stamp duties to the Colonies. Close investigation has failed to fix the real authorship of the Stamp Act, but the responsibility for it rests most probably on Jenkinson. March 9, 1764, Grenville announced that he intended to introduce the Stamp Act at the next session; and in the meantime he suggested to the colonial agents in London that their assemblies should formally approve it, in order to make a precedent for their being consulted in future taxation, or that they should propose some more palatable mode of Parliamentary taxation. But the principle was carefully asserted: a bill of April 5th purported, for the first time, to "grant duties in the colonies and plantations of America."
1 6 The Revolution and the Constitution
The stamp duty was not objected to in itself: it was a convenient mode of making a tax collect itself, and for that reason was employed in 1759 by the Massachusetts Assembly, and in subsequent years by the new Federal Government. The objection lay wholly to Parliament's power to tax, which was thus forced into the foreground of discussion. In June the Massachusetts Assembly sent a circular letter asking the "united assistance" of the other Colonies; and during the year nearly all the colonial assemblies petitioned against the new scheme. But the idea of forcible resistance does not seem to have occurred to the King, to the Ministry, to Parliament, to the colonial agents, or to the colonial assemblies. All believed that the tax would execute itself. The act was framed, im- posing stamp duties on legal documents, marriage licenses, and publications of every description, and making offenses against it cognizable in the admiralty courts, without a jury. Petitions against it were refused a hearing, on ac- count of an ancient and convenient rule forbidding the reception of petitions against a money bill. The bill was passed with hardly any opposition in either House; the King was by this time a lunatic, and his signature was attached by a commission ; and with this evil augury the Stamp Act became law, March 22, 1765. With it went a suggestive act to authorize the quartering of troops in the Colonies, and to require the assemblies to furnish them with subsistence.
The first answer came from the Virginia Assembly, which adopted a series of resolutions offered by Patrick Henry, May 30th. These declared that the Colony had never forfeited and had always enjoyed the right to be taxed by their own representatives; but the Assembly rejected two further resolutions, declaring that the people of the Colony were not bound to obey the Stamp Act, and that he who should obey it would be an enemy to the Colony. June 8th, the Massachusetts Assembly took
The American Revolution 17
the more important step of calling a congress of all the Colonies.1 Through the summer the resistance took the form of an inchoate revolution. Associations, the "Sons of Liberty," were formed; stamp agents were compelled to resign, either by ostracism, or, in some few cases, by actual violence; and the inflammatory resolutions of pub- lic meetings were steadily carrying the assemblies to the point of resistance. November i, 1765, was the day fixed for the operations of the act to begin ; but there were by that time neither stamps nor stamp agents in the Colo- nies, and the judges, like the merchants, were compelled to ignore the absence of stamps upon documents. Hutch- inson wrote home that the people were "absolutely with- out the use of reason."
In the meantime the opponents of the policy of taxing the Colonies had come into power, under the Rockingham Ministry, in July, 1765. Their first design was not to repeal, but to modify the act, and make it more accept- able. But when Parliament met, its right to tax the Colonies was at last denied by some of its own members, though even these still asserted its power to lay duties and regulate trade. Said Pitt: "In an American tax, what do we do? We, your Majesty's commons of Great Britain, give and grant to your Majesty — what? Our own property? No ! We give and grant to your Majesty the property of your Majesty's commons in America. It is an absurdity in terms" ; and he "rejoiced that America had resisted." The majority, however, followed the ministerial programme. The reception of the petitions of the American Congress was evaded. A declaratory House resolution was passed, February 10, 1766, by almost unanimous vote, that the King, with the advice and con- sent of Parliament, "had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient validity to bind the Colonies and people of 1 See Stamp Act Congress.
1 8 The Revolution and the Constitution
America, subjects of Great Britain, in all cases whatso- ever." This was followed up by four others: that there had been tumults and insurrections in the Colonies; that these had been encouraged by the colonial assemblies; that the assemblies must make recompense for property destroyed; and that the House would sustain the lawful authority of the Crown and the rights of Parliament, and would favor and protect the loyal people of the Colonies. Under cover of this hot fire of resolutions the Stamp Act was repealed, March 18th. The repeal was wholly on the ground of policy, and was accompanied by a declara- tory act in two clauses: I, containing the first resolution above named ; and 2, declaring null and void the votes and resolutions of the colonial assemblies in regard to taxation. One of the most valuable incidents in the re- peal was the examination of Franklin before the House of Commons, February 13th. The questions put to him numbered 174; and his answers sum up calmly, but fully, the American theory of the connection between Great Britain and the Colonies, and the compromise to which the Americans were willing to agree.
Hutchinson dates the revolt of the Colonies from the repeal of the Stamp Act. As soon as the re- joicings over that event had subsided, premonitory symptoms of trouble again began to appear. The Massa- chusetts Assembly refused to make recompense for the losses in the riots without an accompanying bill of in- demnity. Other assemblies refused to comply with the act of 1765 for billeting and subsisting the army. In November, 1766, the first declaration that Parliament had no right to "legislate" for the Colonies was made in the Massachusetts Assembly; and there was a growing party everywhere which held to the advanced doctrine of ' ' no legislation without representation. ' ' And all this time political events in Great Britain were tending against the Colonies. In July, 1766, Chatham had formed a ministry
The American Revolution 19
composed mainly of friends of America; but Chatham's continued illness was steadily throwing the real leadership into the hands of the Chancellor of the Exchequer, Charles Townshend. His political creed he summed up as follows: "I would govern the Americans as subjects of Great Britain. These, our children, must not make themselves our allies in time of war, and our rivals in peace." In March, 1767, Chatham really, though not formally, retired from public affairs, and Townshend was master of the situation. He made use now of the Parlia- mentary control over commerce, which colonial assemblies had so often expressly acknowledged; and in July a bill was passed granting duties in America on glass, lead, paints, paper, and tea. But the insidiously perilous feature of the act was, that the proceeds were to go into the exchequer, and were to be distributed at the King's pleasure in paying the salaries of governors, judges, and other civil officers. These would thus be, as they had never been before, completely independent of the Ameri- can assemblies, and not only able but willing to make political war upon them. By other acts, writs of assist- ance were legalized, and the New York Assembly was suspended altogether, until it should obey the billeting act. In September, Townshend died, but his mantle fell on Lord North, his successor.
It was difficult, at first, to find any means of opposition to the new revenue laws. Isolated agreements were in- deed made by the people of various districts, to abstain from the use of any of the articles taxed ; but these, de- pending on the persistence of individuals, were no safe reliance. January 12, 1768, the Massachusetts Assembly formally protested against the new system ; and February 1 ith, it sent a circular letter to the other Colonies, asking advice. April 21st, the colonial office sent a mandate to each of the governors to prorogue the Assembly of his Colony rather than allow the circular letter to be
20 The Revolution and the Constitution
discussed. To Massachusetts further orders were sent to prorogue the Assembly if it should not recant the letter, and to continue the process indefinitely until submission should be made; and in June this penalty was enforced. June 8th, four regiments under Gage were ordered to Boston permanently ; five vessels took possession of the harbor; and the fort was repaired and occupied. Every petty disturbance, every expression of popular indigna- tion, had been magnified and distorted by colonial officers, until the Ministry really believed a rebellion imminent, and took this sure means to provoke it. Even then, it required seven years' wrangling to break the bond of union.
Massachusetts, however, was now very close to rebel- lion. Her Assembly, like that of several other Colonies, had been dissolved ; and a convention of town delegates met, September 22d, protested against the revenue laws, and petitioned the King. "I doubt whether they have been guilty of an overt act of treason," said the British Attorney-General, "but I am sure they have come within a hair's breadth of it." In February, 1769, Parliament requested the King to have the ringleaders in Massa- chusetts sent to England to be tried for treason, under an old statute of Henry VIII. One step further, an at- tempt to arrest for that purpose, and the rebellion would have begun ; but the step was not taken. Nevertheless, the troops were left in Boston, a firebrand near a powder magazine; and the next six years are one long record of bickerings between the townspeople and the military, arrests of soldiers for violations of town laws, indictments of officers, even of the commander-in-chief, for "slander- ing the town of Boston," and similar legal proceedings, blotted by the Boston Massacre of March 5, 1770, in which five lives were lost.
The whole of the year 1769 was taken up by the full development of the colonial claim of rights. The Vir-
The American Revolution 21
ginia Assembly, May 16th, passed a series of resolutions, declaring its right of taxation, of petition, and of concur- rence with other Colonies, and the right of its people to a trial by a jury of the vicinage; and these, for which the Assembly was dissolved, were copied by other assemblies, and the fault met the same punishment. The Massa- chusetts Assembly absolutely refused to make provision for the troops, and was, for that reason, dissolved. Whenever an assembly was dissolved, its members at once formed a non-importation league, so that the agree- ment not to use taxed articles had become much more general than was to be expected. It was effective enough to extort from the Ministry a circular letter, in May, 1769, promising to impose no more such duties, and to abandon all those already imposed, except that of three pence per pound on tea, which yielded about $1500 per annum of revenue. The repeal, in these terms and to this extent, was formally enacted April 12, 1770. But there remained the preamble, the declaration of the right and expediency of taxation of the Colonies by Parliament. This was still to be resisted; and the Revolution, as Webster afterward remarked, was fought upon this preamble. The only re- sult of the repeal was the dissolution of the non-importa- tion associations, and the renewal of trade with Great Britain, except in the matter of tea.
The first few years after 1770 are mainly occupied by apparent efforts on the part of the King and the Ministry to put the colonists so far in the wrong as to excuse the use of force. The struggle against the carefully guarded and almost pedantically legal meth- ods of the Colonies was growing vexatious. In July and September, 1770, the King made preparations to declare martial law in Massachusetts, filled Boston harbor with war vessels, and even seized the castle guarding the har- bor, though this had been built by the Colony, and the control of it was reserved to the governor by the charter.
22 The Revolution and the Constitution
Still the colonists avoided any open provocation, and there was no fighting except in North Carolina, where the Governor, Tryon, provoked and suppressed an "in- surrection," and in Rhode Island, where the Gaspie, a revenue cutter, was burned, June 9, 1772, by a boat party from the shore, after she had run aground. The whole period was marked by exasperating legal battles between the governors, under royal instructions, and the various assemblies. In most of the Colonies the Upper House, or Council, was selected by the Lower House, with a power of veto by the governor. Whenever persons were selected who had taken part against the Parliament, their nominations were vetoed, and the war of retaliation, thus begun, kept the continent in a ferment. In Massachusetts the higher step was taken of paying the salaries of the governor and principal officials directly from the royal treasury, thus not only violating the charter by making them independent of the Colony, but provoking a conflict, for it should have been evident that the Assembly would never recognize or act with a governor or judges salaried by the Crown. This step, like others equally ruinous, was the fruit of constant pressure by the office-holders in America. In December, 1772, Franklin obtained and sent from London to the Assembly the treacherous let- ters of Massachusetts officers, advising these coercive measures, and these did much to undermine all public confidence in the royal civil service. Every one lived in an atmosphere of distrust, more destructive to loyalty than the open excitement produced by the Stamp Act.
November 2, 1772, in Boston town-meeting, Samuel Adams obtained the appointment of a committee of corre- spondence with other towns. This was the real opening of the Revolution, the installation of the first of those revolutionary bodies which within three years had practi- cally superseded the legitimate governments in the con- duct of the struggle. Other towns followed the example ;
The American Revolution 23
and Virginia laid the basis of the Union, March 12, 1773 by appointing a committee of correspondence with the other Colonies.
All this time the tax on tea had been collected, though it had shrunk to $400 per year. In April, 1773, the East India Company applied for permission to export free of duty the ruinously large stock of tea which it had ac- cumulated. This offered a fair opportunity to settle discontent, but Lord North induced Parliament to vote the company a drawback of the duties, the repayment of the duties, after May 10th, to the company after collec- tion. The duties would thus be collected, the principle maintained, and yet the price of the tea would not be in- creased. After all, the meanness of this evasion, and of the trap which it attempted to set, seems to have had much to do with the result. It early led to the appoint- ment of revolutionary committees by other Colonies, and thus to a union antecedent to the meeting of Congress. Consignments of tea were sent to Charleston, Philadelphia, New York, and Boston. At Charleston it was stored in damp cellars, and destroyed ; at Philadelphia and New York the ships were forced to return ; but at Boston the officers would not permit the ships to return without dis- charging. December 16th, the revolutionary committee took further discussion out of the hands of the town- meeting, sent a body of men, and threw the tea into the harbor.
Boston at once became the focus of interest. It had placed itself in the forefront of resistance, and behind it were the revolutionary committees of all the thirteen Colonies. Its conduct was noticed severely in the King's Speech, March 7, 1774; and on the 31st the Boston Port Bill became law. It forbade the landing or shipping of goods in Boston after June 1st, until the owners of the tea should be recompensed, and the King should be satis- fied of the town's future obedience. Lord North also
24 The Revolution and the Constitution
declared in debate that the act would be enforced by the use of the army and navy. Salem was made the capital of the Colony, and Marblehead a port of entry. Gage, the commander-in-chief for North America, was made civil governor of Massachusetts, with instructions to bring the ringleaders to punishment.
The Boston Port Bill was followed, May 20th, by a bill for the government of Massachusetts, which abrogated a large part of the charter. It took away the choice of the Council by the Lower House; forbade town-meetings, except for elections or on the governor's permission; and gave the appointment of sheriffs to the governor, and the selection of juries to the sheriffs. This might have been fairly termed a bill to transfer the de facto government of Massachusetts to revolutionary committees. With it went a supplementary act "for the impartial administra- tion of justice in Massachusetts" by transferring to Nova Scotia or Great Britain the trial of officers or soldiers in- dicted for murder. Another act legalized the quartering of soldiers in Boston; and another, the "Quebec act," extended the jurisdiction of that province over the whole of that which was afterward called the "Northwest Terri- tory," ' and to which various Colonies laid claim by charter. These were unretraceable steps. The first four called for united resistance by all the Colonies which had charters; the last called for united resistance by all, for this territory was already blindly felt to be the common property of the whole, and the basis of future union.
Gage arrived May 17th. The revolutionary committees all over the country had already begun to obtain a popu- lar suspension of commerce with Great Britain ; and the New York committee had proposed a general congress. This last measure met with general approval; and the Massachusetts Assembly, June 17th, formally proposed it for September 1st, at Philadelphia, having first locked
1 See Ordinance of 1787.
The American Revolution 25
the doors to prevent the Governor from proroguing them. Two days before, the Rhode Island Assembly had chosen delegates to the congress ; five days after, Maryland took the still more ultra step of electing delegates by a popular convention or provincial congress. This last step was even more decisive than the calling of a congress. It was imitated in the other Colonies during the summer; and though these "provincial congresses" ventured at first no further than the preparation of non-importation agree- ments, promises of support to the general, or continental, congress, or contributions for the assistance of the people of Boston, they were evidently the germ of rebellion, and within a year were to assume the practical government of their Colonies.
The Congress met in Carpenter's Hall, Philadelphia, September 5, 1774.1 Gage had already begun to fortify himself in Boston, and had seized the Colony's stores, as if in an enemy's country. False alarms had already led to more than one mustering of the militia of Massachusetts and the neighboring Colonies. Nevertheless, the only measure of active resistance adopted by the Congress was the preparation of an "American association," October 20, 1774, which was signed by the delegates and then circulated for general signature. It not only bound the signers to non-importation, non-exportation, and non- consumption of British goods, and to prohibition of the slave trade, but it provided for local committees, chosen by popular vote, to enforce the provisions of the associa- tion. This was the first effective step toward national union and preparation for war; and it is noteworthy that it was taken by general popular action, not by State ac- tion ; and yet that State lines, and even town boundaries, were carefully observed in its execution. The peculiar combination of national and local government in the United States could hardly be better illustrated. 1 See Chapter III. for its further history.
26 The Revolution and the Constitution
From this time revolution in British North America was a certainty. It proceeded steadily at first as a mere protest against, and passive resistance to, the unconsti- tutional measures of the Ministry ; then, after April 19, 1775, as a scission of the British Empire and the forma- tion of an American nation, George III. being still recognized as its King; then, after July 4, 1776, as the establishment of a self-governing republic under the Revo- lutionary Congress, to be succeeded by the Articles of Confederation and the Constitution.
See 7-10 Bancroft's United States ; 1-3 Hildreth's United States; 1 Pitkin's United States ; 1 Tucker's United States ; 1-3 Spencer's United States; 1-3 Bryant and Gay's United States ; Holmes's A nnals of America ; 1 Adolphus's History of England ; 5 Mahon's History of England ; 2, 6 Burke's Works ; J. M. Ludlow's War of American hidepoidence ; Grahame's History of the United States ; Gordon's History of the Independence of the United States; Force's Tracts, and American Archives ; Chalmers's Introduction to the Revolt of the American Colonies; Walsh's Appeal; I Story's Commentaries ; Doyle's American Colonics ; Marshall's American Colo- nies; Lodge's English Colonics in America; Greene's Historical View of the American Revolution; Botta's American Revolution (Otis's trans.) ; Ramsay's History of the Revolution ; Frothingham's Rise of the Republic ; Stedman's History of the American War; Niles's Prin- ciples and Acts of the Revolution ; Moore's Diary of the Revolution; E. Abbott's Revolutionary Times; Dillon's Historical Evidence ; Jourtials of Congress, 1774-88; 1 Elliot's Debates; 4 Franklin's Works, 162 (his examina- tion), 223, 270, 281, 406; Sparks's Writings of Washing- ton, Correspondence of the Revolution, and Diplomatic Correspondence of the Revolution ; Trescot's Diplomacy of the Revolution ; Lyman's Diplomatic History of the United States; 1 Bishop's History of American Manufactures;
The American Revolution 27
Wells's Life of Samuel Adams ; 2, 3, 5 John Adams's Works ; for authorities on special topics see Winsor's Reader s Handbook of the Revolution, and C. K. Adams's Manual of Historical Literature, 605.
