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1.

HISTORY
OF THE


ORIGIN, FORMATION, AND ADOPTION
OF THE
CONSTITUTION OF THE UNITED STATES;
\VITH
N OTIOES OF ITS PRINCIPAL FRAMERS.
‘BY
GEORGE TICKNOB, CURTIS. "11: m, 7
IN TWO VOLUMES.
VQLUME L
NEW-~ YORK:
HARPER AND BROTHERS,
Fmmxnm SQUARE.
1 8 6 5.
Entered according to Act of Congress, in the year 1854, by
GEORGE T.CURTI&
in the Clerk’s Ofiice of the District Court of the District of Massachusetts.
'z'o
GEORGE TICKNOR, ESQ.,
THE HISTORIAN 0F SPANISH LITERATURE,
BY WHOSE ACCURATE SCHOLARSHIP AND CAREFUL CRITICISM
THESE PAGES HAVE LARGELY PROFITED,
I DEDICATE THIS WORK,
IN AFFECTIONATE ACKNOWLEDGMENT OF TIES,
WHICH HAVE BEEN TO ME CONSTANT SOURCES OF HAPPINESS
THROUGH MY WHOLE LIFE.
PREFACE.
A SPECIAL history of the origin and establish-
ment of the Constitution of the United States has
not yet found a place in our national literature.
Many years ago, I formed the design of writing
such a work, for the purpose of exhibiting the
deep causes which at once rendered the Oenven-
tion of 1787 inevitable, and controlled or directed
its course and decisions; the mode in which its
great work was accomplished; and the founda-
tions on which our national liberty and prosperity
were then deliberately settled by the statesmen to
whom the American Revolution gave birth, and
on which they, have rested ever since.
In the prosecution of this purpose I had, until
death terminated his earthly interests, the encour-
agement and countenance of that illustrious person,
‘ whose relation to the Constitution of the United
States, during the last forty years, has been not
I
Vl PREFACE.
I inferior in importance to that of any of its found
ers during the preceding period.
Mr. Webster had for a long time the intention
of Writing a work which should display the re-
markable state of affairs under whose influence the
Constitution was first brought into practical appli-
cation; and this design he relinquished only when
all the remaining plans of his life were surren-
dered‘ with the solemn and religious resignation
that marked its close. It was known to him that
I had begun to labor upon another branch of the
same subject. In the spring of 1852 I Wrote to
him to explain the plan of my work, and to. ask
him for a copy of some remarks made by his fa-
ther in the Convention of New Hampshire when
the Constitution was ratified by that State. I re-
ceived from him the following answer.
“WASHINGTON, March 7th, [1852].
“ MY DEAR SIR,—
“ I will try to‘ find for 'you my father’s speech,
as it was collected from tradition and published
some years ago. If I live to see warm Weather in
Marshfield, I shall be glad to see you beneath its
shades, and to talk of your book. .
“ You are probably aware that I have me'ditated
the Writing of something upon the History of the
Constitution and the Administration of Washing-
PREFACE. vii
ton. I have the plan of such a work pretty defi-
nitely arranged, but whether I shall ever be able
to execute it I cannot say: ——‘ the wills above be
done.’
“ Yours most truly,
“DANL. WEBSTER.”
‘Regarding this kind and gracious intimation as
a wish not to be anticipated in any part of the
field which he had marked out for himself, I re- p
plied, that if, when I should have the pleasure of
seeing him, my work should seem to involve any
material part of the subject which he had compre-
hended within his own plan, I should of course
relinquish it at once. When, however, the period
of that summer’s leisure arrived, and brought with
it, to his watchful observation, so many tokens that
“ the night cometh,” he seemed anxious to impress
upon me the importance of the task I had under-.
taken, and to remove any obstacle to its fulfilment
that he might have suggested. Being with him
alone, on an occasion when his physician, after a
long consultation, had just left him, he said to me,
with an earnestness and solemnity that can never
be described or forgotten: “ You have a future; 1
have none. You are writing a History of the Con-
stitution. You will write that work; I shall not.
PREFACE.
Go on, by all means, and you shall have every aid
that I can give you.”
The event of which these words were ominous
was then only four weeks distant. Many times,
during those short remaining Weeks, I sought “ the
shades of Marshfield ”; but now it was for the
offices and duties, not for the advantages, of friend-
ship; - and no part of my work was ever submit-
ted to him to whose approbation. sympathy, and
aid I had so long looked forward, as to its most
important stimulus and its most appropriate re-
ward.
But the solemn injunction which I had received
became to me an ever-present admonition, and gave
me—if I may make such a profession—the need-
ful fidelity to my great subject. Whatever may be
thought of the manner in which it has been treated,
a consciousness that the impartial spirit of History
has guided me will remain, after every ordeal of
criticism shall have been passed.
And here, while memories of the earlier as well
as of the later lost crowd upon me with my theme,
I cannot but think of him, jurist and magistrate,
friend of my younger as well as riper years, who
was called from all human sympathies before I
had conceived the undertaking which I have now
PREFACE. ix
Fortunate shall I be, if to those in
whom his blood flows united with mine I can
completed.
transmit a work that may be permitted to stand
near that noble Commentary, which is known and
honored wherever the Constitution of the United
States bears sway.
The plan of this work is easily explained. The
first volume embraces the Constitutional History
of the United States from the commencement of
the Revolution to the assembling of the Conven-
tion of 1787, together with some notices of the
principal members of that body. The second vol-
ume is devoted to the description of the process of
forming the Constitution, in which I have mainly
followed, of course, the ample Record of the De-
bates preserved by Mr. Madison, and the oflicial
Journal of the proceedings.1
1 In citing the “ Madison Pa-
pers,” I have constantly referred
to the edition contained in the
fifth (supplementary) volume of
Mr. Jonathan Elliot’s “ Debates,”
&c., because it is more accessible
to general readers. The accuracy
of that publication, and its full
and admirable Index, make it a
very important volume to be con-
sulted in connection with the sub-
von. 1. b
ject of this work. In this rela—
tion, I may suggest the desira-
bleness of a new and carefully re-
‘ vised edition of the Journals of the
old Congress ;— an enterprise that
should be the care of the national
government. A great magazine or
materials for our national history,
from the first Continental Congress
to the adoption of the Constitution
exists in those Journals.
X PREFACE.
The period of our history from the commence
ment of the Revolution to the beginning of Wash=
ington’s administration is the period when our
State and national institutions were formed. With
the events of the Revolution, its causes, its prog
ress, its military history, and its results, the people
of this country have long been familiar. But the
constitutional history of the United States has not
been Written, and few persons have made them-
selves accurately acquainted with its details. How
the Constitution of the United States came to be
formed; from what circumstances it arose; what
its relations Were to institutions previously existing
in the country; what necessities it satisfied; and
what was its adaptation to the situation of these
States, — are all points of the gravest importance
to the American people, and all of them require to
be distinctly stated for their permanent welfare.
For the history of this Constitution is not like
the history of a monarchy, in which some things
are obsolete, while some are of present importance.
The Constitution of the United States is a living
code, for the perpetuation of a system of free gov-
ernment, which the people of each succeeding gen-
eration must administer for themselves. Every line
of it is as operative and as binding to-day as it
PREFACE. Xi
was when the government was first set in motion
by its provisions, and no part of it can fall into
neglect or decay while that government continues
to exist.
The Constitution of the United States was the
means by which republican liberty was saved from
the consequences of impending anarchy; it secured
that liberty to posterity, and it left it to‘ depend on
their fidelity to the Union. It is morally certain
that the formation of some general government,
stronger and more efficient than any which had
existed since the independence of the States had
been declared, had become necessary to the con-
tinued existence of the Confederacy. It is equally
certain, that, without the preservation of the Union,
a condition of things must at once have ensued,
out of which wars between the various provinces
of America must have grown. The alternatives,
therefore, that presented themselves to the gener-
ation by whom the Constitution was established,
were either to devise a system of republican gov-
ernment that would answer the great purposes of
a lasting union, or to resort to something in the
nature of monarchy. With the latter, the institu-
tions of the States must have been sooner or later
crushed; - for they must either have crumbled
xii PREFACE.
away in the new combinations and fearful convul
sions that would have preceded the establishment
of such a power, or else they must have fallen
speedily after its triumph had been settled. With
the former alternative, the preservation of the States,
and of all the needful institutions which marked
their separate existence, though a diflicult, was yet
a possible result.
To this preservation of the separate States we
owe that power of minute local administration,
which is so prominent and important a feature. of
our American liberty. To this we are indebted
for those principles of self-government which place
their own interests in the hands of the people of
every distinct community, and which enable them,
by means of their own laws‘, to defend “their own
palticular institutiQfiS; againstfenaclroachrbnents from
without.
Finally, the Constitution of the United States
made the people of these several provinces one na-
tion, and gave them a standing among the nations
of the world. Let any man compare the condition
of this country at the peace of 1783, and during
the four years which followed that event, with its
present position, and he will see that he must look
to some other cause than its merely natural and
PREFACE.
material resources to account for the proud eleva-
tion which it has now reached.
He will see a people ascending, in the compara-
tively short period of seventy years, from an atti-
tude in which scarcely any nation thought it worth
while to treat with them, to a place among the four
principal powers of the globe. He' will see a na-
tion, once of so little account and so little strength
that the corsairs of the Mediterranean could prey
unchecked upon its defenceless merchantmen, now
opening to their commerce, by its overawing diplo-
macy and influence, an ancient empire, on the ‘op-
posite side of the earth we inhabit, which - has‘ for
countless: ages~ been firmly closed against the whole
world. He will first see a collection of thirteen “fee-
ble republics on the eastern coast of North America,
inflicting upon each other the manifold uries of
rival and hostile legislation; and then again he - will
behold them grown to be a powerful confederacy
of more than States, stretching from the At-
lantic to the Pacific, with all their commercial inter-
ests blended‘ and harmonized by one superintending
legislature, and protected by ‘one central and pre-
ponderating power. He will see a people who had
at first achieved ‘nothing but independence, and had
contributed nothing to the cause of free government
xiv PREFACE.
but the example of their determination to enjoy it,
founding institutions to which mankind may look
for hope, for encouragement and light. He will see
the arts of peace ——_ commerce, agriculture, manufac-
tures, urisprudence, letters — now languishing be-
neath a civil polity inadequate and incompetent,
and now expanding through a continent with an
energy and force unexampled in the history of our
race, — subduing the farthest recesses of nature,
and filling the wilderness with the beneficent fruits
of civilization and Christianity. _
Surveying all this, -- looking back to the period
which is removed from him only by the span of
one mortal life, and looking around and before
him, he will see, that I among the causes of this
unequalled growth stands prominent and decisive,
far over all other human agencies, the great code
of civil government which the fathers of our re-
public wrought out from the very perils by which
they were surrounded.
It is for the purpose of tracing the history of
the period in which those perils were encountered
and overcome, that I have written this work. But
in doing it, I have sought to write as an American.
For it is, I trust, impossible to study the history of
the Constitution which has made us what we are.
PREFACE. XV
by making us one nation, without feeling how un-
worthy of the subject -- how unworthy of the dig-
nity of History — would be any attempt to claim
more than their just share of merit and renown for
names or places endeared to us by local feeling or
traditionary attachment. Historical writing that is
not just, that is not impartial, that is not fear-
less, -— looking beyond the interests of neighbor-
hood, the claims of party, or the solicitations of
pride, — is worse than useless to mankind.
BOSTON, July, 1854.
CONTETNS
OF
VOLUME FIRST.

BOOK I.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES
FROM THE COMMENCEMENT OF THE REVOLUTION TO
THE ADOPTION OF THE ARTICLES OF CONFEDERA-
TION.
CHAPTER I.
1774-1775.
ORGANIZATION OF THE FIRST CONTINENTAL CONGRESS. - ORIGIN OF THE
UNIoN. — SITUATION on THE CoLoNIEs BEFORE THE REvoLU'rIoN.
Political Organizations of the Colonies Pug;
Provincial Governments . . . . . . . . 4
Proprietary Governments . . . . . . . . 5
Charter Governments . .. 5
Causes of the Revolution 6
Local Legislatures . . . . . . '1
Power of the Colonies to unite, asserted by the Revolution . 8
Reasons why they were enabled to effect the Union . . 8
~~ A General Congress . . . . . . . . 10
First Step towards it . . . . . . . . . ll
Assembling of the Congress . . . . . . . 13
Delegates . . . . . . . . . . . 14
Method of Voting . . . . . . . . 15
Rights of the Colonies . . . . . .
Separation from Great Britain not contemplated . . . 18
Relations of the Congress to the Country . . . . . 19
Authority of Parliament . . . . . . . . 20
Declaration of Rights . . . . . . . . 22
Cessation of Exports and Imports . . . . . 23
VOL. I 6
xviii CONTENTS.
Another Congress proposed . . . . . . . . 25
Royal Government terminated in Massachusetts . . . . 25
Provincial Congress of Massachusetts . . . . . . 26
Battle of Lexington . . . . . . . . . 27
C H A PTE R II.
1775-.1776.
THE SECOND CONTINENTAL CONGRESS.-—FORMATION AND CHARACTER
OF THE REVOLUTIONARY GOVERNMENT. ——APPOINTMENT OF A COM-
MANDER—IN-CHIEF. ——FIRST ARMY OF THE REVOLUTION.
New Continental Congress . . . . . . . 28
Delegates . . . . . . . . . . . 29
Colonies represented . . . . . . . . 29
Duration of this Congress . . . . . . . . 3
War commenced - . . . . . . . . . 31
Massachusetts and New York apply to the Congress for Direction
and Assistance . . . . . . . . . 31
The Congress proceeds to put the Country into a State of Defence . 32
American Continental Army created . . . . . . 32
Washington chosen Commander-in-Chicf . . . . . 33
Measures to defray the Expenses of War . . . . . 34
Treasury Department established . . . . . . 35
General Post-ofiice organized . . . ' . . . 35
Militia . . . . . . . . . . . 35
Relations with Indian Tribes . . . . . . , . 35
Royalists _ . . . . . . . 36
The Congress advise Provisional Governments . . . . 37
Separation from England determined upon . . . . . 38
Suppression of the Royal Authority . . . . ' . 39
National Union formed before the State Governments . . . 39
The Revolutionary Government . . . . . . 40
Note on Washington’s Appointment as Commander-in-Chief . . 41
CHAPTER III.
1776-1777.
CONTINUANCE OF THE REVOLUTIONARY GOVEENMENT.--DEOLAEATION
or INDEPENDENCE.——PREPARATIONS FOR A NEW GOVERNMENT.—
FORMATION OF THE CONTINENTAL ARMY.
Independence proposed . . . . . . 49
Committee to prepare the Declaration . . . . . 50
CONTENTS. m
Instructions to the Delegates . . . . . . . 51
Declaration adopted . . . . . . . . . 5!
Consequences of its Adoption . . . . . . . 51
The Title “ United States of America” first used . . . 52
Articles of Confederation proposed . . . . . \53
The Revolutionary Congress, the Real Government . . . 54
\ Power of the Congress . . . . . . - . 55
General Washington’s Position . . . . . . . 55
Difliculties which he had to encounter . . . . . . 56
\ Machinery of Government defective . . . . . . 57
Formation of the Army ' . . . . . . . . 58
Remodelling of the Army . . . . . . . ' 59
Difliculties attending it . . . . . . . . 59
Committee appointed to confer with General Washington . . 60
Error of Short Enlistments . . . . . 60
Washington does not concur in their Expediency . . . 60
\ Powers of the National Government . . . . . . '62
Difiiculties attending their Exercise . . . . . . 63
Popular Feeling about the Grievances . ' . . . . 64
Tories . . . . . . . . . . . 65
Ofiicers of the Royal Government in New Hampshire seized . . 66
General Lee’s Offer to seize the Tories of New York . . . 66
He prepares to defend New York . . . . . . . 67
Orders to disarm the Tories in Queen’s County . . . . 68
Orders countermanded . . . . . . . . . 68
Washington’s Regret . . . . . . . . 69
His Directions to Lee . . . . . . . . . 70
Tories of Queen’s County arrested . . . . . . '71
Inhabitants of New York alarmed . . . . . . '71
Congress compelled to submit the Subject to the Colonial Authorities 72
Questions of Prize . . . . . . . . . 73
Origin of the American Navy . . . . . . . ‘73
Vessels fitted out to intercept the Enemy’s Supplies . . . 73
Falmouth burned . . . . . . . . . 74
Letters of Marque and Reprisal . . . . . . . 75
Prizes captured . 1 . . . . . . . . '75
Adjudication of Prizes . . . . . . . . . 76
Delay in obtaining Decisions . . . . . . 77
Means of defraying the Public Expenses . . . . 77
Paper Money issued . . . . . . . . . 78
Delay in Signing the Bills . l . . . . . . . 79
Pressing Wants of the Army . . 79
XX CONTENTS.
Washington borrows Money of the Province of Massachusetts Bay ' 80
* Defects of the Revolutionary Government . . . . 80
Jealousy of Standing Armies . . . . . 80
Note on the Authorship of the Declaration of Independence . . 81
I
C H A P T E R I V .