See also Lecky's American Revolution (" England in the Eighteenth Century," vol. iii.) ; Fiske's American Revolu- tion ; Trevelyan's American Revolution ; Channing, Stu- dents' History of the United States ; MacLaughlin, History of the American Nation; Tyler's Literary History of the American Revolution (see bibliography); Beer, The Com- mercial Policy of England toward the American Colonics ; Weeden, Economic History of New England ; see Hart and Channing's Guide to American History for further references; Winsor's Narrative and Critical History of America, vol. vi. ; consult this work and the bibliographi- cal note in the introduction to Lecky's American Revolu- tion and Winsor's Handbook of the American Revolution for suggestions of other material. For source material, in addition to the references above, see Hart's American History as Told by Contemporaries, Hart's Source Book of American History, and MacDonald's Select Chapters of American History, 1608-1776. — Ed.
CHAPTER III
THE CONTINENTAL CONGRESS : INDEPENDENCE AND THE BEGINNINGS OF THE UNION
THE meeting of the First Continental Congress in 1774 may be said to mark the beginning of the American Union. It was that Congress, and its successors of 1775 and the following years, that defended the constitutional rights of America, declared our independence, called an army into the field, appointed Washington to the chief command, contracted a foreign alliance, achieved recog- nition of independence by success in diplomacy and arms, and consummated a compact of a constitutional union under the Articles of Confederation. The nature of this Congress, its relation to the States, and the extent and character of its work, are of prime importance in our early constitutional and political history.
Before considering the Continental Congress directly it is well to notice the movements and attempts toward union prior to 1774.
1. The New England Union 0/1643. — In 1643, the sec- tion now known as New England consisted of the follow- ing Colonies: Connecticut and New Haven (now included under Connecticut); Massachusetts Bay and Plymouth (now included under Massachusetts); New Hampshire (claimed by Massachusetts and by Mason); and Maine (claimed by Massachusetts and the Gorges family). The church connection between the first four Colonies was in- timate, and at one of the annual synods, held at Boston
28
The Continental Congress 29
in 1637, a civil alliance was proposed. Connecticut at first refused her consent, unless a veto power should be reserved to each Colony ; but an increasing pressure from the Dutch forced her to withdraw her opposition, and in 1643 the union was perfected, under the name of "The United Colonies of New England."
The union was confined to the first four Colonies named above. Rhode Island applied for membership in 1648, but was refused, on the ground that her territory was properly a part of the patent of the Plymouth Colony. The affairs of the union were administered by two com- missioners from each Colony, the votes of six of the eight commissioners being necessary for valid action. Its action was to be confined to such matters as were "proper con- comitants or consequents of a confederation," such as peace, war, and Indian affairs; the control of local affairs was reserved to each Colony ; and expenses were to be assessed according to population. The commissioners, all of whom were to be church members, were to hold sessions annually at Boston, Hartford, New Haven, and Plymouth, Boston being given a double share of sessions. Provision was made for the extradition of criminals and runaway servants.
The union endured nominally for half a century, but its period of real life was about twenty years. At first its authority, or rather its advisory power, was actively exercised : it undertook the formation of a system of in- ternal improvements, by laying out roads; exercised the treaty power with its Dutch and French neighbors ; de- clared and waged a war against the Indians; and decided territorial disputes between the Colonies. But the union had not been in existence ten years before signs of disin- tegration appeared, arising mainly from the unwillingness of the strongest Colony, Massachusetts, to submit to the general authority. In 1650, the union having upheld the right of Connecticut, under an ancient grant, to levy tolls
30 The Revolution and the Constitution
on commerce at the mouth of the Connecticut River for the support of a fort there, Massachusetts retaliated by levying tolls on Boston commerce belonging to other Colonies, nominally for the support of the forts at Bos- ton; and this proceeding almost broke up the union. In 1653 the union determined to declare war against the Dutch in New Netherland; but Massachusetts denied the right of the union to declare "offensive war" without unanimous consent. The General Court, therefore, re- fused to levy its quota of men, and the war fell through. At the restoration of the Stuarts no formal condemnation of the union was made, but its functions were practically re- sumed by the Crown. After 1663 the meetings of its com- missioners became triennial, and soon ceased altogether.1
It will be seen that this union was but temporary, for common defence against common dangers. As these dangers disappeared, the union dissolved. It was only a loose league, exercising none of the functions of a real government. All authority over individuals, all real power over matters of war, peace, money, taxes, law, and the control of individuals, rested with the several Colo- nies. The Union of 1643 came to be only a reminiscence.
From 1684, the time of the formal dissolution of the Confederacy of 1643, to the attempt at union proposed by Franklin at Albany in 1754, there were a number of futile proposals and attempts of union. In 1685, James II. attempted by the government of Andros to unite the New England Colonies for commercial purposes. This attempt at consolidation (which was made without refer- ence to the interests of the Colonies) failed, partly because
1 See I Bancroft's United States, 420, and authorities there cited , 1 Hil- dreth's United States, 285, 326, 386, 463; 1 Spencer's United States, 94; I Pitkin's United States, 51 ; Chalmers's Political Annals, 178 ; 1 Chalmers's Revolt 0/ the American Colonies, 86; 9 Mass. Hist. Soc. Coll., 3d ser. (J. Q. Adams's article on the confederacy of 1643.
The Continental Congress 31
of the stout opposition in the Colonies, partly because of an early change of government in England. In 1696 a suggestion of a captain-general for the Colonies was made by the English Board of Trade. In 1697, William Penn made a notable proposition for an annual colonial congress. In 1721 and 1722 there were renewed sugges- tions looking toward consolidation and a captain-general. These schemes came to nothing, though they indicated a realization, on the part of those who were thinking of the whole body of colonial interests, that some union and a common organ of government were needed to provide for colonial defence and to promote colonial trade. Especially was union needed to provide for the common defence against the dangers and aggressions of the French and the Indians. Franklin was one of the few Americans who, by the middle of the eighteenth century, urged the importance of a continental union, and his scheme sub- mitted to the congress of the Colonies at Albany in 1754, known as the "Albany Plan," is one of the landmarks in the growth of the American Union. — Ed.
2. The Albany Plan of Union. — The Lords of Trade, in 1754, directed that commissioners from the several provinces should assemble at Albany, N. Y., to arrange a treaty with the Six Nations. June 19, 1754, commis- sioners from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Mary- land met, and, after concluding their business with the Indians, proceeded to consider a plan of colonial union, proposed by Franklin, one of their number, which was adopted, July 10-n. It comprised the appointment by the Crown of a president-general for all the Colonies, with the veto power; the election by the colonial as- semblies of a grand council, who, with the assent of the president-general, should make Indian treaties, regulate Indian trade, purchase and dispose of Indian lands, raise and equip armies and navies for colonial defence, and lay
32 The Revolution and the Constitution
taxes to support them. Members of the grand council were to serve three years, and to be chosen in proportion to the amount paid by the Colony to the general treasury ; but no Colony was to have more than seven members or less than two. Laws were to be valid unless disapproved by the king in council within three years. It was agreed that this plan, in order to prevent a possible secession by any Colony, should be made binding by act of Parliament. The whole plan was disapproved by the Crown, on the ground that it gave too much power to the Colonies, and by the Colonies that it gave too much power to the Crown. '
The fate of Franklin's scheme shows the fear of the mother country that the Colonies would, by the strength of union, achieve their independence; and it shows, also, the jealousy of each Colony for its local independence. The administrative functions of the united council were to be limited to (a) defensive war, (d) Indian trade, and (c) the distribution of unoccupied land; yet the Colonies showed a jealous fear that too much government and interference might be exercised by some outside power within their limits and jurisdiction. The next represen- tative meeting or congress of the Colonies was called in opposition to the Stamp Act.
3. The Stamp Act Congress was a body of delegates from all the Colonies, except New Hampshire, Virginia, North Carolina, and Georgia, which met at New York, October 7, 1765. It differed from the Continental Con- gress which succeeded it in that it took no steps toward forcible resistance. The delegates from New York were named by the committee of correspondence; from Dela- ware and New Jersey, by informal action of the members of Assembly ; from the other Colonies, by formal action
1 See Franklin's Life and Writings, iv., 22-6S containing the plan in full, and the letters to Shirley ; 2 Trumbull's History of Connecticut, 355 ; 3 Hutchinson's History of Massachusetts, 23 ; I Pitkin's United Stater, 142 ; 2 Hildreth's United States, 443.
The Continental Congress 33
of the Lower House of Assembly. The action of the Congress was confined to an address to the King, petitions to Parliament, and a declaration of the rights and griev- ances of the Colonies. The last named paper acknow- ledged "all due subordination" to Parliament; but declared that the Colonies could only be taxed by their own representatives in the colonial assemblies; that the colonists had the inherent right of trial by jury; that the Stamp Act and other legislation to extend the jurisdiction of the Admiralty Court, without trial by jury, had "a manifest tendency to subvert the rights and liberties of the colonists"; and that Parliamentary restrictions on colonial trade were burdensome. The Congress recom- mended to the several Colonies the appointment of special agents ' ' for soliciting relief from their present grievances' ' in England. The petition of the Congress was offered in the House of Commons January 2~% 1766. It was ob- jected to, 1, as the act of an unconstitutional gathering and, 2, because of its denial of the right of Parliamentary taxation. After some debate the order of the day was voted, and in this summary manner the first request of the united Colonies for a hearing was passed over.1
Opposition and resistance to the Parliamentary policy of taxation and internal control continued in the various Colonies, — the Colonies co-operating, in a measure, by their committees of correspondence.
4. The Continental Co?igress. — When the attempt of George III. to govern his American dominions through his British Parliament had become patent, it was evident that separate resistance by the individual American as- semblies would only result in failure, and that some representative body for all the Colonies was a necessity
1 See Xiles's Principles and Acts of the Revolution ; Niles's Register, ii., 337. 353 : Frothingham's Rise of the Republic ; MacDonald's Select Docu- ments Illustrative of American History, 1608-1776, p. 313 ; Lecky's Amer- ican Resolution, p. So. vol. 1.— 3.
34 The Revolution and the Constitution
for united resistance. Such a union had been attempted for other purposes in 1754, as we have noticed, and Frank- lin, who had then been a leading advocate of union, now first renewed the suggestion in a letter of July 7, 1773, to the Assembly of Massachusetts, of which Colony he was the agent in London.
The first step was taken by the Virginia Assembly in May, 1774, upon receipt of news of the passage of the Boston Port Bill. Its members advised the local com- mittee of correspondence at Williamsburgh to suggest to the other colonial committees the calling of a Continental Congress, that is, a meeting of delegates from all the English Colonies on the continent — for the hope was long cherished that the Canadian Colonies would make com- mon cause with their brethren south of the Great Lakes and the St. Lawrence. June 7th, the Massachusetts Assembly named a time and appointed delegates to the proposed Congress. Other Colonies followed the ex- ample, and the result was the meeting of the First Conti- nental Congress, "the delegates appointed by the good people of these Colonies," which met at Philadelphia, September 5, 1774, Georgia alone being unrepresented, though it took part in succeeding Congresses. The North Carolina delegates did not arrive until September 14th.
In calling any such deliberative assembly of their own volition, and without the previous assent of him whom they still ingenuously acknowledged to be "their sover- eign lord, the king," the Colonies evidently took the difficult first step on the straight road toward rebellion and revolution. Neither the delegates nor their princi- pals, however, thought of such a result. The powers given by the Colonies were all alike advisory, and limited to the recommendation of such measures as would restore harmony between Great Britain and the Colonies. The action of this Congress was therefore confined to a
The Continental Congress 35
declaration of the rights and wrongs of the Colonics, the recommendation to their Colonies of an agreement not to import British goods after December i, 1774, and not to export goods to Great Britain, Ireland, or the West Indies after September 10, 1775, unless their wrongs should be righted, and the preparation of addresses to the King, to the British people, to their own constituents, and to the people of the province of Quebec. But the germ of measures of a stronger nature may be seen in a resolution commending the people of Massachusetts for their temperate resistance to the objectionable measures of Parliament, and declaring that if these acts "shall be attempted to be carried into execution by force, in such case all America ought to support them in their opposi- tion."
The first Congress recommended the immediate selec- tion of delegates to a second Congress, to be held at Philadelphia, May 10, 1775. Surely every man who, personally, or by his acknowledged representatives, rati- fied the action of the first Congress by choosing delegates to the second, with the resolution just cited staring him in the face, did so with the full consciousness that the proposed second Congress was, in case of the application of force by the British Parliament, to be a different body from the first, a revolutionary assembly, plenipotentiary in its nature, and empowered by its constituents to use, if necessary, every means of resistance. The delegates, therefore, when first appointed, though nominally re- taining allegiance to the British Crown, were potentially members of a National Assembly; and the first shot fired at Lexington, April 19, 1775, crystallized thirteen of the King's American Colonies into a separate nation, with their own full concurrence previously and advisedly given.1
The new nation, it is true, was still bound to the old
1 See subsequent discussion by the Editor, pp. 51 sq.
36 The Revolution and the Constitution
by the frail tie of allegiance to a common King, but the great appanages of sovereignty, the power to make peace, war, treaties, and foreign alliances, to send ambassadors, to control commerce and open the ports of the nation to all the world, to raise and equip armies and navies, to issue national currency, to authorize letters of marque and reprisal, to create a national postal system, many of which were never enjoyed by the rival Parliament of Great Britain, were exercised by the Second Continental Congress with the hearty acquiescence of the people at large, who thus continually re-confirmed their former grant to Congress of temporary but unlimited power. Indeed, the impatience of the people outran the modera- tion of the Congress.
Provincial congresses called upon the Continental Con- gress for advice, direction, and complete national action ; and even when the King had proclaimed the American people out of his protection, and had declared war against them by land and sea, only a strong outside pressure at last impelled Congress to assume before the world the station as a National Assembly which it had held for more than a year in reality, to renounce allegiance to a tyrant, and to make the United States foreign soil forever to the King and people of Great Britain. The scission between the two nations was thus final; the union between the constituent units of the American nation on the one hand, and of Great Britain on the other, remained undis- turbed and complete as before.
The appointment of the delegates to both these Con- gresses was generally by popular conventions, though in some instances by State assemblies. But in neither case can the appointing body be considered the original de- positary of the power by which the delegates acted ; for the conventions were either self-appointed "committees of safety " or hastily assembled popular gatherings, in- cluding but a small fraction of the population to be repre-
The Continental Congress 37
sented, and the State assemblies had no right to surrender to another body one atom of the power which had been granted to them, or to create a new power which should govern the people without their will.
The source of the powers of Congress is to be sought solely in the acquiescence of the people, without which every Congressional resolution, with or without the bene- diction of popular conventions or State legislatures, would have been a mere brut am fulmcn ; and, as the Congress unquestionably exercised national powers, operating over the whole country, the conclusion is inevitable that the will of the whole people is the source of national govern- ment in the United States, even from its first imperfect appearance in the Second Continental Congress.1
The power to select delegates to what might perhaps be called the third Continental Congress, December 20, 1776, and to succeeding sessions until the adoption of the Articles of Confederation, was appropriated by the State legislatures. No such right could be drawn from the Articles, for they were not binding until ratified by all the States in 178 1. In eight of the ten States by which constitutions were adopted in \Jj6-j the power to ap- point delegates to Congress was vested in the legislature. But no such power was given by the new constitution of New Jersey in 1776; no such power was given in Massa- chusetts until 1780, or in New Hampshire until 1784; and Connecticut until 1818, and Rhode Island until 1842, remained under the royal charters, which of course gave no such power to the legislature. And yet the legis- latures of these five States continued to exercise a power of delegation to Congress to which they had no claim by the organic law of State or nation.
In this respect, indeed, they were only imitating their sister legislatures, most of which had actually seized the power of delegation before it was formally granted by
1 See p. 52.
38 The Revolution and the Constitution
the State constitutions; and this whole course of legis- lative appropriation of ungranted powers is of interest and importance as explaining the manner in which the Continental Congress was becoming the creature of the State legislatures even before the close of the year 1776, and the underlying cause of the peculiar character of the confederation which follows.
The "first" and "second" Continental Congresses have been so called, but after the first meeting of the second Congress it is impossible to specify any other dis- tinctive congresses. The State legislatures, from their first appropriation of the right to choose delegates, chose them for varying times, and recalled them at pleasure, so that Congress became a body, theoretically in perpetual session, subject to perpetual change, but with no distinct period of renewal.
From the first meeting of the first Congress, the dele- gates of each Colony had but one vote ; not because the collective body of delegates from each Colony were the ambassadors from a sovereign and independent State, but because, as the first Congress was careful to specify, there was no present means of ascertaining the relative number of citizens in the separate Colonies. By usage this mode of voting soon hardened into custom, and the smaller States finally claimed as a right, and embodied in the Confederation, that which was originally due only to the lack of a census, and of which the Constitution retained a remnant in the Senate.
A comparison of the machinery and functions of the old Germanic Diet with those of the Continental Congress would very plainly show the marked differences between an assemblage of ambassadors and the true, though imper- fect, National Government of the American Revolution.
It has just been said that the Revolutionary Congress was a true, though imperfect, type of national govern- ment. It was imperfect in that is never ventured to claim
The Continental Congress 39
three important functions of a National Assembly: i, it never attempted to lay general taxes, or control indi- viduals, being content with recommendations to the States to lay the taxes and make the laws necessary for each case as it arose; 2, it made no attempt to regulate the mode of election or term of service of its members, leaving those matters also to the discretion of the States; and 3, it did not lay claim to the allegiance of the citizens of the whole country, but yielded that badge of sover- eignty to the States.