JULY, 17'76—N0VEMBER, 1777.
CONSEQUENCES or THE DECLARATION OF IsnEPENnENca—Rironmm-
ZATION OF THE CONTINENTAL ARMY. —-—FLIGHT or THE CoNeREss
FROM PHILADELPHIA.-—-PLAN or THE CONFEDERATION PROPOSED.
Effect of the Declaration of Independence . . . . . 89
More vigorous and decisive Measures adopted by the Congress . 90
Mischievous Adhesion to State Interests . . . . . 90
History of the Army . . . . . . . . . 91
General Washington abandons the City of New York . . 91
Writes to the President of Congress . . . . . . 91
He retreats to the Heights of Haerlem, and again appeals to Congress 92
The Congress organizes a new Army . . . . . . 92
Number of Battalions raised by each State . . . . 93
Inducements to enlist . . . . . . . . . 93
Serious Defects in the Plan . .' . . . . . 93
Washington suggests a Remedy . . . . . . . 94
Promotion of the Oflicers provided for . . . . . 95 -
Another Defect in the Plan . . . . . . . . 95
Massachusetts and Connecticut offer further Pay to their Men . 95
Washington remonstrates . . . . . . . . 96
Congress augments the Pay of the Army . . . . . 96
Ill Effects of the System . . . . . 96
Number of the American Forces near New York . . . 96
Washington’s Discouragement . . . . . . . 97
His Situation and Trials . . . . . . . . 97
His Retreat through New Jersey . . . . . . . 98
Loss of Philadelphia threatened . . . . 99
Washington asks for Extraordinary Powers from the Congress . 100
Powers intrusted to him . . . . . . . . 100
Unsettled Condition of the Political System . . . - 101
The Congress apologizes to the Governors of the States . . 102
Inaccuracy of their Position . . . - 103
The States acquiesce in the Powers granted to Washington . 104
V Articles of Confederation pending in Congress . . . 104
CONTENTS. 0" XXI
Eminent Men retire from Congress . . . . . . 104
Delegations of the States renewed . . . . . . 105
Striking Instance of State Jealousy . . . . . . 106
Washington requires an Oath of Allegiance to the United States . 107
The Requisition denounced as improper . . . . . 107
Its Propriety . . . . . . . . . . 108
Formation of a new Army . . . - . . . 110
Embarrassments in the Formation of the Army . . . . 110
Persistence of the States in giving Extra Bounties . . . 110
Bounty offered by Massachusetts . . . . . . . 111
Army greatly reduced .' . . . . . . . 111
Washington hindered in his Efforts to plan and carry out a Cam-
paign . . . . . . . . 112
Applications for Troops to defend particular Neighborhoods . . 112
Battle of the Brandywine . . . . . a
The Congress leaves Philadelphia . . - . . . 113
Sir William Howe takes Possession of it . . . . 113
The Congress removes to Yorktown . . . . . . I 113
They resolve to consider the Articles of Confederation . . 114
The Plan of a Confederacy submitted to the several Legislatures . 114
Necessity for a National Government . . . . . 114
End of the Revolutionary Government approaching . . . 115
Want of a Civil Executive . . . . . . . 115
States engaged in forming Governments . .' . . . 116
Colonies accustomed to the Business of Government . . . 116
Practice of Representation familiar . . . . . . 117
Previous Political Training of the People . . . . . 118
Distinctions between the Departments of Government . . . 119
Ideas not yet applied to a General Government . . . 120
(Union of the People of the United States, as distinguished from a
Union of the States, learned by a bitter Experience . . . 122
First Stage in the Constitutional History of the Country . . 123
C H A P T E R V .
NOVEMBER, 1777 - MARCH, 1781.
AnoP'rIoN or THE ARTICLES or CONFEDERATION. —-CEssIoNs or Was'r-
ERN TERRITORY.-—FIRST POLITICAL UNIoN or THE STATES.
Adoption of the Articles of Confederation . . . . I24
Causes which delayed the Adoption of the Confederation . . 125
Changes of the Members of Congress . . . . . 126
xxii CONTENTS.
‘The present Congress compared with that of 1776 . . . 127
Objections made to the Articles of Confederation . . . 128
Propositions for Amendments rejected . . . . . . 129
Objection made by the State of New Jersey . . . . 129
Their Suggestion rejected . . . . . . . . 130
Claims of the Larger States to Vacant Lands . . . . 131
Objection of the Smaller States . . . . . . . 131
Assent of Maryland to the Confederation withheld . . . 133
New York authorizes its Delegates in Congress to limit the West-
ern Boundaries of the State . . . . . . 134
Congress urges other States to surrender a Portion of their Claims 134
Generous Example of New Jersey . . . . . . 135
Delaware follows it . . . . . . 135
Maryland adopts the Articles of Confederation . . . . 136
Virginia yields her Claim to some of her Territory . . . 137
Progress of the People of the United States towards a National
Character . . . . . . . . . . 139
Security against a Dissolution of the Confederacy . . . 140
C H A P T E R V I .
NATURE AND POWERS OF THE CONEEDEEATION.
Nature of the Government established by the Confederation . . 142
Provisions in the Confederation for the States as separate Commu-
nities . . . . . . . . 143
Form of Government established by it . . . 143
The Confederation a League for Mutual Defence and Protection . 144
Powers of Congress with regard to the External Relations of the
Country . . . . . . . . . 144
Powers of Congress with regard to Internal Affairs . . . 145
Committee of the States to sit in the Recess of Congress . . 146
Restrictions imposed upon Congress . . . . . 146
Revenues of the Country . . . . . . . . 147
N 0 Provision for enforcing Measures adopted by Congress . 148
The United States enter upon a New Era of Civil Polity . . 149
The Confederation demonstrates the Necessity for a more perfect
Union . . . . . . . . , . . 149
CONTENTS.
BOOK II.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES,
FROM THE ADOPTION OF THE ARTICLES OF CONFED-
ERATION, IN 1781, TO THE PEACE OF 1783.
CHAPTER I.
1781-1783.
‘
REQUISITIONS.—-CLAIMS OF THE ARMY.—NEWBURGH AnnREssEs.—-
PEACE PRocLAmEn—THE ARMY DISBANDED.
Congress assembles under the Confederation
Treaty of Peace Signed
Treaty of Alliance with France . . . . .
Delay of the States in complying with the Requisitions of Congress
Washington addresses Letters to the States on the Subject of Fi-
nance, and completing their Quotas of Troops .
Force of the Army . *‘ . . . . .
Discontents in the Army . .
The Newburgh Addresses . . . . . . .
Congress votes an Establishment of Half-Pay for the Oflicers .
Impracticable Adherence to the Principles of Civil Liberty
Provision for the Ofiicers found to be inadequate . . . .
Congress recommends to the States to make Provision for the Ofli-
cers and Soldiers . I. . . . . . .
Pennsylvania places her Ofiicers upon Half-Pay for Life
Congress pass a Resolve giving Half-Pay for Life to the Officers .
Disappointment of the Officers . . . . .
The Congress of the Confederation refuse to redeem the Pledge of
the Revolutionary Congress . . . . .
Oflicers offer to commute the Half-Pay for Life .
Breach of Public Faith . . . . .
Situation of Washington . . . . . . .
0
155
155
156
156
157
rss
158
159
160
161
162
162
163
163
164
164
165
166
167
168
Anonymous Address circulated among the Oflicers at N ewburgh
Washington forbids an Assemblage at the Call of an Anonymous
Paper . . . , . . . . . .
He appoints a Day to hear the Report of their Committee .
The Oflicers again refer their Claims to the Consideration of Congress
Half-Pay commuted to Five Years’ Full Pay . . . a
The Army disbanded . . . . . . . .
Value of the Votes which fixed the Compensation of the Officers
168
168
169
170
170
171
xxiv CONTENTS.
C HAPTER II.
1781-1783.
FINANCIAL DIFFICULTIES or THE CONFEDERATION.v-REVOLUTIONARI
DEBT.—REVENUE SYSTEM OF 1783.
Public Debt of the United States . . . . . . 172
Congress recommend a Duty upon Importations . . . . 173
Oflice of Superintendent of Finance established . . . . 174
Rhode Island refuses to grant to Congress the Power of Levying
Duties . . . . . . . . . . 174
'Virginia repéals the Act by which she had granted this Power to
Congress . . . . . .
No Means of paying the Public Debts . . . . . 175
Another Plan for collecting Revenues recommended to the States 176
175
Strong Appeal to the People in Favor of it . . . . . 177
Claims of the various Classes of the Public Creditors . . 178
Character of the United States involved . . . . . 179
The Confederation a Government for Purposes of War . . ' 181 1,
Its Great Defects . . . . . . . . . 181
The Moral Feelings an Unsafe Reliance for the Operations of Gov-
ernment . . . . . . . . . . 183
Proofs of this in the History of the Confederation . . . 184
Design of the Framers of the Revenue System . . . . 185
Claims of the Army . . . . . . . . 186
Wisdom of proposing a Scheme of Finance during the Continu-
ance of the War . . . . . . . . 186
Influence of the Revenue System of 1783 . . . . . 188
The System of 1783 different from the Present Constitution . 188
Note on the Half-Pay for the Ofiicers of the Revolution . . 190
Note on the Newburgh Addresses . . . . . . 194
,4»
CHAPTER III.
1781-1783.
OPINIONS AND EFFORTS OF WASHINGTON, AND OF HAMILTON --DE-
CLINE or THE CONFEDERATION.
Washington's Relations to the People of this Country . . 200
His Address to them on resigning his Oflice . . . . 201
His Views at the Close of the War . . . . . . 202
Hamilton’s Opinions . . . . . . . . . 203
His Advice and Suggestions . . . 204
The Necessity for a Complete Sovereignty in Congress . . 204
CONTENTS. XXV
Hamilton’s Entry into Congress . . . . . 206
Nature of a Federal Constitution not understood . . 206
Hamilton urges the Necessity of vesting the Appointment of Col-
lectors of Revenue in the General Government . . . 208
Ratio of Contribution by the States to the Treasury uncertain 210
Hamilton desires to change the Principle of the Confederation . 211
Advises General Taxes to be collected under Continental Authority 212
An Attempt to substitute Specific Taxes on Land and Houses 212
It is determined to adopt Population as the Basis of Contribution 213
Hamilton’s Views on a Peace Establishment 214
Committee to arrange the Details of such a System 215
An Army and Navy necessary . . 216
No Provision in the Articles of Confederation for their Maintenance
during Peace . . . . . . . 216
Hamilton advises Federal Provision for Defence 219
Congress driven from Philadelphia . . . . 220
Hamilton examines the Confederation . . . . . 221 .
Its Defects . . . . . . . - . . 222, 223 If
He proposesoto revise it . . . . . . . . 224
His Plan unsuccessful . . . . . . . . 224
Improvement in the Revenue System . . . . , . 225
Causes of the Decline of a National Spirit . . _ . 226 w ’
Falling off in the Attendance of Members of Congress . 226 <-
Results of the Confederation . . . . . . . 228
Its Defects displayed . . . . . . . 229 ‘I,
Another Government necessary for the great Duties of Peace 230

BOOK III.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES,
FROM THE PEACE OF 1783 TO THE FEDERAL CON-
VENTION OF 1787. I
CHAPTER I.
JANUARY, 1784 ~MA'Y, 1787.
DUTIES AND N ECESSITIES or CoNen'Ess. -- REQUISITIONS 0»: THE
S'mrss. --REvENuE SYSTEM or 1783.
State of the Union from 1783 to 1787 . . . . .
Dangers and Evils which existed during the Four Years after the
War . . . . . . . . . . . 234
vor... 1. d
233
xxvi cONTENTs.
A New Congress . . . . . . . . . 235
Washington’s Resignation . . . - . . . 235
Congress urge the Attendance of absent Members . . . . 236
Ratification of the Treaty of Peace . . . . . . 237
Congress perpetually in Session during the War . . . . 238
Number of Delegates from each State . . . . . 238
Low State of the Representation . . . . . . . 239
Duties of the Government . . . . . . . 240
Supplies for the Year 1784 . . . . . . . . 240
How to be obtained . . . . . . . . . 241
Old Requisitions unpaid . . . . . . . . 241
Supplies necessary for the Year 1785 . . . . . 242
Supplies necessary for the Year 1786 . . . . . . 242
Rhode Island and New Jersey propose to pay their Quotas in their
own Paper Currency . . , . . . 242
Inadequacy of Requisitions . . . . . . . 243 »—
States which had assented to the Revenue System in February, 1786 244 L/
Congress make known the Public Embarrassments . . . 245
Impost granted by all the States except New York . . . 246
Argument used in Support of her Refusal. . . . . 247 L
Hamilton’s Answer to it . . . . . . . . 247
Congress recommend to New York to reconsider the Revenue System 247
The Governor refuses to summon the Legislature . . . 247
Failure of the Revenue System . . . . . . . 248
CHAPTER II.
1784-1787.
INFRACTIONS OF THE TREATY or PEAOE.
Provisions of the Treaty of Peace . . . . . . 249
Departure of the British Troops from the Atlantic Coast . . 249
Western Posts retained . . . . . . . . I 249
Interests of British Subjects . . . . . . . 250
Confiscated Property . . . . . . . . . 250
Power of Confiscation belonging to the United States . . 252
Refugees . . . . . . . . . . . 252
State Laws prohibiting the Recovery of British Debts . . 253
Articles of the Treaty infringed by New York . . . 254, 255
Powers of the Government inadequate . . . . . 255 s‘.
Treaty of Peace . . . . . . . . . 256
Violations of its Articles . . . . . . . . 257
CONTENT S. XXVI]
O‘
Congress recommend to the States to repeal all Acts repugnant to
the Treaty . . . . . . . . . 258
The two Countries remain in the same Position . . . . 259
CHAPTER III.
1786-1787.
No SEcuRrrr AFFORDED BY THE CONFEDERATION To THE STATE
GovERNMENTs—Srurs’s REBELLION m MASSACHUSETTS, AND ITS
KINDRED DISTURBANCES.
Defence against External Assaults, the Object of the Confederation 260
Construction of the State Constitutions . . . . . 261
Fundamental Doctrine of the American Constitutions . . 262
Commencement of Discontents in Massachusetts . . 263
The Confederation without Power to act upon the Internal Condi-
tion of a State . . . . . . . . 264, 265 "
State Governments exposed to the angers of Anarchy . . i 265
Insurrection in Massachusetts . . . . . . . 266
Debt of that State at the Close of the War . . . . 266 ,
Decrease of Exports and Fisheries . . . . . . 267
General Condition of the State . . . . . 267, 268
Private Debts . . . ; . . . . . . 268
The Tender Act . . . . . l. . . . 268
Effects of this Law . . . . . . . . . 269
’ Shays’s Rebellion . . . . . . . . . 269
Firmness of Governor Bowdoin . ; . . . . . 270
Insurrection suppressed . . . . . . . . 270
Congress unable to interpose . . . . . . . 271
Hostile Disposition of the Western Indians . . . . 271
Troops to be raised by the New England States . . . . 272
Extent of the Disafi'ection in New England . . . . 273
Beneficial Efi‘ect of these Disturbances . . . . . 273
The Union necessary to the Preservation of Order . . . 274
Washington ’s Anxieties . . . . . . . . 274
C H A P T E R 1 V .
ORIGIN AND N Ecassr'rr or THE PowER To REGULATE Comdsaca.
Inability of the Confederation to manage Foreign‘ Commerce . 276 {A
t Essential that a should be managed by the United States . . 277
Views of the Revolutionary statesmen . . . . 277, 278
Commercial Relations of the United States with Foreign Countries 279
xxviii coNTENTs.
Negotiation of the Treaty with the Netherlands . l. . . 280
Duties and Imposts . . . . 4. . . . . 281
Congress without Power to enforce Treaty Stipulations upon the
States . . . . . . . . - . . 282
Relations of the United States with Great Britain . . . . 282
Measure of Mr. Pitt . . . . . . ' . . 282
Change of the English Administration . . . . . . 283
Mr. Pitt’s Bill . . . . . . . 283
Views of the New English Administration . . . . 283, 284
American Trade excluded from the British West Indies _ . . 284
The three great Branches of American Commerce . . . 285
Congress apply to the States for further Powers . . . 286
Action of the States thereupon . . . . . . . 286
Success of Treaties dependent on the Grant of further Powers . 287
Incongruities in the Grants of the several States . . . . 288
Failure of the Attempt to negotiate ‘Commercial Treaties . . 289
Discordant Legislation of the States . . . . . . 290
CHAPTE R V.
1783-1787.
THE Punmc LANDS.-—GOVERNMENT OF THE NORTHWESTERN TERRI-
ToRY.-—.-THREATENED Loss OF THE WESTERN SETTLEMENTS.