On the slender foundation of these three omissions, which passed into the frame of the Confederation, has been erected the whole argument against the national nature of the Revolutionary government ; and the mere statement of the basis of this objection, as compared with the mass of national power actually exercised by the Con- tinental Congress, is sufficient to show the weakness of the argument. But it is necessary to notice, further, that the Continental Congress, to which the power of the sword had been confided by the will of the people, had an unquestionable right, by the laws of war, not only to regulate these three unregulated matters, but even to abolish slavery, to order a general draft, and to confiscate the last dollar in the country, so long as the country re- mained the theatre of a war which the people were bent upon continuing.
The doctrine is harsh, but it is the recognized law of war, and controls, by the necessity of the case, the laws and constitution of every civilized nation in which war is flagrant. Of course it does not apply to a country which is waging a war beyond its own limits; only the right of self-preservation can thus stand above the laws. The few omissions of the Revolutionary government, then, to do that which it had a right to do, cannot militate against the evident intention of the people to establish and sup- port a national government.
40 The Revolution and the Constitution
Apart from its assumption of such national powers as the poverty of the country, the difficulties of communi- cation, and the lack of material left feasible, the most important political work of the Continental Congress was its long continued effort to transform itself from a revo- lutionary assembly into a representative body limited by law.
June 10, 1776, the day on which the committee was appointed to prepare a declaration of independence, a committee of one from each Colony was appointed "to prepare and digest the form of a confederation to be entered into between these Colonies." Its report was made July 12th, debated until August 20th, and dropped until April 8, 1777. It was then resumed, debated, and amended, and was finally adopted November 15th, and recommended to the State legislatures for ratifica- tion in a circular letter of November 17th. By in- structions from the State legislatures the Articles were signed by the delegates of New Hampshire, Massa- chusetts Bay, Rhode Island and Providence Planta- tions, Connecticut, New York, Pennsylvania, Virginia, and South Carolina, July 9, 1778; of North Carolina, July 21st; of Georgia, July 24th; of New Jersey, No- vember 26th; of Delaware, May 5, 1779; and of Mary- land, March 1, 1781.
The delay of the last three States in signing was due to the omission of the Articles to make any provision for dividing the Western lands among all the States, and they only signed at last in the full confidence that those States whose nominal boundaries extended indefinitely west would resign their pretensions to the lands which were conquered by the common exertions of all the States. New Jersey interposed the further and more far-sighted objection that the articles were defective in not giving the General Government the control of commerce. March 2d, the Revolutionary Congress changed its basis of ex-
The Continental Congress 41
istence, and began its short-lived career as the Congress of the Confederation.1
Most of the State legislatures, as has been said, origin- ally usurped the power to choose delegates to Congress. When we come to the further question of the right of the legislatures to ratify and make valid that which their new servant, the Continental Congress, had offered for their ratification — a scheme of government which was professedly a league or treaty between sovereign and in- dependent States — the usurpation becomes yet more glaring. Whence did the legislatures derive those "com- petent powers" with which the Congress invited them to invest the delegates of their States for signing the Articles of Confederation? They cannot be found in the State constitutions, not one of which authorized its legislature to form any league or treaty with other States; nor in any claim of a revolutionary and unlimited character for the legislatures, for they were all expressly limited by the organic law of the States, their charters or constitu- tions; nor in the undefined boundaries of legislative power, for the treaty power is essentially an executive, not a legislative, power, except so far as the legislative is admitted to it by the organic law.
If, then, we are not to consider the Articles of Confed- eration as the extra-legislative and usurping action of State legislatures, we must look for their basis in the revolution- ary character of the Congress which framed them and which chose to offer them to the State legislatures for de- cision ; and thus we are forced back again to the will of the whole people as the source even of the clumsy National Government of the Confederation. [The many instances in which the particularist bias of the American people caused their actions, and those of their representatives, to swerve from the straight line of theory, are considered under Declaration of Independence, and State Sovereignty.]
1 See Confederation, Articles of.
42 The Revolution and the Constitution
Appended is a summary of the successive sessions and locations of the Continental Congress, before and after the adoption of the Articles of Confederation. After October 21, 1788, the Congress was nominally kept in existence in New York City by occasional meetings of a few delegates for the purpose only of adjournment, until the inauguration of the new Federal Government under the Constitution. September 5, 1774-October 26, 1774, Philadelphia, Pa.; May 10, 1775-December 12,
1776, Philadelphia, Pa.; December 20, 1776-March 4,
1777, Baltimore, Md. ; March 4, 1777-September 18, 1777, Philadelphia, Pa.; September 27, 1777, Lancaster, Pa. ; September 30, 1777-June 27, 1778, York, Pa. ; July 2, 1778-June 21, 1783, Philadelphia, Pa.; June 30, 1783- November4, 1783, Princeton, N. J. ; November 26, 1783- June 3, 1784, Annapolis, Md. ; November 1, 1784-De- cember 24, 1784, Trenton, N. J.; January 11, 1785- November 4, 1785, New York City; November 7, 1785-November 3, 1786, New York City; November 6, 1786-October 30, 1787, New York City; Novembers, 1787-October 21, 1788, New York City.
5. Declaration of Independence. — The struggle against Great Britain was begun by the English-speaking Ameri- can Colonies without any general idea of independence as a possible result.1 Any such intention, however warmly favored in New England, was very distasteful to the other Colonies, and was formally disavowed by Congress, July
1 To see that independence was not the purpose in view of the colonists even as late as 1775, consult the " Declaration of the Causes and Necessity of Taking up Arms," July 6, 1775, in MacDonald's Select Charters Illus- trative of American History, p. 374. This state paper says: "Lest this declaration should disquiet the minds of our friends and fellow-subjects in any part of the empire, we assure them that we mean not to dissolve that union which has so long and so happily subsisted between us, and which we sincerely wish to see restored. Necessity has not yet driven us to that des- perate measure, or induced us to excite any other nation to war against them. We have not raised armies with ambitious designs of separating from Great Britain and establishing independent states." — Ed.
The Continental Congress 43
6, 1775. Pennsylvania, Maryland, and New Jersey, be- fore the spring of 1776, had enjoined upon their delegates in Congress the rejection of any proposition looking to a separation, and New York, Delaware, and South Carolina were so much opposed to a separation that their delegates took no prominent part in promoting it.
The transfer of the war to the South in May and June, 1776, did much to advance the idea of independence there, and in May the Virginia Convention instructed the delegates of that State in Congress to propose a resolution declaring for independence, which was done, June 7th, by Richard Henry Lee, though his resolution was not formally adopted until July 2d. Before July 1st, Penn- sylvania, Maryland, and New Jersey had rescinded the former instructions, and ordered their delegates to vote for the Declaration. After debating Lee's resolution, June 8th and 10th, in Committee of the Whole, and ap- pointing a committee of five to draw up a Declaration, the question was dropped until July 1st, when the Declara- tion, which the committee had reported June 28th, was taken up and debated in Committee of the Whole through July 3d.
By this time the delegates of South Carolina, who had hitherto voted against it, came over to the majority. Delaware's two delegates were divided, and the New York delegation refused to vote, although personally in favor of the measure. July 4th, Rodney, the third dele- gate from Delaware, was brought hurriedly about eighty miles to secure the vote of his State, and in the evening of that day the Declaration of Independence was passed, no State in opposition, but New York still refusing to vote. July 9th, the New York Convention ratified it, and it thus became "The Unanimous Declaration of the Thirteen United States of America." The New York delegation did not sign until July 15th, nor six new Pennsylvania members until July 20th. One
44 The Revolution and the Constitution
member from New Hampshire did not sign until Novem- ber 4th.
The committee appointed to draft the Declaration were Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston. Jefferson, who was no speaker, but had the reputation of being an able writer, was appointed to make the draft, and his draft was accepted, with some few changes, by the com- mittee and by Congress. The changes were generally omissions rather than alterations, so that the whole docu- ment, as we have it now, contains hardly any words which were not those of Jefferson.
The most noteworthy omissions were those of the last two counts of his original indictment of the King, which were as follows:
" He has incited treasonable insurrections of our fellow- citizens, with the allurements of forfeiture and confiscation of our property. — He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivat- ing and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the war- fare of the Christian king of Great Britain. Determined to keep open a market where men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce; and, that this assemblage of horrors might want no fact of distinguished dye, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another."
The last of these two charges fully expressed Jefferson's theoretical sympathy for the negro race, and it is the
The Continental Congress 45
only place in the whole document where his draft de- scended to italics to express feeling. But slavery was already too delicate a subject to be rudely touched, and the matter above given was stricken out in obedience to the wish of Southern delegates.1
The debates upon the Declaration are not sufficiently preserved to give us any adequate idea of their nature, but from all the concurrent testimony of the time it is evident that, though Jefferson was the author of the Declaration, to John Adams must be given the credit of its passage. His eloquence and his great influence over the Northern delegates insured a hearty support to that which was originally a Virginia measure. Jefferson ac- knowledges that in the debates he was of necessity a passive auditor of the opinions of others, while Adams ''supported the declaration with zeal and ability, fighting fearlessly for every word of it."
By a singular coincidence, the deaths of the two men were almost simultaneous, occurring on the same day, July 4, 1826, the fiftieth anniversary of their joint success in producing the Declaration of Independence.
Few state papers have been drawn up with more skill, or with greater adaptation to the purposes in view, than the Declaration of Independence. Jefferson's first object was to impress upon the whole document the consistent character of a renunciation of future allegiance to the King, while avoiding anything that could be construed into an acknowledgment that the British Parliament had ever had any rightful authority over the Colonies. The skill with which this difficult path is pursued until the end is most admirable. Parliament, the head and front
1 The passage relating to the slave trade was stricken out from the origi- nal draft of the Declaration of Independence, as Jefferson testified, not only because of "deference to Southern delegates," but "because our Northern brethren being considerable carriers of slaves to others were a little sensitive on that point." — Ed.
46 The Revolution and the Constitution
of the enemies of America, is not even mentioned, except by implication, and then only as a number of lawless and usurping persons with whom the King had combined and confederated to procure the passage of certain unconsti- tutional acts of pretended legislation.
Beyond this, of course, a further object was to exhibit such a catalogue of grievances as would justify every American to his own conscience in throwing off the royal authority, and this also was attained with wonderful ability. There is no unseemly violence of language in the Declaration. The slow and stately scorn with which the successive counts of the dreadful indictment against the King are rehearsed, is massive in its impressiveness even to us, who have not the living and burning feeling of injury which was in the hearts of its first hearers. Even as a piece of literary workmanship, to be judged by its capacity to affect Anglo-Saxon minds and hearts, Jeffer- son had a right to be proud of it, and it is not wonderful that his first claim to remembrance, as given upon his tomb by his own wish, is that he was the "Author of the Declaration of American Independence."
The general principles with which the Declaration proper begins, the equality (meaning the equality of privilege) of all men, and popular will as the true basis of government, seem to us trite enough now, and are accepted in fact by every government whose subjects have capacity enough to comprehend and assert them. In 1776 they had been asserted again and again in theory, and Jefferson was accused of having stolen them from the Declaration of Rights by Congress in 1774, from James Otis, from Samuel Adams, or from Locke's Treatise on Government.
A long list might easily be made of writers who had maintained, in the closet and on paper, sentiments iden- tical with those of the Declaration ; but, with the possible exception of the English commonwealth, which, however,
The Continental Congress 47
was sui generis, this was the first time in modern history that these ideas had appeared armed and demanding a hearing. By their successful establishment the Declara- tion has taken, in American history, the place which Magna Chart a and the death warrant of Charles I. occupy in English history.
Upon the essential nature of the Declaration there are two opposite opinions, which may be called the Story theory and the Calhoun theory, from their ablest sup- porters.
The Story theory is that the Colonies did not severally act for themselves and proclaim their own independence ; that the Declaration was the united act of all for the benefit of the whole, "by the representatives of the United States of America in Congress assembled " ; that it was therefore a national act, by the sovereign and paramount authority of the people at large ; and that, therefore, from the moment of its passage, the united Colonies must be considered a national government de facto, acting by the general consent of the people of all the Colonies.
The Calhoun theory is that the words "one people" in the preamble refer to the people of each Colony severally, not jointly, as the source and fountain of all rightful power; that the Congress which made the Declaration was a Congress of States only ; that the delegates of each State signed and joined in the Declaration by direction of the several State governments, not in deference to the decision of a majority of Congress or of the people at large; that the independence of each separate Colony not only of Great Britain, but also of its neighbors, was established before the Declaration, by popular assump- tion of power; that the Declaration itself was only an assignment, out of a decent respect to the opinions of mankind, of reasons for the previous exercise of inde- pendency by the States; and that the separate States,
4-8 The Revolution and the Constitution
though acting in common for self-defence, were so far from being a nation in reality that they did not even form a confederation until five years afterward.1
The Story theory must be taken as generally most cor- rect. From the inception of Anglo-Saxon political or- ganization upon this continent, growth was a certainty, and, by the circumstances of its surroundings, growth could only take place along the line which is marked out by the Story theory. If the doctrine of the Declaration, that popular consent is the basis of government, be ac- cepted, the thirteen Colonies were already united by their own consent, before 1774, in a common membership in the British Empire, as they afterward remained united from 1774 until 1789 under two classes of revolutionary governments, and since 1789 under the present Constitu- tion. The form of the government during the inter- regnum period, 1774-89, which by the Calhoun theory is all-important, is in reality of no importance at all; it is the fact of union which is all-important, and against which it is useless and absurd to argue.
Popular consent to union has been continuously and progressively in force from the beginnings of English colonization in America until the present time, and logic is wasted against the patent fact while the consent is not rescinded. As the Declaration expressly rescinded the popular consent to further union or political connection with the rest of the British Empire, its very silence as to the continuance of union between the Colonies themselves is the strongest of affirmations.
The union which theretofore existed, by common con- sent, between the thirteen Colonies and the rest of the British Empire was dissolved by common consent as the result of civil war; but no such common consent to a further dissolution has ever been obtained, and no such common consent can ever be presumed, or arise by in-
1 See State Sovereignty.
The Continental Congress 49
ference or implication. It must be express. Nor does the confederating of the States, after the Declaration, alter the case, as is contended by the Calhoun theory, for the truth is ' that this scheme of government was either the extra-legislative action of State legislatures, or was as essentially revolutionary as the Continental Congress. The union must be regarded as continuous, under the British Constitution until 1774, under a revolutionary in- terregnum during the period of 1774-89, and since 1789 under the practical supremacy of the general popular will which had been theoretically declared in 1776 to be the true basis of government.
But it would be misleading if we should leave it to be inferred, as the Story theory usually does, that the Amer- ican statesmen and people of 1776 were in all points perfectly cognizant of the full scope and meaning of their action. If the Story theory had been fully explained to the Congress of 1776, we would certainly never have had the Declaration in exactly its present form. Some of the signers read the instrument with the light of the future upon it, but the great mass acted simply because they were in the full drift of the current which has regularly governed successful political action in this country. In that current, however, there were many strong eddies. State feeling, distrust of other commonwealths, and the strong individualistic bias of the Anglo-Saxon charac- ter were constantly prompting the delegates and their State governments to action which was entirely inconsist- ent with the Story theory and is usually ignored by its supporters.
Such are, for example, the emphatic declaration of the Virginia Convention, June 20, 1776, that the political connection between that colony and the British Empire was totally dissolved; the resolutions of Congress, June 24, 1776, that allegiance was due to the separate Colonies
1 See Continental Congress.
50 The Revolution and the Constitution
and that treason was an offence against the Colony in which it had been committed ; the title given to the Declaration by order of Congress, "The unanimous Declaration of the Thirteen United States of America "; and other instances given under State Sovereignty. All these are constantly quoted as convincing proofs of the soundness of the Calhoun theory ; but the candid student, while allowing them their fair value as militating against the general current of American political history, must look upon them as only eddies.
Whatever may have been the feeling of any American statesman in 1776, it must be evident that a declaration of the several as well as the joint independence of the Colonies, a resolution of the American portion of the British Empire into its constituent elements, could never be valid without the express action of each Colony at the time, and its successful establishment by separate warfare. To assume it, to obtain it by inference or implication, or to attempt to establish it by argument, would be to erect a monstrosity in the generally orderly history of American politics.
6. Mccklcnburgh Declaration. — The authorized account of this document is that it was adopted at two o'clock in the morning of May 20, 1775, at Charlotte, by a convention of two delegates from each militia company of Mecklen- burgh County, N. C. ; that the papers of John M. Alex- ander, the secretary of the convention, were accidentally burned in April, 1800; that copies of the minutes and Declaration were then sent to Hugh Williamson, at New York, the historian of North Carolina, and to Wr. R. Davie; and that another copy was finally published by the Raleigh Register, April 30, 1818. From this last pub- lication the Declaration first became generally known.
The Declaration purports to "dissolve the political bands which have connected us to the mother country, and absolve ourselves from allegiance to the British Crown,
The Continental Congress 51
and abjure all political connection, contract and associa- tion with that nation"; to declare that the people of Mecklenburgh County are "a free and independent peo- ple," who "are, and of right ought to be, a sovereign and self-governing association, under the control of no power other than that of our God and the general government of the congress"; and to establish a revolutionary gov- ernment for the county.