Relations of Congress to the Public Lands . . . . . 291
Efforts to procure Cessions from the States . . . . 292
Cession by New York . . . . . . . . 293
Disposal of the Territories . . . . . . 293
Power of Congress to acquire and hold Lands . - . . . 293
Its Constitutional Authority to deal with acquired Territory . 294
Cession of Northwestern Territory by Virginia . . . . 295
States to be formed from this Territory 296
Congress pass a Resolve for the Regulation of ceded Territory . 296'
Principles, on which the Government of New States should be es-
tablished . . . . . . . . . . 297
Provision for admitting New States into the Union . . . 298
Compact between the Old and New States . . . . . 299
The Public Lands the true Resources for the Payment of the Public
Debt I ' . . . . . . 299
Slavery to be excluded from the New States . . . 299
Cession by Massachusetts and Connecticut of a Portion of their Ter-
ritorial Claims . . . . . . . . 299, 300
Modification by Virginia of her Act of Cession . . . . 300
' CONTENTS. XXIX
, The States dividedwith Regard to the Mississippi . . 314, 315
i
Cession of Lands by South Carolina . . . . 301
N 0 other Lands ceded to the United States before 1787 . . 301
Ordinance for the Government of the Northwestern Territory enacted 302
Its Provisions concerning Property . . . . . . 302
Civil Government of the Territory . . . . . . 303
Laws to be adopted . . . . . . . . . 303
Appointment of Civil Oflicers . . . . . . 304
Counties and Townships to be formed . . . . .. 304
Representation in the Legislature provided for . . 304
Articles of Compact between the Original States and the People and
States in the Territory . . . . . . . 305, 306
Wisdom of this Scheme of Government . . . . 306, 307
Political Difliculties in the Management of this Territory . . 308
Threatened Loss of the Western Settlements . . . 309, 310
Washington’s Plan of uniting the Eastern and Western States . 310
He considers the Opening of the Mississippi not important . 311
The Southern Boundary of the United States, by the Treaty of
Peace . . . . . . . . . . 312
Secret Article in that Treaty . . . . 1312
Spain refuses to concede the Navigation of the Mississippi. 7 . 313
Arrival of Guardoqui as Minister from Spain . . . . 313
The United States insist on the Right to navigate the Mississippi 314
The Right refused, but a Commercial Treaty tendered . . -. 314
Importance of this Treaty 314
Mr. Jay proposes a Middle Course . . . . . . 315
Treaty to be limited to Twenty-five Years . . . . . 316
Use of the River to be suspended for the same Period . . 316
Change in Mr. Jay’s Instructions . . . . . . . 317 I
Seizure of American Property at Natchez . . . . 318
Inhabitants of the Western Settlements alarmed . . . . 318
Richness of their Territory . . . . . . . 319
Their Complaints of Congress . . . . . . . 320
Their Resolves . . . . . . . 321 -
Retaliatory Seizure of Spanish Property . . . . . 322
The Executive of Virginia disavows the Act . . . . 322
Guardoqui adheres to his Position . . . . . 323
Committees of Correspondence formed in the West . . . v .323
The Inhabitants of Kentucky in Motion . a . u . . . 323
Remonstrances of Virginia on the Subject of shutting up the Mis- _
sissippi . . . . . . . 323
Their Delegates intercede with ‘the Spanish Minister 7 . ._ 3'24
XXX CONTENTS.
Their Efforts ineffectual . . . . . . . . 324
The Vote of Seven States attacked in Congress . . . 325
Unconstitutionality of that Vote . . . . . . 325, 326
It is not rescinded . . . . . . . . . 326
Critical Position of the Country . . \ . . . . . 326
The Subject of the Mississippi postponed to await the Action of the
Federal Convention . . . . . . . 326, 327
CHAPTER V1.
1783-1787. "
DEcAY AND FAILURE OF THE CONFEDEEATION. -— PROGRESS OF OPINION.
—STEPS wHIcH LED To THE CONVENTION or 1787.—INFLUENcE
AND EXERTIONS 0F HAMILToN.-- MEETING OF THE CONVENTION.
The Federal Power under the Confederation unequal to the Dis-
charge of its Duties . . . . . . . . 328
The Confederation destitute of Political Sovereignty . . . ‘ 329
Capacities of the Country . . . . . . . 330
Diificulties in the Formation of a Federal Constitution . . 331
Progress of Opinion upon the Subject of a General Government 332, 333
Important Centres of Opinion . . . . . . . 334
Action of Massachusetts . . . . . . . . 334
Distress pervading the Commercial Classes . . . 334, 335
Governor Bowdoin’s Message . . . . . . . 336
The Legislature recommend a General Convention . . 336, 337
‘Their Delegates in Congress refuse to present the Resolves . . 337
Congress desire only a Temporary Power over Commerce . . 337
Jealousy in Congress of the Changes likely to be made in the Gov-
ernment . . . . . . . . . . 338
The Legislature of Massachusetts rescind their Resolutions . . 339
Condition of Congress in 1785 . . . . . . . 339
Action of Virginia . . . . . . . . . 340
Proposed Enlargement of the Powers of Congress over Trade . 340
Difl‘iculties between the Citizens of Virginia and Maryland . . 341
Meeting at Alexandria . . . . . . 341
Report of the Commissioners of Virginia and Maryland to their
Governments . . . . . . . . * . 342
Virginia invites a Meeting of Commissioners from all the States at
Annapolis . , . . . . . . . . . 343
Action of New York . . . 343
Final Appeal by Congress for the Establishment of the Revenue
System of 1783 . . . . . . . 344
CONTENTS.
nurxi
Exertions of Hamilton . . . . . .
The Revenue System agaf‘r rejected by the New York Legislature
Commissioners appointed by New York to attend the Commercial
Convention . . . . .
Course of New York upon the Revenue System
Five States only represented at Annapolis .
Hamilton’s Original Plan, and its Modification . .*
His Report . . . . . . .
He desires an entirely New System of Government
Caution in his Proposal
His extensive Views . . . . - . .
Reception of the Recommendation of the Annapolis Commissioners
in Virginia . . . .
Objections to it in Congres . . . .
Report of the Commissioners taken into Consideration
Opinions of different Members upon the Subject
Legal Difliculties in the Way of a Convention .
Views entertained in Congress
Critical State of the Country .
It impels Congress to Action . . .
Influence of the Course of New York upon Congress
Their Delegation instructed to move a Convention
Failure of this Proposition . . . . . .
Adoption of a Resolve proposed by the Massachusetts Members for
the same Purpose . . . . .
Mode of Amendment recommended by Congress .
Importance of this Action of Congress
Dangers of Inaction . . - . . .
Importance of the Sanction of the Old Government, in the Formation
of a new one . '
Hamilton’s Wisdom . . . . . .
Reason for not intrusting the Revision of the System of Government
\
to Congress . . . . . . 365,
Powers of the Convention not defined by Congress
Nature of the Crisis . . . . . . . .
Danger of an Attempt to establish Monarchical Government .
Washington ’s Opinions . . . . 370,
Other Difliculties attending the Revision of the Federal System
Sectional Jealousy and its Causes . . .
347,
352 -
357.
358,
371,
372,
New Idea of a Union . . . . .
Prevailing Feeling among Statesmen concerning the Convention
Hamilton fully equal to the Demands of the Crisis . .
373,
345
346
346
346
347
34s
343
349
350
350
351
355
355
355_
356
357
358
358
359
360
360
361
362
362
363
364
365
366
367
368
369
371
371
372
373
373
374
Xxxii CONTENTS.
Assembling of the Convention . . . . . . . 374
Novelty of their Undertaking . . . p . . . 374, 375
State of Political Science in Modern Europe . . . . 375
The Results of English Liberty . . . . . 376, 377 .
French Discussions . . . . . . . . 377, 378
The English Constitution an imperfect Guide . . . ~ . 378
Nature of the Problem . . . . . . . . 379
CHAPTER v11.
THE FRAMERS or THE CONSTITUTION.-—-WASHINGTON, PnEstnENT or
THE CoNvENTIoN.