The Declaration is historically suspicious from its use of phrases used in the Declaration of July 4, 1776; from the facts that Williamson, and the contemporary writers of this and neighboring States, show no knowledge of it, and that it was entirely ignored in and out of Congress at a time when resolutions coming far short of independence were heralded by every newspaper in the country ; and from its inability to appeal to any better evidence in sup- port of it than that of dead men, burned papers, and a missing letter of approval from the three North Carolina delegates in Congress, two of whom were notorious Tories. Nevertheless Bancroft accepts it without hesitation ; but the probability is that resolutions, of the kind which were common at the time, were passed May 31st, that the "copies" of 1818 were from recollection, with strong traces of the Declaration of July 4, 1776, and that the Meckleburgh "declaration " was not of its purported date, or essentially of its purported nature.
In the articles above Professor Johnston saw fit to pre- sent a view in support of the national theory of the origin of the Union. Was the Continental Congress a national body holding and exercising sovereign powers? Or were the States sovereign and supreme? Was the Union older than the States? Was the Union formed by a national people, or by independent and sovereign States that only delegated without surrendering their sovereignty ? These
52 The Revolution and the Constitution
questions are not now of any political significance, because the national character of the Federal Union has been de- termined by a century of experience and by four years of civil war. But these questions present historically an interesting problem, — the problem of determining to what extent, if any, the Continental Congress represented a nation, to what extent it was a sovereign national power, such as the United States Government represents to-day. That problem should be approached not from the stand- point of any theories as to our national existence — a Story theory or a Calhoun theory, — not from the point of view of the arguments and conflicts of later days between the national and the confederate idea, but from the stand- point of pure history, to ascertain from the evidences and sources, as far as may be, how the united action of the Colonies in the Continental Congress actually appeared to the men of that day. The student who is interested in this important early aspect of our national history is referred to Professor Albion W. Small's Beginnings of American Nationality.1 This study presents the query: Do the records of the Congress and of the Colonies and the history of the times prove whether the Continental Congress was —
(a) A central committee of observation to consult, to advise, then to await directions? Was it merely a con- ference to debate what would be best for the Colonies to do ?
{b) Or, was it a committee of delegates to consult, to decide and to lead, to go ahead and act, expecting to be sustained by their principals, the States, who sent them?
(c) Or, was it a real government, — a body with power to consult, to decide, and then to carry out its decisions, enforcing its decrees against individuals and against the Colonies ?
The conclusions of Professor Small's monograph are
'Johns Hopkins University Studies, Series VIII.
The Continental Congress 53
that the Continental Congress represented the second of these three views. Professor Small says in his conclusion:
"It is not necessary to build our nationality on a miscon- ception of history. The term ' union ' can be used in con- nection with the agitations of 1774 only by the most liberal accommodation. There were common grievances ; there was prospect of remedy only in combination of the colonies for mutual counsel and support. There was common indignation against the mother country, with almost universal hope that reconciliation, not separation, would result. There was com- tnon determination to insist upon constitutional rights and to grant moral and material aid to the colony or colonies that might make test cases with the home government. There was common recognition of co-ordinating effort under leadership competent to survey the whole situation and point out suitable lines of action. There was common willingness to adopt the advice of a central committee of observation. . . . Concert only to this extent was, in some respects, more difficult than it would be to-day for all the Republics of America to form a commercial alliance. To use the term 'union' (in relation to the Congress of 1774) with its present conception and associa- tion is to introduce an historical misconception."
"To admit the terms 'sovereign' and 'nation' into a description of American conditions at this stage is to abandon investigation and classification and to deliberately beg the issue. For the moment government, even within the colonies, was partially paralyzed. It was doubtful who might command and who must obey. There is not a trace in any popular or official act of the time that can be rationally expounded as evidence of a claim, on the part of the Continental Congress, to power of inter-colonial control. Persons in South Carolina denounced Georgia, to be sure, and there was talk of forcing that colony into participation with the rest. The argument was supposed expediency, justifying extraordinary action, not the assertion of any general principle subordinating the will of one colony to the command of all. The formation of a Continental Congress was the beginning of inter-colonial de-
54 The Revolution and the Constitution
liberation which broadened the horizon of the people, which emphasized the reasons for unity, which brought to popular attention the increasing number and importance of common interests, which created a continental opinion upon subjects of the most obvious common concern. The function of the first Continental Congress was not to express a 'sovereign will,' but to assist in the development of a common consciousness, so that there would be, by and by, a sovereign will to express. By creating this continental committee, the widely separated colonies became simply colonies testing the actuality and potency of their common ideas. They were no more a nation than twelve neighbors meeting (under some pressure) for the discussion of a possible business venture would be a partner- ship." '
It will be noticed that this view is quite different from that presented by Professor Johnston. But it is not a matter of different "views." It is a question of evidence and facts. The student should go to the sources and learn for himself— which Professor Small's monograph will help him to do — what was the real character of the Continental Congress as to the source and extent of its powers and its relation to the States. George Ticknor Curtis, in his Constitutional History of the United States (which the student should consult), gives what appears to be a fair judicial summary :
" There seems to have been no reason upon principle why they [the Continental Congresses] should not have adopted decrees to be executed by their own immediate agents and by their own direct force. ... But the government of the Congress rested on no definite legislative faculty. When they came to a resolution, or vote, it constituted only a voluntary compact, to which the people of each colony pledged them- selves by their delegates as to a treaty, but which depended for its observance entirely on the patriotism and good faith of the colony itself. No means existed of compelling obedience 1 Small's Beginnings, pp. 40, 42.
The Continental Congress 55
from a delinquent colony, and the government was not one which could operate directly upon individuals, unless it as- sumed the full exercise of powers derived from its revolution- ary objects. These powers were not assumed and exercised to their full extent, for reasons peculiar to the situation of the country, to the character, habits, and feelings of the people." ' " It was a congress of deputies, not of legislators. Its ex- ecutive operations were vicarious, not functional. It per- formed no single act which did not derive viability from sustentation by the local powers. Its history forms a record of localism rising superior to itself, to meet the demands of a crisis. That imagination runs riot which turns this magnifi- cent effort into the definitive abdication of localism. Not con- stitution-building but constitution-saving was the object now. The colonies combined not to substitute one dependence for another, but to make their relation to England one of inde- pendence." " Ed.
On the Continental Congress see 8 Franklin's Works, 63 ; 1 Pitkin's United States, 282 ; 3 Burk's History of Virginia, 379; 1 Gordon's History of the Revolution, 239; 1 Marshall's Washington, 29; 7-9 Bancroft's United States ; 3 Hildreth's United States ; 1 von Hoist's United States, 1-30 ; 1 Schouler's United States, 1-56; 1 Curtis's History of the Constitution, 1-137; Story's Commentaries, §§ 198-228; Froth ingham ' s Rise of the Republic; Niles's Principles and Acts of the Revolution ; Greene's Historical View of the Revolution, 78-135; 2 Adams's Works of John Adams (notes of debates in Cont. Cong.); 1-4 Public Journals of Congress (to March 3, 1789); 1 Secret Jour- nals of Congress (domestic affairs, 1 774-88) ; 1 Stat, at Large (Bioren and Duane's ed.), 1-60; 1 Stephens's War Between the States, 52-81; 1 Calhoun's Works (disq. on government); Pollard's Lost Cause (cap. 1); Poore's Po- litical Register, and Federal and State Constitutions.
'Vol. I., p. 43. J Small's Beginnings of American Nationality, p. 76.
56 The Revolution and the Constitution
For the Declaration of Independence see 8 Bancroft's United States, 373; 4 Grahame's United States, 315; 1 J. C. Hamilton's United States, no; Frothingham's Rise of the Republic, 245-509; 3 J. Adams's Works, 45; 4 Mass. Hist. Soc. Coll. (5th Ser.), 300; 2 Wells's Life of S. Adams, 352; 1 Randall's Life of Jefferson, 124; 1 Rives's Life of Madison, 108; Greene's Historical Viczv of the Revolution, 58; I Pitkin's United States, 362. For a fac- simile of Lee's resolution, see 6 Force' 's American Archives (4th Ser.), 1700. For a facsimile of the Declaration in Jefferson's writing, with the alterations, see 1 Jefferson's Works (ed. 1829), 146. For a fair summing up of the conflicting statements of Jefferson and John Adams, see 1 Curtis's History of the Constitution, 81. See also 1 Lee's Life of R. H. Lee, 275 ; Letters of John and Abigail Adams, 190; 3, 7 Harper s Magazine ; Ser ibner s Monthly, July, 1876; Potter s American MontJdy, December, 1875; Story's Comj/ientaries, §205; 1 Calhoun's Works; 1 A. H. Stephens's War Bettvccn the States, 58; and in general Winsor's Reader's Handbook of the Revolution, 102; and authorities under Massachusetts, and under articles above referred to.
On the Mecklenburgh Declaration, see 7 Bancroft's United States, 370; 3 Hildreth's United States, 74; Frothingham's Rise of the Republic, 422; 3 Randall's Life of Jefferson, App. 2; 4 Jefferson's Works (edit. 1829), 314; Jones's Defence of the Revolutionary History of North Carolina; Graham's Address on the Mecklen- burgh Declaration ; W. D. Cooke's Revolutionary History of North Carolina; 2 Lossing's Field Book of the Revo- lution, 617; North Carolina University Magazine, May, 1853; North American Review, April, 1874; Niles's/Vzw- ciples and Acts of the Revolution, 132.
CHAPTER IV
THE OLD CONFEDERATION, 1781-1787
NOVEMBER 15, 1777, the Continental Congress adopted Articles of Confederation and Perpetual Union between the thirteen Colonies which had united in the Declaration of Independence. These were as follows, the more important being given in full. Art. I. "The style of this confederacy shall be 'The United States of America.' ' Art. 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." Art. III. "The said States hereby severally enter into a firm league of friendship with each other, for their com- mon 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, sov- ereignty, trade, or any other pretence whatever." Art. IV. secured to the free inhabitants of each State the privileges and immunities of free citizens in the several States, and provided for the mutual extradition of fugi- tives from justice. Art. V. related to the organization of Congress. It was to consist of one house, whose members were to be appointed annually by the State legislature, and were to be liable to recall by the Legis- lature at any time. Each State was to have not less than two or more than seven delegates, paid by the States,
57
58 The Revolution and the Constitution
but each State was to have but one vote. Art. VI. pro- hibited the States from alliances or treaties with any for- eign state, or with any one of the United States without consent of Congress; from granting titles of nobility; from laying imposts or duties which should interfere with treaties already proposed to France or Spain ; from keep- ing vessels of war or soldiers, excepting militia; and from engaging in war unless declared by Congress, or unless imminent danger should arise. Art. VII. allowed the States to name the army officers except those of the rank of general. Art. VIII. directed Congress to make requi- sitions upon the States for their respective quotas of the money necessary for national expenses, and ordered the State legislatures to levy the taxes necessary, "within the time agreed upon by the United States in Congress assembled." Art. IX. gave Congress the right to make peace and war, treaties and alliances, and prize rules, to grant letters of marque and reprisal, and to constitute admiralty courts; but no treaty was to restrain the State legislatures from laying prohibitory duties, or such duties as should be binding upon their own citizens. It made Congress a court for the trial of territorial disputes be- tween the States. It gave Congress power to regulate the value of coin and the standard of weights and meas- ures; to manage Indian affairs subject to the legislative rights of the States; to control the postal service, and direct land and naval forces and their operations; to bor- row money ; to make requisitions upon the States for their quotas of men and money; and to appoint a "com- mittee of the States," consisting of one delegate from each State, and any other executive committees or officers as might seem necessary. But the more important powers, such as making war, peace, treaties, or requisi- tions, borrowing, coining, or appropriating money, form- ing an army or navy, or appointing a commander-in-chief, were not to be exercised without the affirmative vote of
The Old Confederation, 1 781-1787 59
nine States ; nor should any other power, except that of adjournment from day to day, be exercised without the affirmative vote of seven States. Art. X. authorized the "committee of the States," nine of their number being present, to act for Congress in its recess, except in the more important points above mentioned. Art. XI. au- thorized Canada to join the confederacy ; but no other Colony was to be admitted without the vote of nine States. Art. XII. "solemnly pledged " the public faith of the States for the payment of the money borrowed or appropriated by Congress. Art. XIII. "Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this con- federation 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 afterward confirmed by the legis- latures of every State."
These articles were ratified, upon the order of the State legislatures, by their delegates in Congress, who "sol- emnly plighted and engaged the faith of their respective constituents" that the articles should be obeyed both by the State governments and by their people, and went into operation March 2, 1781.
The relative viciousness of the articles above given is difficult to determine. Perhaps the palm in this respect should be awarded to the theory of Article II., exempli- fied in practice by Article IX. By Article II. the new government was made in every sense a league, formed by State legislatures, ratified by State legislatures, and checked, controlled, and dominated by State legislatures. Whence the legislatures derived their authority to form, proprio vtgore, any such general league cannot be known, for the question was never mooted at the time. They
60 The Revolution and the Constitution
had never enjoyed any such authority under the British Constitution, for there ' the treaty power was a royal pre- rogative, and not in the legislature at all. But the root principle asserted and maintained in the Revolution was "the right of the people to alter or abolish " their govern- ments, and to assume the royal prerogatives.
It was the part of the people, then, and not of the State legislatures, to establish the new government, and, had the people framed these articles, the act, however unwise, would have been perfectly legal. But the seizing of the royal prerogative, in the confusion of war, by the State legislatures was evidently usurpation, extra-legislative, and to be palliated only on the assumption that popular acquiescence gave popular consent.
The whole system must therefore be considered, in our political history, as a period of interregnum, covering the time between the downfall of royal authority under the British Constitution in 1776-80, and the final establish- ment of the popular will in its place in 1789 under the American Constitution.
Of the practical application of the general theory to the other articles it is difficult to speak temperately. Congress had no power to prevent or punish offences against its own laws, or even to perform efficiently the duties enjoined upon it. It alone could declare war, but it had no power to compel the enlistment, arming, or sup- port of an army. It alone could ascertain the needed amount of revenue, but the taxes to fill the requisitions could only be collected by the State legislatures at their own pleasure. It alone could borrow money, but it had no power to repay. It alone could decide territorial dis- putes between the States, but it had no power to compel either disputant to respect or obey its decisions. It alone could make treaties with foreign nations, but it had no power to prevent individual State legislatures or
1 See State Sovereignty.
The Old Confederation, 1 781 -1787 61
private citizens from violating them at pleasure. Even commerce, foreign and domestic, was to be regulated entirely by the State legislatures.
The complete nullity of Congress was further assured by the provision which required the vote of nine States to pass important measures, for, the absence of a State delegation being as effectual as a negative vote upon matters affecting the interests of a State, the State legis- latures, in order to avoid the expense of maintaining delegates, might safely take refuge in neglect to choose members of Congress.
The only guarantee for the observance of the Articles was the naked promise of the States, and this was almost immediately found to be utterly worthless. The two essential requisites were supplied by the Constitution, which, first, provided that the supreme law of the land, above and beyond State laws or constitutions, should flow from it, and, second, created a system of United States courts, extending throughout the Union and em- powered to define the boundaries of Federal authority and to enforce its decisions by Federal power.
The United States thus lost its factitious character of a league, and took on that of a national government based on popular will. The period of gestation, beginning in 1776 with the theoretical assertion of popular will as the basis of government, ended twelve years afterward with the birth of the Constitution.
The short and inglorious history of the Confederacy, covering a period of less than eight years in all, is a dis- mal record of requisitions by Congress for money, of neglect or refusal of payment by the States, of consequent default in the payment of the principal and interest of the Federal debt, of treaties violated with impunity by State legislatures, private citizens, and foreign nations, and of foreign aggressions on American commerce, intes- tine disorders in the States, and Indian depredations on
.*.
62 The Revolution and the Constitution
the western frontier, against which the impotent Congress could give no protection.
The public debt amounted, January i, 1783, to $42,- 000,375, *ne annual interest charge being $2,415,956. Seven years afterward, by Hamilton's report, it had in- creased, through fresh loans, lapsed principal, and unpaid interest, to $54,124,463. In October and November, 1 78 1, Congress made requisitions for $8,000,000; in Jan- uary, 1783, $500,000 had been collected. During the next four years, 1782-6, Congress made requisitions for $6,000,000 to pay the interest on the public debt, and received $1,000,000.
In 1787, the first instalment of the principal of the foreign debt was to fall due, and as a preparation for this new demand the State legislatures of New Jersey and Rhode Island, in 1786, made their own paper currency legal tender for Federal requisitions. Congress was justi- fied in the declaration, in 1786, that any further reliance upon "requisitions" would be no less dishonorable to the understandings of those who entertained such confidence than dangerous to the welfare and peace of the Union.
The needful remedy, the grant of a permanent Federal revenue, was very apparent. February 3, 1 781 , before the final ratification of the Articles, Congress appealed to the States to give Congress power to levy an ad valorem duty of five per cent, to pay the interest and principal of the debt. Rhode Island refused, and Virginia, at first consenting, afterward withdrew her consent. The second of Rhode Island's three objections, that the plan "pro- posed to introduce into that and the other States officers unknown and unaccountable to them, and so was against the constitution of the State," marks with singular clear- ness the utter lack at the time of even the conception of a real national government. March 15, 1783, after men- tioning the "delay and repugnance' of the States in pay- ing the public debt, the French Minister informed the
.<
I I I I
The Old Confederation, 1 781-1787 63
Federal Superintendent of Finance that "without a speedy establishment of solid general revenue, and an exact performance of the engagements which Congress has made, you must renounce the expectation of loans in Europe."