Embarrassments attending the Assembling of the Convention . 380
Discipline to which the American People had been subjected 381, 382
The Constitution the Result of Circumstances . . . 382
Consequences of a Want of Power in the First Government . 383
Its Incapacity . . . . . . . . . . 384
Sufl’erings of the People . . . . . . . . 384
Civil Liberty the Result of Trial and Suffering . . . 385, 386
Qualities of the Framers of the Constitution . . . 386, 387
Hamilton . . . . . . . . . . . 387
Washington . . . . . . . . . . 388
Madison . . . . . . . . . . . 388
Franklin . . . . . . . . . . 388
Gouverneur Morris . . . . . . . . . 388
Their Characters formed during the Revolution . . 388, 389
Diversities of Opinion in such an Assembly . . . . . 389
Patriotism of its Members . . . . . . . 390
A Republican System their great Object . . - . . 390
Slight Value of the Examples of "other Countries . . . 391
Necessity for a National Head . . . . 392
The New Government established without Violence . . . 393
Washington at Mount Vernon . . . . 393, 394
His Opinions upon the Powers of the Federal Government 394 —396
His F cars as to the Result of a Convention . . . . 396, 397
The Legislature of Virginia desire to place him at the Head of their
Delegation . . . . . . . . . . 397
Refuses informally . . . . . . . . . 398
Declines a Re-election as President of the Society of the Cincinnati 398
Receives Ofi'icial Notice of his Appointment to the Convention . . 399
Declines the Appointment . . . . . . . . 399
The Insurrection in Massachusetts changes his Determination 399, 400
coN'rENTs. xxxm
He leaves Mount Vernon for Philadelphia . . . . . 401
Is elected President of the Convention . . . . . 401
His great Object, to secure a Republican Government . . . 402
The Idea of a Monarchical Government entertained to some Extent 402
Coercive Power necessary in the General Government . . . 403
Washington’s Character as a Statesman . . . . . 404
His Fitness for the Chair of the Convention . . . . . 405
CHAPTER VIII.
HAMILTON.
Causes why Hamilton is less known at the present Day, than other
Statesmen of the Revolution . . . . . . . 406
Immediate Effect of his Death upon the Count . . . 407
His Birth and Education . . . . . . . . 408
Very early Entrance upon Political Life . . . . . 408
His Essays on the Rights of the Colonies . . . . . 408
Appointed Aide-de-Camp to Washington . . . . . 409
Elected to Congress from New York . . . . .— . 409
A Member of the Legislature . . . . . . . 409
Delegate to the Federal Convention . . . . . . 409
One of the Authors of the Federalist . . . . . 409
Elected to the State Convention . . . . . . . 409
Secretary of the Treasury . . . . . . . 409
Retirement . . . ()0 . . . . . . . 409
Command of the Provisional Army . . . . . . 409
Practice of the Law . . . . . . . . . 409
Death . . . . . . . . . . 409, 410
Character . . . . . . . . . . 410-419
CHAPTER IX.
MADISON.
His Birth and Education . . . . . . . . 420
Entrance into Congress . . . . . . 421
His Influence in inducing Virginia to yield the Northwest Territory 422
Other important Services in the Congress of the Confederation 422, 423
Retires to Virginia 3 . . . . . . . . 423
Efforts for the Enlargement of Commercial Powers . . 423, 424
His Connection with the Events which led to the Convention 424 - 427
Appointed one of the Commissioners to Annapolis . . . 427
von. 1. e
xxxiv cONTENTs.
Drafts the Act of Virginia appointing Delegates to the Federal Con-
vention . . . . . A 427
His Labors in the Convention . . ' . . 427, 428
Records the Debates . . . . . . . 428
His Character . . . 428 - 431
C H A P T E R X .
FRANKLIN.
His long Career of Public Service . . 433, 434
His distinguished Residences abroad . b . ‘ . 434, 435
Importance and Influence of his Presence in the Convention . 435 -437
His Objections to the Constitution . . . . 437
Sacrifices them to the Public Good . 437
His Efforts to produce Unanimity 437, 438
C H A P T E R X I .
GOUVERNEUR MORRIS.
Birth and Education . . . . . . 440
Views on the Independence of America . . 441
Services in Congress . 442
Appointed Assistant Financier . . . 443
Elected to the Federal Convention . . . . . 444
His Character 444 — 447
CHAPTER XII.
KING.
Birth and Education . . . . . . I . 448
Elected to Congress \ '. . . . , . 448
His Opinions on the Subject of a Federal Convention 449
His Views of the Insurrection in Massachusetts . 450
Disappointment concerning the Powers of the‘ Confederation . 450
Change of Opinion . . . . . 450, 451
View of the true Principle for the new Government 451
Introduces the Prohibition against Laws affecting the Obligation of
Contracts ' . . . . ~. .
His Character ' . . . . . .
452
453
CONTENTS. my
CHAPTER XIII,
CHARLES Cornswon'rn PINCKNEY
Descent and Education . . . . . . . . 454
Military Career . . . . . . . . 454
Appointed to the Federal Convention . . . . . .
His Course on the Slave-Trade, and the Regulation of Commerce 456
Vindication of the Framers of the Constitution . . . 456 - 460
Note on the Abolition of the Slave-Trade . . . ' . 460
CHAPTER XIV.
WILSON.
Birth and Education . . . . . . . . . 462
Emigration to America . . . . . 462
Services in Congress . . . . . . . . 462, 463
His Opinions in the Convention . . . . . 463, 464
Exertions for a Representative Government . . . “t . 464
Appointed Judge of the Supreme Court of the United Stateeg . 465 _
His Speech on the Constitution in the Pennsylvania Convention 465 —479
CHAPTER XV.
RANDOLPH.
An Aide-de-camp to Washington . . . . . . 480
Services in Congress . . . . . . . . 480
Elected Governor of Virginia . . . . . . . 481
Procures the Attendance of Washingto . . . . . 481
His Opinions on the Constitution, and the existing Crisis . 481— 485
Genealogy . . . . . . . . . . 485
CHAPTER XVI.
CoNeLUsIoN OF THE PRESENT VOLUME.
The Other Members of the Convention . . . . 486, 487
Responsible Position of the American People . 487, 488
xxxvi ‘ coNTENTs
APPENDIX.
Circular Letter of Congress recommending the Articles of Con-
federation . . . . . . . . . . 491
Representation of New Jersey on the Articles of Confederation 493
Act of New Jersey accepting the Confederation . . . . 497
Resolutions passed by the Council of Delaware respecting the Arti-
.cles of Confederation . . . . . . . . 498
Act to authorize the Delegates of the Delaware State to ratify the
Articles of Confederation . . . . . . . 500
Instructions of the General Assembly of Maryland to their Dele-
gates, respecting the Articles of Confederation . . 501
Act of the Legislature of New York, to facilitate the Completion
of the Articles of Confederation and Perpetual Union among the
United States of America . . . . . . 505
Report of the Committee of Congress as to the Proceedings of the
Legislatures of Maryland, New York, and Virginia in Relation
to the Articles of Confederation . . . . 506
Act to empower the Delegates of Maryland to ratify the Articles 0 " ,
Confederation . . 508
Articles of Confederation and Perpetual Union between the States 509
Members of the Convention which formed the Constitution . . 516
BOOK I.
THE CONSTITUTIONAL HISTORY OF THE UNITED
STATES, FROM THE COMMENCEMENT on THE
REVOLUTION To THE ADOPTION OF THE ARTI
CLES or CONFEDERATION. '
VOL. 1. 1
CHAPTERI.
1774-1775.
ORGANIZATION or THE FIRST CONTINENTAL CONGRESSu—ORIGIN
on THE UNION.
THE thirteen British colonies in North America,
by Whose inhabitants the American Revolution Was
achieved, Were, at the commencement of that strug-
gle, so many separate communities, having, to a con-
siderable exteiiwt,~ dili'ielrent political organizations and
difi'erent municipal laws: but their various popula-
tions spoke almost universally the English language,
These colonies were!‘ Virginia, Massachusetts, 1 New
Hampshire, "Connecticut, L‘{Rhode Island, Maryland,
FNevv York,“ New Jersey, ‘QPennsylvania, 7 Delaware,
i'North CarOIinaQ‘South Carolina, and‘it Georgia. From
the times when they were respectively settled, until
the union, formed under the necessities of a common
cause at the breaking out of the Revolution, they
had no political connection; but each possessed a
domestic government peculiar to itself, derived di-
rectly from the crown of England, and more or less
under the direct control of the mother country.
The political organizations of the colonies have
been classed by jurists and historians under the
4 THE FEDERAL CONSTITUTION. [Boon 1.
three heads of Provincial, Proprietary, and Charter
governments.
To the class of Provincial governments belonged
the Provinces of New Hampshire, New Jersey,
Virginia, the two Carolinas, and Georgia. These
had no other written constitutions, or fundamental
laws, than the commissions issued to the Governors
appointed by the crown, explained by the instruc-
tions which accompanied them. The Governor, by
his commission, was made the representative or
deputy of the King, and was obliged to act in
conformity with the royal instructions. He was
assisted by a Council, the members of which, besides
participating with him, to a certain extent, in the
executive functions of the government, constituted
the upper house of the provincial legislature; and
he was also authorized to summon a general -as-
sembly of representatives of the freeholders of the
Province. The three branches thus convened, con-
sisting of the Governor, the Council, and the Repre-
sentatives, constituted the provincial Assemblies, hav-
ing the power of local legislation, subject to the rati-
fication and disapproval of the crown. The direct ’
control of the crown over these provincial govern-
ments may also be traced in the ,features, common
to them all, by which the Governor had power to
suspend the members of the Council from office, and,
whenever vacancies occurred, to appoint to those
vacancies, until the pleastue of the crown should be
known; to negative all the proceedings of the assem-
bly; and to prorogue or dissolve it at his pleasure.
CH. 1.] FIRST CONTINENTAL CONGRESS. 5
The Proprietary governments, consisting of Mary-
land, Pennsylvania, and Delaware, “were those in
which the subordinate powers of legislation and gov-
ernment had been granted to certain individuals
called the proprietaries, who appointed the Governor
and authorized him to summon legislative assemblies.
The authority of the proprietaries, or of the legis-
lative bodies assembled by the Governor, was re-
strained by the condition, that the ends for which
the grant was made to them by the crown\ should be
substantially pursued in their legislation, and that
nothing should be done, or‘ attempted, which might
derogate from the sovereignty of the mother country.
In Maryland, the laws enacted by the proprietary
government were not subject to the direct control of
the crown; but in Pennsylvania and Delaware they
were.1
The Charter governments, consisting, at the period
of the Revolution, of Massachusetts, Rhode Island,
and Connecticut, may be said, in a stricter sense, to
have {possessed written constitutions for their general
political government. The charters, granted by the
crown, established an organization of the different
departments of gOvern/ment similar to that in the
provincial governments. In Massachusetts, after the
charter of and Mary granted in 1691, the
Governor was appointed by the crown; the Council
were chosen annually by the General Assembly, and
the House of Representatives by the people. In
1 1 Story’s Commentaries on the Constitution, O 160. '
6 THE FEDERAL CONSTITUTION. [BOOK 1.
Connecticut and Rhode Island, the Governor, Coun-
cil, and Representatives were chosen annually by the
freemen of the colony. In the charter, as well as
the provincial governments, the general power of
legislation was restrained by the condition, that the
laws enacted should be, as nearly as possible, agree-
able to the laws and statutes of England.
One of the principal causes which precipitated
the war of the Revolution was the blow struck by
Parliament at these charter governments, commen-
cing with that of Massachusetts, by an act intended
to alter the constitution of that Province as it stood
upon the charter of William and Mary; a precedent
which ustly alarmed the entire continent, and in its
principle affected all the colonies, since it assumed
that none of them possessed constitutional rights
which could not be altered or taken away by an act
of Parliament. The “ Act for the better regulating
the government of the Province of Massachusetts
Bay,” passed in 17 7 4, was designed to create an
executive power of a totally different character from
that created by the charter, and also to remodel the
judiciary, in order that the laws of the imperial gov-
ernment might be more certainly enforced.
The charter had reserved to the King the appoint-
ment of the Governor, Lieutenant-Governor, and
Secretary of the Province. It vested in the General
Assembly the choice of twenty-eight councillors,
subject to rejection by the Governor; it gave to the
Governor, with the advice and consent of the Coun-
cil, the appointment of all military and udicial
CH. 1.] FIRST CONTINENTAL CONGRESS. '7
officers, and to the two houses of the legislature the
appointment of all other civil oflicers, with a right
of negative by the Governor. The new law vested
the appointment of councillors, udges, and magis-
trates of all kinds, in the crown, and in some cases
in the Governor, and made them all removable at
the pleasure of the crown. A change so radical as
this, in the constitution of a people long accustomed
to regard their charter as a compact between them-
selves and the crown, could not but lead to the most
serious consequences. "
The statements which have now been made are
sufiicient to remind the reader of the important fact,
that, at the commencement of the Revolution, there
existed, and had long existed, in all’ the colonies,
local legislatures, one branch of which was composed
of representatives chosen directly by the people,
accustomed to the transaction of public business,
and being in fact the real organs of the popular
will. These bodies, by virtue of their relation to
the people, were, in many instances, the bodies
which took the initiatory steps for the organiza-
tion of the first national or Continental Congress,
when it became necessary for the colonies to unite in
the common purpose of resistance to the mother
country. But it should be again stated, before we
attend to the steps thus taken, that the colonies had
no direct political connection with each other before .
the Revolution commenced, but that each was a dis-
tinct community, with its own separate political or-
8 THE FEDERAL CONSTITUTION. [BOOK 1.
ganization, and without any power of legislation for
any but its own inhabitants ; that, as political com-
munities, and upon the principles of their organiza-
tions, they possessed no power of forming any
union among themselves, for any purpose what-
ever, without the sanction of the Crown or Parlia-
ment of England.1 But the free and independent
power of forming a union among themselves, for
objects and purposes common to them all, which
was denied to their colonial condition by the princi-
ples of the English Constitution, was one of the
chief powers asserted and developed by the Revolu-
tidn; and they were enabled to effect this union,
as a revolutionary right and measure, by the fortu-
1 That a union of the. colonies
into one general government, for
any purpose, could not take place
without the sanction of Parliament,
was always assumed in both coun-
tries. The sole instance in which
a plan of union was publicly pro-
posed and acted upon, before the
Revolution, was in 1753-4, when
the Board of Trade sent instruc-
tions to the Governor of New York
to make a treaty with the Six
Nations of Indians; and the other
colonies were also instructed to
send commissioners to be present
at the meeting, so that all the
provinces might be comprised in
one general treaty, to be made in
the King’s name. It was also rec-
ommended by the home govern-
ment, that the commissioners at
this meeting should form a plan
of union among the colonies for
their mutual protection and defence
against the French. Twenty-five
commissioners assembled at Al-
bany in May, 1754,.from New
Hampshire, Massachusetts, Rhode
Island, Connecticut, New York,
Pennsylvania, and Maryland. In
this body, a plan of union was di-
gested and adopted, which was
chiefly the work of Dr. Franklin.
It was agreed that an act of Par-
liament was necessary to authorize
it to be carried into effect. It was
rejected by all the colonial Assem-
blies before which it was brought,
and in England it was not thought
proper by the Board of Trade to
recommend it to the King. In
America it was considered to have
too mpch of prerogative in it, and
in England to be too democratic. It
CH. 1.] FIRST CONTINENTAL CONGRESS. 9
nate circumstances of their origin, which made the
people of the different colonies, in several important \\\~
senses, one people. They were, in the first place,
chiefly the descendants of Englishmen, governed
by the laws, inheriting the blood, and speaking the
language of the people of England. As British sub-
jects, they had enjoyed the right of dwelling in any
of the colonies, without restraint, and of carrying on
trade from one colony to another, under the regula-
tion of the general laws of the empire, without re-
striction by colonial legislation. They had, more-
over, common grievances to be redressed, and a com
mon independence to establish, if redress could not
be obtained: for although the precise grounds of dis-
pute with the Crown or the Parliament of England
was a comprehensive scheme of
government, to consist of a Gov-
ernor-General, or President-Gen-
eral, who was to be appointed and
supported by the crown, and a
Grand Council, which was to con-
sist of one member chosen by each
of the smaller colonies, and two or
more by each of the larger. Its
duties and powers related chiefly
to defence against external attacks.
It was to have a general treasury,
to be supplied by an excise on cer-
tain articles of c’onsumption. See
the history and details of the
scheme, in Sparks’s Life and
Works of Franklin, I. 176, III.
22—55; Hutchinson’s History of
Massachusetts, III. 23; Trumbull’s
History of Connecticut, II. 355;
Pitkin’s History of the United
vor. 1. ‘2
States, I. 140— 146. In 1788,
Franklin said of it: “The different
and contradictory reasons of dislike
to my plan make me suspect that
it was really the true medium; and
I am still of opinion it would have
been happy for both sides, if it had
been adopted. The colonies so
united would have been sufiiciently
strong to have defended themselves :
there would have been no need of
troops from England: of course
the subsequent pretext for taxing
America, and the bloody contest
it occasioned, would have been
avoided. But such mistakes are
not new: history is full of the
errors of states and princes.”
(Life, by Sparks, 1. 178.) We
may not join in his regrets now.