April 18, 1783, Congress again appealed to the State Legislatures, this time for a grant of power to Congress to levy duties for only twenty-five years, through officers appointed by the States but accountable to Congress; and also for the establishment by the States of special taxes for the payment of $15,000,000 annually of the debt already due. The latter request proved so unpopu- lar that it was very soon abandoned, and every effort was made to gain the necessary consent of all the States to the former. In 1786 New York, all the other States having consented, accepted the plan, but reserved the power of levying and collecting the duties, and appoint- ing and removing the officers. Such an acceptance was of course a refusal, and New York's veto seemed for the moment to destroy all hope of the continuance of the Union. Congress, which was then in session in New York, twice appealed to the Governor to re-convene the Legislature, and the Governor twice refused, on the ground that he had no right to do so except on "extra- ordinary occasions." It had become evident that some power stronger than the persuasions of Congress was needed to wrest from the reluctant legislatures the con- trol over the revenues and commerce of the country.
That the unpaid, half-fed, and half-clothed Continental soldiers should have disbanded at the close of the war without any attempt to obtain their dues after the man- ner of the Spanish regiments in the Netherlands, by forcible levy upon a portion of the country, is attributable rather to their own patriotism, and to the commanding influence of Washington and his lieutenants, than to the gratitude of the people or the fair dealing of the States.
62 The Revolution and the Constitution
the western frontier, against which the impotent Congress could give no protection.
The public debt amounted, January I, 1783, to $42,- 000,375, the annual interest charge being $2,415,956. Seven years afterward, by Hamilton's report, it had in- creased, through fresh loans, lapsed principal, and unpaid interest, to $54,124,463. In October and November, 1 78 1, Congress made requisitions for $8,000,000; in Jan- uary, 1783, $500,000 had been collected. During the next four years, 1782-6, Congress made requisitions for $6,000,000 to pay the interest on the public debt, and received $1,000,000.
In 1787, the first instalment of the principal of the foreign debt was to fall due, and as a preparation for this new demand the State legislatures of New Jersey and Rhode Island, in 1786, made their own paper currency legal tender for Federal requisitions. Congress was justi- fied in the declaration, in 1786, that any further reliance upon "requisitions" would be no less dishonorable to the understandings of those who entertained such confidence than dangerous to the welfare and peace of the Union.
The needful remedy, the grant of a permanent Federal revenue, was very apparent. February 3, 1781, before the final ratification of the Articles, Congress appealed to the States to give Congress power to levy an ad valorem duty of five per cent, to pay the interest and principal of the debt. Rhode Island refused, and Virginia, at first consenting, afterward withdrew her consent. The second of Rhode Island's three objections, that the plan "pro- posed to introduce into that and the other States officers unknown and unaccountable to them, and so was against the constitution of the State," marks with singular clear- ness the utter lack at the time of even the conception of a real national government. March 15, 1783, after men- tioning the "delay and repugnance' of the States in pay- ing the public debt, the French Minister informed the
The Old Confederation, 1 781-1787 63
Federal Superintendent of Finance that "without a speedy establishment of solid general revenue, and an exact performance of the engagements which Congress has made, you must renounce the expectation of loans in Europe."
April 18, 1783, Congress again appealed to the State Legislatures, this time for a grant of power to Congress to levy duties for only twenty-five years, through officers appointed by the States but accountable to Congress; and also for the establishment by the States of special taxes for the payment of $15,000,000 annually of the debt already due. The latter request proved so unpopu- lar that it was very soon abandoned, and every effort was made to gain the necessary consent of all the States to the former. In 1786 New York, all the other States having consented, accepted the plan, but reserved the power of levying and collecting the duties, and appoint- ing and removing the officers. Such an acceptance was of course a refusal, and New York's veto seemed for the moment to destroy all hope of the continuance of the Union. Congress, which was then in session in New York, twice appealed to the Governor to re-convene the Legislature, and the Governor twice refused, on the ground that he had no right to do so except on "extra- ordinary occasions." It had become evident that some power stronger than the persuasions of Congress was needed to wrest from the reluctant legislatures the con- trol over the revenues and commerce of the country.
That the unpaid, half-fed, and half-clothed Continental soldiers should have disbanded at the close of the war without any attempt to obtain their dues after the man- ner of the Spanish regiments in the Netherlands, by forcible levy upon a portion of the country, is attributable rather to their own patriotism, and to the commanding influence of Washington and his lieutenants, than to the gratitude of the people or the fair dealing of the States.
64 The Revolution and the Constitution
In 1778-9 provision had been made for half-pay for the officers of the army ; the soldiers had not even been paid since 1777, when their arrearages had been settled in Continental money, the dollar being "worth about four pence."
After the adoption of the Articles in 178 1 , when the vote of nine States became necessary for appropriations, all prospect of liberality, or even of common honesty, toward the army disappeared. March 10, 1783, while the army was encamped at Newburgh, an anonymous address called a meeting of the officers, rehearsed their grievances, and advised, in case of further refusal of jus- tice by Congress, that "courting the auspices and inviting the direction of your illustrious leader, you should retire to some unsettled country, smile in your turn, and mock when their fear cometh on." Washington, by personal influence and entreaty, averted the danger, but his urgent representations induced Congress, March 22d, to make the army creditors of the United States to the amount of $5,000,000. With this act of doubtful liberality the army was perforce content, and was disbanded with no further token of gratitude from the States whose independence it had won.
Most of the States disapproved of the prodigality of Congress, and the Massachusetts Legislature solemnly protested against it as tending to "raise and exalt some citizens in wealth and grandeur to the injury and oppres- sion of others." '
In April, 1783, before the formal conclusion of peace, but after the actual close of the war, the British Parlia- ment intrusted the regulation of commerce between the United States and Great Britain to the King in Council. The Council's design was to disregard Congress, treat the
1 For the retention by Great Britain of military posts in the west, see Jay's Treaty ; for the loss of the navigation of the Mississippi, see Louis- iana.
The Old Confederation, 1 781-1787 65
several States as independent republics, and conclude consular conventions with each on England's own terms. In July, by orders in Council, all American commerce was excluded from the West Indies, and, in trading with Great Britain, American ships were to carry only the produce of their respective States. April 30, 1784, Congress asked the State legislatures to grant to Congress power for fifteen years to prohibit the entrance into the United States of vessels belonging to a foreign nation not having a com- mercial treaty with the United States. This grant was also refused, except on conditions, by ten States, and entirely refused by three. Apparently the States pre- ferred to be subject to Great Britain rather than be sub- ject to their own creature, the "foederal " Congress.
Shays s Rebellion. — The close of the war found the people of Massachusetts with no money and little prop- erty, manufactures, fisheries, or commerce, and distressed not only by State taxes but by suits for long dormant debts. During the autumn of 1786 tumultuous gather- ings of people in Western Massachusetts, roused by "the extortions of the lawyers," surrounded the court-houses and stopped the operations of the courts. Congress, under the subterfuge of levying 1300 men in New Eng- land to take part in a mythical Indian war, made a feeble attempt in October to sustain the State government ; but, before the levy was made, Governor James Bowdoin had borrowed money in Boston and sent a militia force under General Lincoln against the insurgents, who were now mustered into an army of about 2000 men under Daniel Shays, lately a captain in the Continental army. In February, 1787, Lincoln succeeded in scattering Shays's force, and driving the leaders into New Hampshire.
No extra-political event had so strong an influence in compelling the formation and adoption of the Constitu- tion as this rebellion, for it showed that the State legis- latures severally could not enforce that public order the
66 The Revolution and the Constitution
care of which they had refused to intrust to the Central Government.
A full Congress would have consisted of ninety-one delegates. In practice the presence of thirty was an unusual event, and these were not the first-rate men of the country. With some exceptions the State govern- ments were most attractive to the able and ambitious. In June, 1783, Congress was driven from Philadelphia by a handful of dissatisfied and insubordinate militiamen. December 23, 1783, by resolution, Congress informed the States that less than twenty delegates, representing seven States, had been present since November 3d, and that at least two more States must be represented to ratify the treaty of peace. The treaty was at last ratified January 14, 1784, twenty-three delegates, representing nine States, being present.
During the summer of 1787, while the convention which was to change the form of government was in ses- sion,1 Congress passed the Ordinance of 1787, which secured freedom to a large part of the country and fur- nished a model for the organization of future territories. July 14, 1788, Congress announced the ratification of the Constitution by nine States, and made arrangements for the day and place of its formal inauguration, at New York, March 4, 1789. After January 1, 1789, Congress was kept in formal existence by the presence of one or two delegates who adjourned from day to day. March 2d, it flickered and went out without any public notice.
During its existence as a Continental and a Confederate Congress the American people had suffered distress great in comparison with the periods before 1775 or after 1789, but it had at least maintained the union of the States and prepared the way for a union more intimate than would have been practicable in 1776. The hand could not have been altogether nerveless which caught the sceptre as it
1 See Convention of 1787.
The Old Confederation, 1 781 -1787 67
dropped from the hands of the King, and transferred it in safety to a government of the people.'
Reasons for the long delay in adopting articles of union (1776- 1 781) have been given as follows:
(1) The absence of leading men from Congress. Many of the leading spirits of the Colonies were in the service of their respective States, in this time of State-building or constitution-making; or they were in the service of their country abroad.2
(2) The controversy over the method of voting in the proposed new Congress.
It was decided that each State should have one vote, — owing to the lack of adequate information for determin- ing a proportionate basis. For interesting discussions on this subject by Chase, Franklin, Witherspoon, John Adams, and others, the student should read Jefferson's "Notes on the Formation of the Confederacy." 3
(3) The controversy over the method of apportioning troops and taxes.
This arose, like the issue over the method of voting, in a conflict of interests and opinions between the large States and the small. It was decided in favor of the small States, — that all charges for war and other expenses should be in proportion to the value of all land and houses, to be assessed by the legislatures of the States. The States were to raise the funds upon requests, or requisitions, by Congress. This was a fatal weakness of the Confederacy and one of the principal causes of its breakdown. The student should by all means read on this subject the proposed "Revenue Amendment of April 18, 1783," and the "Address to the States" in sup-
1 See United States, Revolution, Declaration of Independence, Conti- nental Congress, State Sovereignty, Convention of 1787.
9 Schouler. 3 Elliot's Debates, vol. i., pp. 70-78.
68 The Revolution and the Constitution
port of this amendment, written by Madison, Ellsworth, and Hamilton.1 This address is one of the notable pub- lic documents of the times and helps to throw light on the financial conditions of the Confederacy. It was New York's final veto of this proposed new revenue scheme which Marshall said "virtually decreed the dissolution of the existing government." 2
(4) Controversy over foreign trade. This suggests New Jersey's objection to the Articles of Confederation, — a State which, like "a cask tapped at both ends," in- sisted that the regulation of commerce, foreign and domestic, should not be left to the States, but should be placed under the control of Congress. New Jersey's ob- jection was sound, but it was not heeded, and the com- mercial weakness of the Confederacy, like its revenue defects, was one of the prime causes leading to the adop- tion of the new Constitution. The student should by all means read the "Objections of New Jersey," as laid be- fore Congress.3
(5) The controversy over the public lands in the West.
Maryland insisted that these lands should come into the common possession of the United States, and she persistently refused to ratify the Articles of Confederation until a guarantee of such possession were given. On this subject the student should use H. B. Adams's Maryland's Influence upon the Land Cessions.
The student should read, also, the brief "Official Letter to the States Accompanying the Articles of Confedera- tion," when they were submitted for the approval of the States, November 17, 1777. 4 — Ed.
1 Elliot's Debates, vol. i., pp. 93-100.
5 Marshall's Life of Washington, vol. ii., p. 123. See, also, Winsor's Narrative and Critical History of America, chapter on the "Confedera- tion," by the Editor.
3 Elliot's Debates, vol. i., pp. 87-90.
4 Ibid., i., pp. 69, 70.
The Old Confederation, 1 781 -1787 69
On the Confederacy, see 3, 4 Public Journals, and 1 Secret Journals of Congress (Confederacy); 10 Bancroft's United States ; 3 Hildreth's United States ; 2 Pitkin's United States ; 2 Hamilton's United States ; H. Sherman's Governmental History ; Story's Commentaries, § 218; I von Hoist's United States, 27; Blunt's Formation of the Confederacy; Frothingham's Rise of the Republic; Prince's Articles of Confederation ; 1 Curtis' s History of t he Con- stitution, 124; 2 Rives ' s Life of Madison ; 2 Marshall's Life of Washington, 108; 6 John Adams's Works ("Dis- course on the Constitution"); Sheffield's Observations on Amcricayi Commerce ; Addresses and Recommendations of Congress (containing the "Newburgh Addresses "); 8 Washington's Writings, 396; 1 Sparks' 's Life of Morris, 253; 2 Hamilton's Life of Hamilton, 185; Minot's History of Shays s Insurrection, and other authorities under Massa- chusetts; authorities under Revolution and Continental Congress. The text of the Articles, with proceedings thereon, is in 1 Statutes at Large (Bioren and Duane's edition), 10-20; in 2 Public Journals of Congress (Con- federacy); in 4 Elliot's Debates ; and in Hickey's Consti- tution, 129, 483.
For the text of the Articles of Confederation, see, also, the American History Leaflets, No. 20, which contains the original drafts of Franklin and of Dickinson; Mac- Donald's Select Documents, ijj6-i86i; American History Leaflets, No. 28, for "Proposals to Amend the Articles." See, also, Fiske's Critical Period of American History ; Morse's Life of Hamilton, ch. on "The Confederation"; Hunt's Life of Madison; McMaster's History of the United States, vol. i. ; Gordy's Political History of the United States, vol. i. ; Schouler's History of the United States, vol. i.
CHAPTER V
THE CONVENTION OF 1 787
THE fatal defects of the Confederacy had become ob- vious even during the long space of time between its adoption by Congress and its ratification by all the States. In 1780 Hamilton, then a young man of twenty- three, stated elaborately, in a private letter, the evils of the existing government and the necessity of its reforma- tion by a convention of all the States. In May, 178 1, the first public proposal of this means of revisal was made by Pelatiah Webster in a pamphlet. In the summer of 1782 the Legislature of New York, and in 1785 the Legis- lature of Massachusetts, by resolution recommended such a convention. But even after the convention had been called, Congress only approved of it at the last moment, impelled thereto by the failure of the impost plan of 1783, which New York alone refused to ratify.
The hesitation of Congress had reason. The only method of amendment allowable by the Articles of Con- federation was a unanimous concurrence of the States; but, as the evils of the Confederacy became more glaring, the flat impossibility of unanimity among the States be- came more evident. If such a convention was merely to recommend changes, it must act as a body of private per- sons, and its recommendations could have no legal or official weight except through the approval of Congress. If its recommendations were to be adopted by the ratifi- cation of all the States, the convention could plainly do no more than Congress had repeatedly and vainly done.
70
The Convention of 1787 71
If its recommendations were to be adopted by a smaller number than all the States, then plainly a real, though peaceable, revolution was to be accomplished, and this was the final result.
In the spring of 1785 the legislatures of Virginia and Maryland, in the exercise of their plenary power to regu- late commerce, had appointed commissioners to lay down joint rules for the navigation of the Potomac. Washing- ton's attention was fixed on the matter, and in March, during a visit to Mount Vernon, a plan was concerted by the commissioners for the general commercial regulation of the Chesapeake Bay and its tributaries. As this was a subject of general interest, it naturally grew into a resolution, which was passed by the Virginia Legislature, January 21, 1786, appointing eight commissioners to meet delegates from the other States at Annapolis, in the following September, to consider the trade of the United States and its proper regulation, and report to the States.
Five States (New York, New Jersey, Pennsylvania, Delaware, and Virginia) sent delegates to the meeting; four others appointed delegates who failed to attend ; and the other four made no appointments. Representing a minority of the States, the delegates merely reported that the defective system of the General Government abso- lutely prevented any hope of a proper regulation of trade, and recommended another convention for the single ob- ject of devising improvements in the Government. As the report cautiously provided that the improvements were to be ratified by the legislatures of all the States, Congress could properly sanction the proposed conven- tion, and did so, February 21, 1787. May 14th had been appointed for the meeting of the convention, but a quorum of seven States was not secured until May 25th, when George Washington, who had with extreme diffi- culty been induced to act as delegate from Virginia, was made president.
72 The Revolution and the Constitution
The delegates (fifty-five during all the four months' sittings) represented the conservative intelligence of the country very exactly; from this class there is hardly a name, except that of Jay, which could be suggested to complete the list. Of the destructive element, that which can point out defects but cannot remedy them, which is eager to tear down but inapt to build up, it would be difficult to name a representative in the convention ; and as the debates were wisely made secret, this element had no power, during the convention's four months' session, of influencing its action, or exaggerating its difficulties. Of these difficulties the first was the balancing of the op- posing ideas of the large States and the small States, and the second and third were created by the opposite feel- ings of the two sections, North and South, on the subject of commerce and the slave trade.
In short, the task of the convention was to frame such a plan of government as should induce two almost distinct nations, one with six, and the other with seven, separate constituent commonwealths, to unite into one represent- ative republic ; and the secret and method of its success will be found under the subject "compromises."
May 25th, seven States were represented (New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina) ; May 28th, Massachusetts and Connecticut, May 31st, Georgia, and June 2d, Mary- land, had competent representatives present; but New Hampshire had no delegates present until July 23d. Rhode Island was not represented at all. A more fortu- nate union of accidents for even-handed compromise could hardly have been imagined. The "large " States had, through all the preliminary debates, a majority of six to five, large enough to insure a general run of success in nationalizing the new government, but not so large as to obviate the necessity of deference to the minority.
In the proceedings of the convention the nationalizing
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party was first in the field. Hardly had the convention been organized, and rules adopted, when, May 29th, Edmund Randolph, of Virginia, presented the Virginia plan, designed to establish "a more energetic govern- ment," and reduce the "idea of States " to a minimum. It consisted of fifteen resolutions, in substance as follows: 1. That the Articles of Confederation should be corrected and enlarged. 2. That the representation in both branches of Congress should be proportioned to the quotas of contribution, or to population. 3. That Con- gress should have two branches. 4. That the first branch (Representatives) should be chosen by the people. 5. That the second branch (Senate) should be chosen by the Representatives out of a number of nominations by the State legislatures. 6. That Congress, besides the powers of the Confederacy, should legislate wherever State legislation might interrupt the harmony of the United States (that is, as to commerce, taxation, etc.), should have a veto power on State laws, and should coerce delinquent States. 7. That Congress should choose the Executive. 8. That the Executive, with a part of the Judiciary, should have a limited veto on acts of Congress. 9. That a Judiciary should be formed. 10. That new States should be admitted. n. That the United States should guarantee a republican government to each State. 12. That all the obligations of the Con- federacy should be assumed. 13. That provision should be made for amendments. 14. That members of State governments should be bound by oath to support the new government. 15. That the new Constitution should be ratified, not by the State governments, but by popular conventions.
Charles Pinckney, of South Carolina, the same day submitted a draft of a constitution in sixteen articles, which, as printed, follows the general idea of the Vir- ginia plan, but agrees in so many particulars with the
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Constitution as finally adopted that it is probable that it was altered as the debates proceeded.
May 30th, the convention, in committee of the whole, took up the Virginia plan, and continued the examination of each resolution in turn until June 13th, when the plan, in nineteen resolutions, was reported favorably to the convention. The main changes produced by the debate had been, that a national government ought to be estab- lished ; that the Representatives should hold office for three years, and the Senators (chosen directly by State legislatures) for seven years; that the power of coercing delinquent States should not be granted; that the Ex- ecutive should consist of one person, elected for seven years and ineligible the second time; and that the Execu- tive alone should possess the veto power. The next day a request was made for adjournment, as a federal, or league, system was in preparation. It was offered the following day, June 15th, by William Paterson, of New Jersey, and was therefore generally known as the Jersey plan. It was in substance as follows: 1. That the Ar- ticles of Confederation should be revised, corrected, and enlarged. 2. That Congress (remaining still a single body) should be given the additional powers of taxation and regulation of commerce. 3. That the system of requisitions should be continued, with power in Congress to enforce their collection in delinquent States. 4. That Congress should choose the Executive. 5. That a Ju- diciary should be established. 6. That members of State governments should be bound by oath to support the Constitution. 7. That acts of Congress and treaties should be "the supreme law of the respective States," "anything in the respective laws of the individual States to the contrary notwithstanding"; and that the Execu- tive should coerce refractory States or individuals. 8. That new States should be admitted. 9. That provision should be made for deciding State disputes as to territory.
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10. That naturalization should be uniform. II. That citizens of a State, committing crimes in another State, should be punished by the State whose peace had been broken.
June 16th, the convention again went into committee of the whole on both plans, and, June 19th, reported the inadmissibility of the Jersey plan, and an adherence to the Virginia plan. During the debate, June 18th, Alex- ander Hamilton, of New York, objecting very strongly to the Jersey plan, as a continuation of the vicious State sovereignty of the Confederation, and almost as strongly to the Virginia plan, as only (to use his own phrase) "pork still, with a little change of the sauce," proposed a plan of his own, whose main features were that the assembly (Representatives) were to be chosen by the people for three years, the Senate to be chosen for life by electors chosen by the people, and the governor (Presi- dent) to be chosen for life by electors, chosen by electors, chosen by the people; and that the State governors should be appointed by the Federal Government, and should have an absolute, not a limited, veto on the acts of their State legislatures. His plan was "praised by everybody and supported by none."
Until July 23d, the convention was busy in debating the nineteen resolutions referred to it, and in compro- mising the opposite views of its members. July 24th, its proceedings and compromises, Pinckney's plan, and the Jersey plan were given to a "committee of detail," consisting of five members, and July 26th, three new resolutions were given to the same committee, and the convention adjourned until August 6th, when the com- mittee of detail reported a draft of a constitution, in twenty-three articles. This draft, in essentials, begins already to bear a strong resemblance to the present Con- stitution, in which, however, the twenty-three articles are consolidated into seven. In the draft, the preamble
76 The Revolution and the Constitution
read, "we, the people of" the several States (naming them in order). By its ninth article the Senate was made a court to try disputes between States as to territory.1 By other articles the President, with the title of "His Excellency," was to be chosen by Congress for seven years, and not eligible for a second term, and was to be impeachable by the House of Representatives and tried by the Supreme Court; and there was no provision for a Vice-President, the Senate choosing its own president.
During the debate on the draft, which lasted for over a month, the third great compromise, giving to Congress complete control over commerce, and to Georgia and South Carolina in return twenty years' continuance of the slave trade, was adopted ; the Vice-President's office was created ; the electoral system was introduced, and the fugitive-slave clause added to Article IV.
September 12th, the amended draft was given to a com- mittee of five, Gouverneur Morris, Johnson, Hamilton, Madison, and King, for revision of its style and arrange- ment. In the committee, by common consent, the work was intrusted mainly to Morris, who could therefore fairly claim, nearly thirty years afterward, that "That instru- ment [the Constitution] was written by the fingers which write this letter."
September 13th, the Constitution was reported to the convention very nearly in its present form. Some few changes were made: the three-fourths vote required to pass bills over the veto was changed to a two-thirds vote; the method of amendment by general convention was added ; and a motion for a bill of rights was lost by a tie vote. Several propositions for new articles were voted down, as introduced too late in the day. The convention then settled on a rule which, however necessary, was to hazard most seriously the adoption of its work. It voted down a proposition for a new convention, to consider the 1 See Confederation, Articles of, IX.
The Convention of 1787 77
amendments which might be proposed by the States, thus throwing down the gage of battle to the destructive ele- ment, and forcing upon the States the alternative of un- conditional adoption or rejection of the Constitution as it came from the convention's hands.
The consequences were at once apparent. Many dele- gates, such as Randolph, Gerry, and Mason, who had entered the convention with the most angry antipathy to the State sovereignty of the Confederacy, were now taken aback by a complete view of the very national system which had grown up under their fingers. In spite of an urgent appeal from Washington, and a dexterous sugges- tion of Dr. Franklin that the Constitution should be signed only as "Done in Convention by the unanimous consent of the States present," without expressing any approval of it, sixteen of the fifty-five delegates who had personally attended refused or neglected to sign it. Of these, two, Yates and Lansing, of the three New York delegates, had left the convention in disgust, July 5th, on the adoption of the first compromise. September 17th, having by resolution requested the Congress of the Confederacy to submit the Constitution to popular State conventions, and to provide for putting it into effect when ratified, the convention adjourned finally.
The Constitution, the resolutions of the convention, and a letter from Washington, its president, were trans- mitted to the Congress of the Confederacy, then in ses- sion, and that body, September 28th, by resolution unanimously passed, directed copies of these papers to be sent to the State legislatures, to be submitted to State conventions.
No attempt has been made to give any details of the extended and voluminous debates of the convention, but they constitute an essential part of its history. In the debates the leaders of the nationalizing party were Ham- ilton, Madison, King, Wilson, and Gouverneur Morris;
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of the decentralizing, or State rights, party, Lansing, Yates, Paterson, Luther Martin, and Bedford ; of those who began with the former, and ended with the latter, Gerry, Mason, and Randolph ; and of the shifting vote, which, with a natural bent one way or the other, was always anxious for conciliation and compromise, Franklin, Johnson, Sherman, Ellsworth, and the two Pinckneys.
The injunction of secrecy laid upon the debates and proceedings was never removed. The last act of the convention was a resolution that its papers should be left with Washington, subject to the order of the new Con- gress, if ever formed under the Constitution. March 19, 1796, Washington deposited in the State Department three manuscript volumes; the first (in 153 pages) being the journal, the second (in 28 pages) the proceedings in committee of the whole, and the third (in 8 pages) the yeas and nays. The whole was published, with additions from Madison's notes, by the State Department in October, 1819.
Ratification. — In accordance with the desire of the convention, the Congress of the Confederacy, by reso- lution of September 28, 1787, referred the Constitution to State conventions, to be called by the State legis- latures, for their approval or rejection. As the main work of the new instrument was the creation of a stronger Federal Government, the people divided at once into Federalists and Anti-Federalists. The ratifications were as follows: Delaware, December 7, 1787, unanimously; Pennsylvania, December 12th, 46 to 23; New Jersey, December 18th, unanimously; Georgia, January 2, 1788, unanimously; Connecticut, January 9th, 128 to 40 ; Massachusetts, Feb. 7th, 187 to 168; Maryland, April 28th, 63 to 12; South Carolina, May 23d, 149 to 73; New Hampshire, June 21st, 57 to 46; Virginia, June 26th, 89 to 79; New York, July 26th, 31 to 27 (on the final vote). North Carolina, August 2d, by 184 to 84,
The Convention of 1787 79
refused to ratify without a bill of rights and amendments. In February, 1788, the Rhode Island Legislature refused to call a convention, and referred the Constitution to the town meetings, where it was rejected in March by 2708 votes to 232. The ratification of the ninth State, New Hampshire, gave the Constitution life, and announced that the Confederacy was to be succeeded by a new form of government which, while retaining many league fea- tures, should rest upon national popular will as its basis.
It would hardly be inaccurate to say that the friends of the Constitution would have been found between the coast and a line fifty miles west of it. West of the latter line lay the opposition. The States where ratification was easy were mainly commercial States. Of these, New Jersey had originally objected to the Articles of Con- federation because they gave no protection to commerce ; South Carolina's commerce was a far larger part of her wealth in 1788 than at any time since; Georgia was further influenced by her position as a frontier State, ex- posed to the powerful Southern Indian tribes, and anxious for protection by a strong Federal Government ; and Maryland and Connecticut, having large and vague claims to territory in the Northwest, had solider hopes of jus- tice from a firm Federal Government than from the Confederacy.
In the agricultural States ratification was difficult. Massachusetts was not then, as now, packed with manu- factories. Her strength lay in agriculture, and her farmer delegates, with only Samuel Adams as a leader, and John Hancock as a doubtful ally, held their ground obstinately from January 9th until February 7th, against the argu- ments of such able Federalist advocates as Fisher Ames, Theophilus Parsons, Rufus King, Theodore Sedgwick, Dana, Gorham, and Bowdoin.
The final action was called the "Massachusetts plan," a ratification supplemented by a warm recommendation
8o The Revolution and the Constitution
of certain amendments. Only one of these (Amendment X.) was afterward adopted. The New Hampshire con- vention met February 17th, a majority of its delegates being instructed against ratification, and adjourned until June, when a majority of eleven was obtained for ratifi- cation on the "Massachusetts plan."
In Virginia the Anti-Federalists had able leaders, includ- ing George Mason, James Monroe, and the eloquent and popular Patrick Henry ; the Federalists were led by James Madison, John Marshall, and Edmund Randolph who had drawn up the "Virginia plan" for the convention, had refused to sign the completed Constitution, but now de- cided to support it. The essence of the Virginia opposi- tion may be found in two sentences in the debate : "Why are such extensive powers given to the Senate? Because the little States gained their point " It was only very re- luctantly that Virginia, then more powerful than New York, gave up her commanding position of sovereignty for membership in the Union.
In New York the agricultural delegates preferred a con- tinuance of the privilege which they had enjoyed under the Confederacy, of exempting themselves and their con- stituents from taxation by retaining to the State the power of levying duties at the port of New York. They were headed by Governor Clinton, Robert Yates, and John Lansing (the last two having been delegates to the convention), and at first had a strong majority over the Federalists, who were led by Alexander Hamilton, John Jay, and Robert R. Livingston. The ratifications of New Hampshire and Virginia weakened the opposition of the New York Anti-Federalists so far that they offered a conditional ratification, reserving to New York the right to secede if the amendments which she offered were not acted upon within six years. This was rejected as worse than no ratification, and the Federalists, July 23d, by a vote of 31 to 29, succeeded in changing the words "on
The Convention of 1787 81
condition" into the phrase "in full confidence" that New York's list of amendments would be acted upon. In this halting and ungracious form the ratification was finally passed, July 26th.
In Rhode Island the country or agricultural party were fanatical believers in the virtues of their State paper cur- rency, and refused even to consider a Constitution which would destroy their fetish. The city or commercial party were at first powerless, though they assured the conven- tion of their sympathy; but they were enabled to bring the State into the Union in 1790 by virtue of the strong hints conveyed in propositions before Congress for the restriction of Rhode Island commerce. North Carolina's action was due to her desire to compel a second general convention, which New York had demanded and Virginia had recommended. North Carolina finally ratified in November, 1789.
On the Convention of 1787, see 1 Hamilton's Life of Hamilton, 284; 3 Hildreth's United States, 477, 482; 3 Hamilton's United States, 520; 9 Washington's Writings, 509; 2 Marshall's Life of Washington, 105 ; 2 Rives's Life of Madison ; 1 Curtis's History of the Constitution, 341 ; 1 Elliot's Debates, 116 (Report of the Annapolis Con- vention); 2 Hamilton's Works, 336, 409; 12 Journals of Congress (edit. 1800), 15; Story's Commentaries, § 272; 2 Curtis's History of the Constitution; Jameson's Consti- tutional Convention ; Journal of the Convention of 1787 ; Yates's Secret Proceedings of the Convention; 5 Elliot's Debates ("Madison Papers"); 3 Sparks's Life of Gouver- neur Morris, 323; H. B. Dawson's The Federalist (In- troduction), and Jay's Letters in answer.
The material for the study of the Constitutional Con- vention of 1787 is now very extensive. Besides Madi- son's Journal of the Convention,* which all students
1 Elliot's Debates, vol. vol. 1. — 6.
82 The Revolution and the Constitution
should use, we have now the Documentary History of the Constitution, ij8j-i8jo.x There are also numer- ous secondary authorities of value, of later date than those mentioned by Professor Johnston. See for a bibliography, W. E. Foster's References to the Constitu- tion of the United States; Edwin D. Mead's The Const i- tutiou of the United States, with bibliography; Johnston's "United States," in Encyclopcedia Britannica, bibliog- raphy at the end of the article; Woodburn's syllabus, The Making of the Constitution, an outline of Madison's Journal, with bibliography; and Carson's History of the Celebration of t lie iooth Anniversary of the Constitution. Among recent valuable articles the student is referred to Professor Ferrand's "The Compromises of the Constitu- tion," in the American Historical Review, for April, 1904 ; and "Pinckney's Plan for a Constitution," in the same magazine for July, 1904. — Ed.
1 Two vols., Washington, 1894, Bulletins of the Bureau of Rolls and Library of the Department of State.
CHAPTER VI
THE TERRITORIES AND THE ORDINANCE OF 1 787
BEFORE the American Revolution the thirteen Colo- nies were "territories" of the British Empire; that is, they held much the same relation to the British Em- pire that the present Territories hold to the United States. They had many political privileges: they had assemblies of their own, which made their local laws, Jaid their local taxes, and paid their local officers; three of them until 1691, and two of them thereafter, elected their own governors (Massachusetts, Connecticut, Rhode Island) ; and in very many respects all of them were self- governing commonwealths. But, whatever the Colonies may have thought of the matter, in the view of the mother country these privileges had their basis in the continuing will of the British sovereignty.
The king had no right, theoretically, to alienate per- manently any of the prerogatives of the Crown ; and when his judges or his Parliament advised him that any of the privileges which he had granted to the Colonies were abused, or proved to be inherently vicious, it was his duty to revoke or alter them. Even a "charter," in this way of looking at it, had no inherent sanctity ; it was no contract between king and people, but a grant by the king of privileges whose permanence was conditioned on the advantage of their results to the mother country.
Connecticut had the privilege of electing its own gov- ernors down to the Revolution ; but the privilege had no
83
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solider basis than in Massachusetts, where it was revoked in the Charter of 1691. Of course the Colonies saw the matter differently. But we are considering now only the view taken by the sovereignty in both cases; and from that point of view it is difficult to see any great difference between the status of the Colonies under the British Em- pire and of the Territories under the United States. Both had political privileges, but in both the continuance of the privileges was dependent on the continuing will of the superior, and on the advantages of the arrangement to the superior.
The history of the Territories of the United States will, it is confidently submitted, show the infinite su- periority of the American over the British colonial policy. Indeed, its superiority has become so apparent that the British policy has of late years been radically altered in the direction of the American policy.
ACQUISITION. i. Under the Colonies. — Six of the Colonies, New Hampshire, Rhode Island, New Jersey, Delaware, Pennsylvania, and Maryland, had defined western boundaries; the other seven, Massachusetts, Connecticut, New York, Virginia, North Carolina, South Carolina, and Georgia, had none, unless we may consider the Pacific Ocean, assigned in the charters and grants of most of them, as a western boundary.
There were some irregularities. The boundaries of New Hampshire were always exceedingly vague; and, though most of them were settled by convention with Massachusetts, the New Hampshire authorities asserted an indefinite claim to the territory to the west, to which New York long opposed an equally indefinite claim.
New York, as it came into the hands of the English, consisted only of the strip of land on both sides of the Hudson River which the Dutch had settled. To the north and west of Albany there was a vast extent of In- dian territory, whose tribes had either been conquered by
Territories and the Ordinance of 1787 85
the Dutch or had made treaties with them. New York, therefore, claimed a sort of suzerainty over it, without any express grant from the king. The claim was in effect recognized by the king's proclamation of 1763, constituting the province of Quebec, and by the act of Parliament of 1774, denning its boundaries: the two ran the boundary line between Canada (Quebec) and New York very much as at present. This really satisfied New York, and yet that Colony, perhaps to call attention away from the vagueness of its acknowledged title, con- tinued to assert a much vaguer claim to still further Western territory.
Massachusetts, Connecticut, Virginia, and the Colonies to the south were bounded west by the Pacific Ocean in their grants. Virginia asserted that her northern boun- dary ran northwest, instead of west, so that her territory was continually widening as it went westward. The boundaries of Maryland and of the western part of Penn- sylvania conflicted with Virginia's claim, but Virginia yielded in these respects, for the purpose of establishing the rest of her claim. South Carolina had really been given a western boundary by the formation of the Colony of Georgia, which cut off her further expansion to the west ; but it was not yet known whether Georgia covered the whole western boundary of South Carolina, and the latter Colony claimed that a narrow strip along the northern edge of its former territory still remained. If there was any such strip it was not more than a dozen miles wide.
The king's proclamation of October 7, 1763, after con- stituting the new provinces of Quebec and the Floridas, declared it to be his "royal will and pleasure," as to the territory between them," to reserve under our sovereignty, protection and dominion, for the use of the said Indians, . . . all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from
86 The Revolution and the Constitution
the west and northwest." This was clearly the establish- ment of a western boundary for all the Colonies which had hitherto had none; and the ground of the establish- ment was as clearly the asserted right and duty of the king to modify his grants and charters, when their results proved to be injurious to the interests of the Empire. The right was always denied by the Colonies, and their resistance to it was one of the most powerful forces which led to the Revolution ; and yet, curiously enough, when independence was established, this very proclamation was asserted by the States which had original western boun- daries as a valid assignment of a western boundary for the others.
Virginia hardly showed enterprise in asserting west- ern claims commensurate with their magnitude and im- portance. The first Virginia exploring party crossed the Blue Ridge in 1666; but it was not until 171 2, under Spotswood's administration, that the country beyond the mountains was reduced to possession. Before the middle of the eighteenth century, settlements had crossed the mountains. The organization of the Ohio Company in 1748-9 was due to individual Virginia enterprise; but in the French and Indian War, which followed it, Virginia supported the Company with her whole force. The place of the first struggles, though now in Western Pennsyl- vania, was then supposed to be in Virginia. In 1774, Governor Dunmore led the Virginia forces against the Scioto Indians, and compelled them to make peace; but his motives in the expedition were strongly suspected to be selfish.
The settlement of Kentucky was also due to individual enterprise; and its formal establishment as a Virginia county in 1776 was almost forced on Virginia by George Rogers Clark, a Virginia surveyor resident in Kentucky. Clark at once became the champion of Virginia's inter- est in the Northwest. In 1778-9 he led a Kentucky
Territories and the Ordinance of 1787 87
force into Illinois, and conquered that territory and Vin- cennes, now in Indiana; and the whole was made the county of Illinois by the Virginia Legislature. But little attempt was made by Virginia to incorporate the con- quest; and at the time of the first cession in 1784 it is improbable that there was any Virginia government in Illinois.
North Carolina asserted her western claims with more energy and success. The first assertion was due to indi- vidual enterprise. The first settlement of Tennessee was by hunting parties, and by persons who had found the disturbed state of North Carolina under the royal gov- ernor unpleasant. In 1776 their settlements were made "Washington district " of North Carolina; and, as settle- ments increased, other counties were formed. After the first cession, in 1784, the Tennesseans revolted, and formed the State of Franklin, or Frankland; but North Carolina revoked her cession, and suppressed the Franklin revolt. The authority of the State was thus established from the Atlantic to the Mississippi.
Other Colonies dealt in nothing but assertions. None of them made any practical effort to maintain their claim to territory beyond their present western boundary, with two exceptions. Connecticut made a long but finally unsuccessful attempt to oust Pennsylvania from a part of her territory, and Massachusetts compromised her claims to the territory of New York.
2. Under the Confederation. — The essential importance of the Western territory was as a bond for holding the States together during and after the Revolution. The Revolution was undoubtedly begun under a vague idea of separate State action in theory, with a controlling ne- cessity for national action in practice ; and the Articles of Confederation were carefully framed with the view of securing as much of the former and as little of the latter as possible. So strong was the particularist feeling in the
88 The Revolution and the Constitution
different States that they were only held firmly together by the first flush of the war feeling; and as this influence relaxed, the tendency to disintegration grew more plainly evident.
At first sight, the most powerful opposing force to this disintegrating tendency was the common commercial in- terest which grew up throughout the States; but the possession of the Western territory was a more powerful, though more silent, force, for it reached States which the other force did not touch. If the Western territory was to be retained and utilized, but two courses were open : to allow all the States to engage in a general scramble for it, in which each State should secure as much of its claims as it could enforce ; or to accept it as national property, defend it by national force, and govern it by national authority. To allow the national bond to break alto- gether, through the default of the Articles of Confedera- tion, would have had the former result ; and in this instance, as in others, the prejudices of the people at last gave way to their common-sense, and they chose the latter. But the process by which they were brought to this conclusion made up one of the vital issues of Ameri- can politics from 1778 until 1784.
In the beginning Congress seems to have had no notion that the Western lands were national property. Among its measures to raise an army, September 16, 1776, it promised grants of lands to officers and soldiers, but was careful to provide that the money necessary "to procure such lands " should be assessed upon the States like other expenses. October 15, 1777, before the Articles of Con- federation were proposed to the States, a motion was made in Congress to add a provision that Congress should be empowered to fix the western boundaries of the claimant States, and to divide the Western territory into independent States; but only Maryland voted for it. Clark's expedition to the Illinois country in 1778, and
Territories and the Ordinance of 1787 89
Virginia's sudden prospect of boundless territorial wealth, threw the apple of discord among the States.
Heretofore the claimant States had been content to claim, without taking active steps to enforce their claims; and their extreme demand had been only the negative provision of the ninth article of confederation, that "no State shall be deprived of territory for the benefit of the United States." Ten of the States, all but New Jersey, Delaware, and Maryland, had already ratified the Articles; but most of them had ordered their delegates to propose alterations before signing. When the proposed altera- tions were considered in Congress, June 22-25, I77%> ft was found that Maryland proposed to alter the ninth article by empowering Congress to fix the western boun- daries of the claimant States; that Rhode Island proposed to alter it by empowering Congress to sell Crown lands within the States; and that New Jersey only protested against the article as it stood, as unfair to the non- claimant States. All amendments were voted down. Eight of the States signed the Articles, by their delegates, July 9th; North Carolina, July 21st; and Georgia, July 24th. New Jersey, Delaware, and Maryland refused to sign. New Jersey yielded first : her delegates signed the articles November 26, 1778, relying on "the candor and justice of the several States " for cessions of their claims. The Delaware delegate signed February 22, 1779, protesting at the same time that his State was justly entitled to a share in the territory which had been won "by the blood and treasure of all."
Maryland was now the only obstacle, but it proved for some time insuperable. December 15, 1778, that State formally instructed her delegates "not to agree to the Confederation," unless the ninth article should be amended as she had desired; and the letter of instruc- tions demanded that the Western territory "should be considered as a common property, subject to be parcelled
90 The Revolution and the Constitution
out by Congress into free, convenient, and independent governments, in such manner and at such times as the wisdom of that assembly shall hereafter direct."
This seems to have been the first official proposal of that extension of the Federal system which had been first suggested in 1777, probably also by Maryland, and which has been the secret of the success of the American policy.
Maryland held out for three years; and during that time the Articles hung fire. At first her opposition threatened to provoke an explosion, for some of the claimant States seem to have been willing to break up the Union rather than surrender their claims. December 19, 1778, Virginia formally offered to put the Articles in force with any one or more States which should ratify them as they stood, so that Maryland at least would have been left out of the Union; and Connecticut agreed, April 7, 1779. But Maryland remained firm; and her firmness, and perhaps the discovery that Virginia's claim, if allowed in full, would neutralize those of the Northern States, gradually turned the scale of opinion against Vir- ginia. February 19, 1780, New York led the way by empowering her delegates to agree to a western boun- dary, and relinquishing all claims beyond.
The ceded territory was to be held for the use of "such of the United States as shall become members of the federal alliance," and for no other purpose. By this New York really gave up nothing, and gained a certain instead of a doubtful boundary. But the precedent was a prom- ising one, and Congress used it to pass a resolution, Sep- tember 6, 1780, "earnestly recommending" the other claimant States to follow New York's example, and "earnestly requesting" Maryland to ratify and sign the Articles. This was followed, October 10th, by another resolution, in which Congress committed itself to Mary- land's proposed extension of the Federal system, promis- ing that the territory ceded should be "formed into
Territories and the Ordinance of 1787 91
distinct republican States, which should become members of the Federal Union, and have the same rights of sov- ereignty, freedom, and independence as the other States."
From this line of policy Congress has never swerved, and it has been more successful than stamp acts or Boston port bills in building up an empire.
In October, 1780, Connecticut offered to cede her claims, reserving a tract along Lake Erie. January 2, 1781, while Arnold was ravaging Virginia, that State offered to cede her claims northwest of the Ohio, on condition that Congress would guarantee her possession of Kentucky and the larger part of Tennessee. Neither of these offers was accepted by Congress, but the prospect was so encouraging that Maryland at once empowered her delegates to sign the Articles, and they did so, March 1, 1 78 1. On the same day the New York delegates as- sented to the western boundary of the State, on condition that the same guaranty should be given to New York as to any other State. Thus the Articles of Confederation went into force without any real settlement of the terri- torial question, for the only cession likely to be accepted had amounted to nothing.
October 30, 1779, Congress had passed a resolution, against the votes of Virginia and North Carolina, recom- mending Virginia to close her land office and forbear issuing land warrants until the end of the war. October 29, 1782, the persistent Maryland delegates moved that the cession of New York be accepted by Congress, and the motion was carried against the vote of Virginia, North and South Carolina being divided, and Massachu- setts having but one delegate and no vote. The purpose of this action was to get a fulcrum from which to operate on the claim of Virginia, and it was effective.
The claim of New York to her own territory west of Albany was derived from her supremacy over the "Six Nations" ; and this was now recognized by all the States.
92 The Revolution and the Constitution
But the Six Nations had always asserted a general right by conquest to all the territory west of New York, Penn- sylvania, Virginia, and North Carolina. If this also were admitted, it also had passed to New York, and had been ceded by New York to Congress ; and the whole Western territory was already national property, without the for- mality of a cession by Virginia or any other State. May i, 1782, a committee had made an elaborate report to Congress. It upheld the claim of New York to its full extent; considered the jurisdiction of the whole Western territory, including Virginia's claim, to be already vested in Congress by New York's cession of it ; and recom- mended Virginia to make a new and full cession. Con- sideration of the report was postponed, but it was evidently high time for Virginia to cede the Northwest Territory absolutely and gracefully, if she desired to save Kentucky and her land warrants there.
The act of cession was passed by the Virginia Legis- lature, October 20, 1783, and the deed was executed by her delegates in Congress, March 1, 1784. Under the circumstances, the terms accorded to the State were suffi- ciently liberal ; the land titles of Virginia settlers were to hold good ; the expenses of the State in conquering the territory were to be repaid to her ; 1 50,000 acres were re- served for Clark and his troops; and any deficiency in Virginia land warrants in Kentucky and Tennessee was to be made good in the Northwest Territory.
The ceded territory was to be organized according to the Federal policy which Congress had outlined in Octo- ber, 1780. A supplementary act of cession was presented in Congress, December 30, 1788; but this was only to conform the original act to the terms of the Ordinance of 1787. Virginia's cession was complete in 1784.
Massachusetts made an unqualified cession of her claims west of Niagara River, April 19, 1785, in accordance with an act of the Legislature of November 13, 1784.
Territories and the Ordinance of 1787 93
Congress had not as yet accepted Connecticut's prof- fered cession, on account of the reservation of a tract ex- tending from the Pennsylvania line 120 miles westward. But Connecticut had loyally accepted the award of Con- gress against her in the case of Wyoming, and Congress at last accepted her cession, May 26, 1786. April 28, 1800, an act of Congress authorized the President to deed to Connecticut the title to this "western reserve," on condition that Connecticut should surrender all claim to its jurisdiction, and abandon any claim to the territory within the limits of New York ; and the State fulfilled the conditions, May 30th.
August 9, 1787, South Carolina made an unqualified cession of her claims west of a line from the head of Tugaloo River to the North Carolina boundary. The actual cession was a strip of land about twelve miles wide. That portion of it which is now a part of Georgia was transferred to that State in part return for its cession in 1802.
The South Carolina cession closed the formal record of acquisitions of territory under the Confederation; but there were two more cessions, which, though made under the Constitution, were only belated completions of Con- federation arrangements. North Carolina ceded Tennes- see in 1784; but, before Congress could meet, and accept the cession, it was revoked on account of the anger it excited in Tennessee. Five years later, this feeling had disappeared. In December, 1789, the North Carolina Legislature made another cession of Tennessee, which was accepted by act of Congress of April 2, 1790. The North Carolina titles and military land warrants were to hold good, and the territory was to be organized as the Northwest Territory had been, "provided always, that no regulations made or to be made by Congress shall tend to emancipate slaves."
Most difficulty was met in the case of the claims of
94 The Revolution and the Constitution
Georgia, covering the present States of Alabama and Mississippi, north of parallel 310 and south of the South Carolina cession. It had been claimed by South Caro- lina, because the original grant to the Carolina proprietors covered the territory between parallels 310 and 360 west to the South Seas. But the proprietors had transferred their rights to the king; the king had formed the Colony of Georgia in 1732, and given to it the territory between the Altamaha River and the most northern part of the Savannah, westward to the South Seas ; and his proclama- tion of 1763 had annexed to Georgia the territory between the Altamaha and the St. Mary rivers. In 1787 the two States made a treaty at Beaufort, by which South Caro- lina obtained the territory afterward ceded by her, and Georgia the rest. Georgia took no steps to cede her share to the United States, but made preparations to reduce it to possession.
April 7, 1798, an act of Congress organized the Terri- tory of Mississippi, but it covered less than half of the present extent of the State. Its southern boundary was parallel 310; its northern boundary a line due east from the mouth of the Yazoo to the Chattahoochee. This territory had been annexed by the king to West Florida, and was claimed by the Congress of the Confederation as common property under the treaty of peace in 1783. February 1, 1788, Georgia had passed an act ceding this part of the territory to the United States, on condition of being guaranteed the rest of her claims. This Con- gress refused to do, July 15, 1788, and the cession fell through.
Spain, by the Treaty of 1795, abandoned all claim to this part of the territory, and the act of 1798 proceeded to organize it into a territory, in spite of Georgia's claims to it; but the same act authorized the appointment of commissioners to treat with Georgia for all her western claims. Madison, Gallatin, and Lincoln were appointed
Territories and the Ordinance of 1787 95
commissioners; and the act of May 10, 1800, gave them full power to treat, provided that no money was to be paid by the United States except out of the proceeds of the lands ceded. April 24, 1802, the commissioners agreed upon an arrangement by which Georgia was to cede all her western claims, and receive in return the pro- ceeds of not more than 5,000,000 acres, or $1,250,000. Previous titles were to hold good ; and slavery was not to be prohibited in the new territory.
The agreement was confirmed by the Georgia act of June 16, 1802, and the act of Congress of March 3, 1803; and the ceded territory was added to Mississippi Terri- tory by act of March 27, 1804. A provision in the ces- sion for the extinguishing of Indian titles in Georgia by the United States gave some further trouble.
The Ordinance of ij8j was the organic law under which took place the organization of the territory west of Pennsylvania, east of the Mississippi, and north of the Ohio.
After the completion of the Virginia cession, Jefferson, as chairman of a committee of three on the subject, re- ported to the Congress of the Confederation a plan for the temporary government of the Western territory.
As the conflicting claims of the partisans of Jefferson, Rufus King, and Nathan Dane are apt to confuse the reader, it seems best to give the peculiar features of Jefferson's report, which was adopted April 23, 1784. 1. It covered the whole Western territory, ceded or to be ceded, south as well as north of the Ohio. 2. Seventeen States, each two degrees in length from north to south, were to be gradually formed from it; one between Penn- sylvania and a north and south line through the mouth of the Great Kanawha; eight in a north and south tier, bounded on the west by a north and south line through the great falls of the Ohio ; and the remaining eight in a corresponding tier bounded west by the Mississippi.
96 The Revolution and the Constitution
Even the names were to have been provided for the pro- spective States of the Northwest, including such singular designations as Chersonesus, Sylvania, Assenisipia, Meso- potamia, Polypotamia, and Pelisipia, together with the less remarkable titles of Saratoga, Washington, Michi- gania, and Illinoia. 3. "After the year 1800 there shall be neither slavery nor involuntary servitude in any of the said States other than in the punishment of crimes, whereof the party shall have been duly convicted." This prohibition, therefore, was to have been prospective, not immediate, and to have applied to all new States from the Gulf of Mexico to British America. This pro- viso was voted on April 19th. New Hampshire, Massa- chusetts, Rhode Island, Connecticut, New York, and Pennsylvania voted for it ; Maryland, Virginia, and South Carolina, against it; North Carolina was divided; and New Jersey, Delaware, and Georgia were unrepresented. Not having seven States in favor, the proviso was lost. Delaware and Georgia were entirely unrepresented ; New Jersey had one delegate present, who voted for the pro- viso, but a State was not "represented" except by at least two delegates. The language of the proviso, how- ever, became a model for every subsequent restriction upon slavery. 4. The States were forever to be a part of the United States, to be subject to the government of the United States, and to the Articles of Confedera- tion, and to have republican governments. 5. The whole was to be a charter of compact and fundamental consti- tutions between the new States and the thirteen original States, unalterable but by joint consent of Congress and the State in which an alteration should be proposed to be made.
With the adoption of the report, except the anti- slavery section, Jefferson's connection with the work ceased. He entered the diplomatic service in the follow- ing month, and remained abroad until October, 1789.
Territories and the Ordinance of 1787 97
March 16, 1785, Rufus King, of Massachusetts, after- ward of New York, offered a resolution that slavery in the whole Western territory be immediately prohibited. The language is Jefferson's, excluding the words "after the year 1800," and changing "duly convicted" into "personally guilty." By a vote of eight States to three this was committed, and a favorable report was made, April 14 (probably); but it was never acted upon.
In September, 1786, Congress again began to consider the government of the territory, and a committee, of which Nathan Dane, of Massachusetts, was chairman, framed the "Ordinance of 1787," which was finally adopted, July 13, 1787.
The fairest view is that Jefferson's report was the framework on which the Ordinance was built : the general scheme was that of the former, but the provisions were amplified, and the following changes and new provisions were made: 1. The prohibition of slavery followed Jefferson's, excluding the words, "after the year 1800," thus making it immediate, and adding a fugitive slave clause. This article, says Dane, in a letter of July 16, 1787, to King, "I had no idea the States would agree to, and therefore omitted it in the draft; but, finding the house favorably disposed on this subject, after we had completed the other parts, I moved the article, which was agreed to without opposition." 2. On the other hand, as this was an ordinance for the government only of the territory northwest of the Ohio, its prohibition of slavery was territorially only about half as large as Jeffer- son's; and this may help to explain the different fates of the two. A further explanation of the passage of Dane's ordinance, even with a prohibition of slavery, has recently been brought to light by Mr. W. F. Poole (see North American Review, among the authorities): in 1787 Dr. Manasseh Cutler, agent of the Ohio Land Company in Massachusetts, was ready to purchase 5,000,000 acres of
98 The Revolution and the Constitution
land in Ohio if it should be organized as a free territory, and his judicious presentation of this fact to Congress had a powerful influence upon the result. 3. Article III., and the conclusion of Article IV., guaranteeing the freedom of navigation of the Mississippi and St. Law- rence, were new, and seem to have been due to Timothy Pickering, of Massachusetts.
The Ordinance proper began by securing to the inhabi- tants of the Territory the equal division of real and per- sonal property of intestates to the next of kin in equal degree ; and the power to devise and convey property of every kind. Congress was to appoint the governor, the secretary, the three judges, and the militia generals; and the governor was to make other appointments until the organization of a General Assembly. The governor and judges were to adopt such State laws as they saw fit, unless disapproved by Congress, until there should be five thousand "free male inhabitants of full age" in the dis- trict : a curious slip, considering the prohibition of any other than "free " inhabitants. On attaining this popu- lation the Territory was to have a General Assembly of its own, consisting of the governor, a House of Representa- tives of one to every five hundred free male inhabitants, and a Legislative Council of five to be selected by Con- gress from ten nominations by the Lower House, and to serve for five years. The Assembly was to choose a dele- gate to sit, but not to vote, in Congress; and was to pass laws for the government of the Territory, not repugnant to the principles of the following "articles of compact be- tween the original States and the people and States in the said Territory," which were to "forever remain unalter- able, unless by common consent." I. No peaceable and orderly person was ever to be molested on account of his mode of worship or religious sentiments. II. The peo- ple were always to enjoy the benefits of the writ of habeas corpus, trial by jury, proportionate representation in the
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Legislature, bail (except for capital offences, in cases of evident proof and strong presumption), moderate fines and punishments, and the preservation of liberty, prop- erty, and private contracts. III. Schools and the means of education were forever to be encouraged ; and good faith was to be observed toward the Indians. IV. The Territory, and the States formed therein, were forever to be a part of "this confederacy of the United States," subject to the Articles of Confederation, and to the au- thority of Congress under them. They were never to interfere with the disposal of the soil by the United States, or to tax the lands belonging to the United States; and the navigation of the Mississippi and St. Lawrence was to be free to every citizen of the United States, "without any tax, impost, or duty therefor."
V. Not less than three nor more than five States were to be formed in the Territory. The boundaries of three of these, the "western, middle, and eastern" States (subse- quently Illinois, Indiana, and Ohio, respectively), were roughly marked out, very nearly as they stand at present ; and Congress was empowered to form two States (Michi- gan and Wisconsin) north of an east and west line through the southern end of Lake Michigan. Whenever any one of these divisions should contain sixty thousand inhabitants it was to be at liberty to form a State government, repub- lican in form and in conformity with these Articles; and was then to be admitted to the Union "on an equal foot- ing with the original States, in all respects whatsoever."
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 escap- ing 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." This
9so^ogA
ioo The Revolution and the Constitution
proviso was the first instance of a fugitive slave law ; it was afterward added to the Constitution.
The general scheme of the Ordinance, with the excep- tion of the prohibition of slavery, was the model upon which the Territories of the United States were thereafter organized.
Upon the inauguration of the new government under the Constitution an act was passed, August 7, 1789, recognizing and confirming the Ordinance, but modifying it slightly so as to conform it to the new powers of the President and Senate. When the territory south of the Ohio came to be organized, the organization was con- trolled by the stipulation of the ceding States that slavery should not be prohibited ; and in the case of other Territories the language often differed widely from that of the Ordinance of 1787 ; but in all cases the under- lying principles have been identical, so that the Ordinance might be called the magna charta of the Territories. The difference in statesmanship between the British and the American methods of dealing with problems closely similar is elsewhere noted.1
In the organization of the five States which have been formed under the Ordinance, the privileges secured by it to the inhabitants of the Territory have been imbedded in the State constitutions, usually in the preliminary bill of rights. In Indiana, in 1802, a convention, presided over by Wm. H. Harrison, sent a memorial to Congress, asking a temporary suspension of the sixth article; but a select committee, John Randolph being chairman, re- ported that such action would be highly dangerous and inexpedient. In 1805-7 successive resolutions of Gov- ernor Harrison and the Territorial Legislature to the same end were followed in each year by favorable reports from the committees to which they were referred; but Congress took no action. In the summer of 1807 the
1 See Revolution, p. 12, and p. 91.
Territories and the Ordinance of 1787 101
effort was again renewed ; but the new committee re- ported, November 13, 1807, that a suspension of the article was not expedient.
By this time opposition to the suspension was growing stronger in the Territory itself, so that the attempt was not renewed. But the Legislature, the same year, passed laws allowing owners of slaves to bring them into the Territory, register them, and hold them to service, those under fifteen years to be held until thirty-five for males and thirty-two for females, and those over fifteen for a term of years to be contracted for by the owner and the negro. In the latter case, if the negro refused to con- tract, he was to be removed whence he came; and in both cases the children of registered servants were to be held to service until the ages of thirty for males and twenty-eight for females.
Illinois, being then a part of Indiana Territory, lived under these laws until her admission as a State, in 1818, when she enacted in her Constitution that "existing con- tracts " should be valid. In this way slavery remained practically in force all over Illinois, and the pro-slavery party controlled the State. In 1822 an anti-slavery man was elected Governor, by divisions in the pro-slavery ranks, and in his inaugural he reminded the pro-slavery Legislature of the illegal existence of slavery in Illinois. That body retorted by an act to call a convention to frame a new constitution. The act had to be approved by popular vote, and, after a contest lasting through 1823-4, was defeated by a vote of 6822 to 4950. In both States provisions forbidding future contracts for service, made out of the State, or for more than one year, grad- ually removed this disguised slavery.
The preambles to the Constitutions of Ohio, Indiana, and Illinois all recite that the prospective State "has the right of admission to the Union " in accordance with the Constitution, the Ordinance of 1787, and the enabling
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act. In the case of Michigan, Congress long neglected to pass an enabling act; the people of the Territory, therefore, resting on the fifth article of the Ordinance, and claiming that the only condition precedent to admis- sion (the increase of the population to sixty thousand) had been fulfilled, formed a Constitution, and were ad- mitted without an enabling act.
It should also be noticed that the extreme northwestern part of the Territory, south and west of the head of Lake Superior, was not finally included in any of the five States named, but is now a part of Minnesota.
The second of the Articles of Confederation declares that each State retains "every power, jurisdiction, and right which is not by this Confederation expressly dele- gated to the United States in Congress assembled." The power to acquire, the jurisdiction to govern, and the right to retain territory outside of the limits of the States are nowhere in the Articles, even by implication, given to the United States. Whence, then, did Congress draw the power to vest in itself the title to the Northwest Terri- tory, to frame this Ordinance for its government, to abolish slavery therein, and to provide for the admission to the Confederacy of five new States?
The Federalist answers the question thus briefly: "All this has been done, and done without the least color of constitutional authority; yet no blame has been whis- pered, no alarm has been sounded." In other words, we are to suppose that the States, tempted partly by a will- ingness to despoil Virginia of her vast western claims, and partly by a desire to share in the proceeds of the Western territory as a common stock, were willing to allow their imbecile Congress to appropriate a source of revenue to which it had no shadow of claim, and which, as it then seemed, would so increase in a few years as to make Congress independent of the States.
Such a supposition does far less than justice to the
Territories and the Ordinance of 1787 103
acuteness of the State politicians who were then the con- trolling class ; they would have been glad to withhold the power to govern the Territories from Congress, and yet how were they to avoid granting it? The reason for their "whispering no blame, sounding no alarm," lay in the patent necessity of the case, in the political law which finally forces a recognition under any form of gov- ernment that it is only in non-essentials that a limitation on sovereignty can be deduced by implication, and that there are certain essential attributes of sovereignty which can only be restricted in express terms.
The right to acquire property is as much the natural right of a government, however limited, as of an indi- vidual ; and a government, if restricted so far as to be denied this right, is either non-existent or impotent. It is not true that circumstances, in this case, compelled the States to allow a violation of the Articles of Confedera- tion ; it is rather true that circumstances, in this case, compelled the State politicians to respect the natural rights of the National Government, which, in so many other cases, they had attempted to limit by the general phrases of the second article.
We are therefore to take the sovereign right to acquire territory as the justification of the Ordinance of 1787, just as in the case of the annexation of Louisiana, which was equally unauthorized by the Constitution.
Undoubtedly the greatest benefit of the Ordinance to the Territory which it covered was its exclusion of slavery from it. It thus received the full sweep of that stream of immigration, foreign and domestic, which so carefully avoided slave soil ; the strictness with which this west- ward stream confined itself to the comparatively narrow channel bounded by the lakes and the Ohio is of itself a testimony to the wisdom of the sixth article.
Beyond this, however, there were countless other benefits. The enumeration of the natural rights of the
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individual was a political education for the people of the new Territory, as well as a chart for the organization of the new State governments. The stipulations for the encouragement of education, though too indefinite to be binding, have exerted an enormous influence upon the demands of the people and upon the policy of the legis- latures. This whole section was thus, from the begin- ning, the theatre of a conscious and persistent attempt to combine universal suffrage and universal education, each for the sake of the other; and the success of the attempt though still far from complete, has already gone far be- yond any possible conception of its projectors.
Most important of all, from a political point of view, the Ordinance was the first conscious movement of the American mind toward the universal application of the fed- eral principle of State government to the continent. The original States owed their formal individuality to accident or the will of the king; the inchoate States of Vermont, Kentucky, and Tennessee were the accidents of accidents ; here, in the Northwest Territory, the nation first conscious- ly chose the State system for its future development.
Major-General Arthur St. Clair, a delegate from Penn- sylvania, and President of Congress during the adoption of the Ordinance, was the first Governor of the Territory, 1 788-1 802. His biography, cited below, is the best ex- position of the practical workings of the Ordinance. When the portion of the Northwest Territory outside of Ohio was organized as Indiana Territory, William H. Harrison became its Governor, 1 800-11, and was suc- ceeded by John Gibson, 1811-13, and Thomas Posey, 181 3-16, until Indiana became a State. When the sepa- rate Territory of Illinois was organized, Ninian Edwards became its Governor, 1809-18. Michigan, as a Territory, had as governors William Hull, 1805-13, Lewis Cass, 181 3-31, Geo. B. Porter, 183 1-4, and Stevens T. Mason, 1834-5. When Wisconsin was separated from Michigan
Territories and the Ordinance of 1787 105
as a Territory, its governors were Henry Dodge, 1836-41 and 1845-8, James D. Doty, 1841-4, and N. P. Tall- madge, 1844-5. The small remainder of the Territory, after the admission of Wisconsin as a State, was added to Minnesota.
On the Ordinance of 1787:
The text of the Ordinance is in 1 Poore's Federal and State Constitutions, 7 ; 1 Stat, at Large (Bioren and Duane's edition), 475 ; Duer's Constitutional Jurispru- dence, 512; Andrews's Manual of the Constitution, App. xiii. ; see also North American Review, April, 1876; Hil- dreth's Pioneer History, 193 (Ohio Company); Taylor's History of Ohio, 493; 1 Bancroft's Formation of the Con- stitution, 177, and 2:98; H. B. Adams's Maryland's In- fluence in Founding a National Commonwealth ; Coles's History of the Ordinance of ij 87 (read before the Penn. Hist. Soc, June 9, 1856); 4 Journals of Congress, 373, 379; 3 Hildreth's United States, 449; 1 von Hoist's United States, 286; 1 McMaster's History of the American People, 505; 1 Schouler's United States, 98; 2 Pitkin's United States, 210; 1 Curtis's History of the Constitution, 291 ; 1 Draper's Civil War, 180 ; 1 Wilson's Rise and Fall of the Slave Power, 31 ; 1 Greeley's American Conflict, 38 ; 2 Holmes's Annals, 354; 1 Stat, at Large, 50 (act of August 7, 1789); Smith's Life of St. Clair ; Burnet's Settlement of the Northwest Territory ; Washburne's Sketch of Edward Coles; Story's Commentaries, §1310; The Federalist, xxviii. (by Madison) ; and authorities under articles referred to. For Jefferson's claims to the author- ship of the Ordinance, see 1 Benton's Thirty Years' View, 133; 1 Randall's Life of Jefferson, 397; for Dane's, see 3 Webster's Works, 397; for Dane's, King's, and Pickering's, see 2 Spencer's United States, 202; Pickering's Life of Pickering ; Moore, Charles, The Northwest under Three Flags; Fiske's Critical Period; Hinsdale's Old Northwest.
CHAPTER VII
THE ORGANIZATION OF THE NEW GOVERNMENT; HAMIL- TON'S FINANCIAL MEASURES
THE new Government of the United States under the Constitution was to have gone into effect on March 4, 1789. The dilatory practices of the old Confederation were, however, still in vogue, and a quorum of the House was not present till the 30th of March nor of the Senate till April 6th. The electoral votes for President were then counted and it was found that Washington had re- ceived a unanimous vote. He was inaugurated in New York City on April 30, 1789, the oath of office being ad- ministered by Chancellor Livingston, of New York.
Only eleven of the thirteen States had adopted the Constitution in time to take part in the election of Washington. North Carolina and Rhode Island had re- jected the Constitution. North Carolina came into the Union in November, 1789, and Rhode Island in May, 1790. New York did not participate in the first election on account of the failure of her Legislature to pass a law regulating the mode of choosing electors. Of the sixty- nine electors, all of whom voted for Washington, only thirty-four voted for Adams, who, being second on the list, became Vice-President. A majority vote was re- quired for President, but not for Vice-President.
Washington made Thomas Jefferson, of Virginia, Sec- retary of State, Alexander Hamilton, of New York, Secretary of the Treasury, Henry Knox, of Massachu-
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Organization of the New Government 107
setts, Secretary of War, and Edmund Randolph, of Vir- ginia, Attorney-General. These appointments were made September 29, 1789, after Congress during its first ses- sion had created the office of Attorney-General and the three departments of State, Treasury, and War.
Congress in its first session, during the summer of 1789, enacted some noteworthy legislation. In addition to organizing the executive departments, it organized the national judiciary in the notable Judiciary Act of 1789, written by Ellsworth, which gave a form and constitution to the Supreme Court which have been substantially re- tained ever since; it passed the first tariff act under the Constitution, chiefly for revenue, but also for "the pro- tection and encouragement of manufactures"; it ap- proved sixteen amendments to the Constitution, ten of which were adopted by the States ; approved the terri- torial government for the Northwest ; provided for salaries and appropriations; and it gave its official legislative opinion that the power of removal lay with the President alone, without the concurrence of the Senate.
No such official body as the President's Cabinet is recognized by the Constitution. That document pro- vides that the President may "require the opinion in writing of the principal officer in each of the executive departments on any subject relating to his office." It was not Washington's custom to call his Cabinet into council; he called for their individual written opinions. Had the decision of the first Congress leaving with the President the sole power of removal been otherwise, the heads of departments might have been able, by cultivat- ing personal and political relations with the Senate, to intrench themselves against the President's power, or to make themselves co-ordinate with the President as in an Executive Directory. Washington looked upon the Presidency as a non-partisan office, and he, therefore, did not suppose that the Cabinet needed to be harmonious
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and homogeneous from a party point of view. Jefferson and Hamilton were the antipodes of one another in poli- tics, and the presence of these two men in the same Cabinet indicates Washington's purpose to govern with- out regard to parties. Washington supposed the Presi- dency would not be a party office.
The Secretaryship of State is now regarded as the first office in the Cabinet. But in 1789 the Treasury Depart- ment had more business to take care of and was the more difficult to organize. No better man than Hamilton for the head of the department could have been chosen. The act creating the Treasury (September 2, 1789) pro- vided that "it shall be the duty of the Secretary of the Treasury to digest and prepare plans for the improvement