10 THE FEDERAL cONsTITUTIoN. [BOOK I
had not always been the same in all the colonies, yet
when the Revolution actually broke out, they all
stood in the same attitude of resistance to the same
j oppressor, making common cause with each other,
‘ and resting upon certain great principles of liberty,
which had been violated with regard to many of
them, and with the further violation of which all
were threatened. '
It was while the controversies between the mother
country and the colonies were drawing towards a
crisis, that Dr. Franklin, then in England as the
political agent of Pennsylvania, of Massachusetts,
and of Georgia, in an oflicial letter to the Massa-
chusetts Assembly, dated July 7th, 177 3, recom-
mended the assembling of a general congress of all
the colonies. “ As the strength of an empire,” said
he, “ depends not only on the union of its parts, '
but on their readiness for united exertion of their
common force; and as the discussion of rights may
seem unseasonable in the commencement of actual
war, and the delay it might occasion be prejudicial
to the common welfare; as likewise the refusal of
one or a few colonies would not be so much re-
garded, if the others granted liberally, which per-
haps by various artifices and motives they might be
prevailed on to do; and as this want of concert
would defeat the expectation of general redress, that
might otherwise be justly formed; perhaps it would
be best and fairest for the colonies, in a general
congress now in peace to be assembled, or by means
CG. 1.] FIRST CONTINENTAL CONGRESS.
of the correspondence lately proposed, after a full
and solemn assertion and declaration of their rights,
to engage firmly with each other, that they will
never grant aids to the crown in any general war,
till those rights are recognized by the King and both
houses of Parliament; communicating at the same
time to the crown this their resolution. Such a step
I imagine will bring the dispute to a crisis.” 1
The first actual step towards this measure was
taken in Virginia. A new House of Burgesses
had been summoned by the royal Governor to
meet in May, I774. Soon after the members
had assembled at Williamsburg, they received the
news that, by an act of Parliament, the port of
Boston was to be closed on the first day of the
succeeding June, and that other disabilities were
to be inflicted on the town. They immediately
passed an order, setting apart the first day of June
as a day of fasting, humiliation, and prayer, “ to
implore the Divine interposition for averting the
heavy calamity which threatened destruction to their
1 It is not certain by whom the of Burgesses. But Mr. Sparks
first suggestion of a Continental
Congress was made. Thomas
Cushing, Speaker of the Massa-
chusetts Assembly, and a corre-
spondent of Dr. Franklin, appears
to have expressed to him the opin-
ion, previously to the date of
Franklin’s oflicial letter quoted in
the text, that a congress would
grow out of the committees of cor-
respondence which had been rec-
ommended by the Virginia House
thinks that no other direct and pub-
lic recommendation of the meas-
ure can be found before the date
of Franklin’s letter to the Mas-
sachusetts Assembly. Sparks’a
Life of Franklin, I. 350, note. In
the early part of the year 1774, the
necessity of such a congress began
to be popularly felt throughout all
the colonies. Sparks’s Washing-
ton, II. 326
12 THE FEDERAL CONSTITUTION. [BOOK I.
civil rights, and the evils of civil war, and to give
them one heart and one mind firmly to oppose, by
all just and proper means, every injury to Amer
ican rights.” Thereupon, the Governor dissolved
the House. But the members immediately assem-
bled at another place of meeting, and, having organ-
ized themselves as a committee, drew up and sub-
scribed an Association, in which they declared that
the interests of all the colonies were equally con-
cerned in the late doings of Parliament, and advised
the local Committee of Correspondence to consult
with the committees of the other colonies on the
expediency of holding a general Continental Con- "
gress. Pursuant to these recommendations, a popu-
lar convention was hplden at Williamsburg, on the
1st of August, which appointed seven persons as
delegates to represent the people of Virginia in a
general Congress to be held at Philadelphia in the
September following.1
The Massachusetts Assembly met on the last of
May, and, after negativing thirteen of the Council-
lors, Governor Gage adjourned the Assembly to meet
at Salem on the 7th of June. When they/ "came
together at that place, the House of Representatives
passed a resolve, declaring a meeting of committees
from the several colonies on the continent to be
highly expedient and necessary, to deliberate and
determine upon proper measures to be recommended
‘ Randolph, Richard Henry Lee,
ry, Richard Bland, Benjamin Har-
rison, and Edmund/Bendleton.
George Washington, Patrick Hen- Y)”
1 These delegates were Peyton
on. 1.1 FIRsT CONTINENTAL CONGRESS. 13
to all the colonies for the recovery and establishment
of their ust rights and liberties, civil and religious,
and for the restoration of union and harmony with
Great Britain. They then appointed five delegates 1
to meet the representatives of the other colonies in
congress at Philadelphia, in the succeeding Sep-
tember.
These examples were at once followed by the other
colonies. In some of them, the delegates to the Con-
tinental Congress were appointed by the popular
branch of the legislature, acting for and in behalf
of the people; in others, they were appointed by
conventions of the people called for the express pur-
pose, or by committees duly authorized to make the
appointment.2 The Congress, styling themselves
“ the delegates appointed by the good people of
these colonies,” assembled at Philadelphia on the
5th of September, 1774, and organized themselves
as a deliberative body by the choice of oflicers and
the adoption of rules of proceeding. Peyton Ran-
1 Thomas Cushing, Spamdel Ad-
ams, Robert Treat Paine, James
Bowdoin, and John Adams.
2 The delegates in the Congress
of; {1,17 74 from New Hampshire were
appointed by a Convention of Dep-
hties chosen by the towns, and re-
ceived their credentials from that
Convention. In Rhode Island, they
were appointed by the General As-
sembly, and commissioned by the '
Governor. 'In Connecticut, they
were appointed and instructed by
the Committee of Correspondence
for the Colony, acting under au-
thority conferred by the House of
Representatives. In New York,
the mode of appointment was vari~
one. In the city and county of
New York, the delegates were
elected by popular vote taken in
seven wards. The same persons
were also appointed to act for the
counties of West Chester, Albany,
and Duchess, by the respective
committees of those counties; and
another person was appointed in
the same manner for the county of
14 THE FEDERAL CONSTITUTION [BOOK I.
dolph of Virginia was elected President, and Charles
Thompson of Pennsylvania Secretary of the Congress.
N o precedent existed for the mode of action to be
adopted by this assembly. There was, therefore, at
the outset, no established principle which might
determine the nature of the union; but that union
was to be shaped by the new circumstances and
relations in which the Congress found itself placed.
There had been no general concert among the dif-
ferent colonies as to the numbers of delegates, or, as
they were called in many of the proceedings, “ com-
mittees” of the colonies, to be sent to the meeting at
Philadelphia. On the first day of their assembling,
Pennsylvania and Virginia had each six delegates
in attendance; New York had five; Massachusetts,
New Jersey, and South Carolina had four each;
Connecticut had three; New Hampshire, Rhode
Island, Delaware, and Maryland had two each.
The delegates from North Carolina did not arrive
until the 14th.1
Sufi‘olk. The New York dele-
gates received no other instruc-
tions than those implied in the
certificates, “ to attend the Con-
gress and to represent” the county
designated. In New Jersey, the
delegates were appointed by the
committees of counties, and were
simply instructed “to represent”
the Colony. In Pennsylvania, they
were appointed and instructed by
the House of Assembly. In the
countIes of New Castle, Kent, and
Sussex on Delaware, delegates
were Elected by a convention of
the freemen assembled in pursu-
ance of circular letters from the
Speaker of the House of Assem-
bly. In Maryland, the appoint-
ment was by committees of the
counties. In ‘Virginia, it was by
a popular convention of the whole
Colony. In South Carolina, it was
by the House of Commons. Geor-
gia was not represented in this
Congress.
1 Journals, I. 1. 12
CH. 1.] FIRST CONTINENTAL CONGRESS.
As soon as the choice of ofiicers had taken place,1
the method of voting presented itself as the first
thing to be determined; and the difficulties arising
from the inequalities between the colonies in respect
to actual representation, population, and wealth, had
to be encountered upon the threshold. Insuperable
obstacles stood in the way of the adoption of inter-
ests as the basis of votes. The weight of a colony
could not be ascertained by the numbers of its inhab-
itants, the amount of their wealth, the extent of their
trade, or by any ratio to be compounded of all
these elements, for no authentic evidence existed
from which data could be taken.2 As .it was appar-
ent, however, that some colonies had a larger pro-
portion of members present than others, relatively
to their size and importance, it was thought to be
equally objectionable to adopt the method of voting
by polls. In these circumstances, the opinion was
advanced, that the colonial governments were at an
end; that all America was thrown into one mass,
and was in a state of nature; and consequently, that
the people ought to be considered as represented in
the Congress according to their numbers, by the dele-
gations actually present.3 Upon this principle, the
voting should have been by polls,
But neither the circumstances under which they
were assembled, nor the dispositions of the members,
1 The President and Secretary 3 This opinion, we are told by
appear to have been chosen viva Mr. Adams, was advanced by Pat-
vace, or by a hand vote. John rick Henry. See notes of the de
Adams’s Works, II. 365. hate, in Adams, II. 366, 368
2 Adams, II. 366. '
16 THE FEDERAL CONSTITUTION. [Boon I.
permitted an adoption of the theory that all gov-
ernment was at an end, or that the boundaries of the
colonies were effaced. The Congress had not assem-
bled as the representatives of a people in a state of
nature, but as the committees of different colonies,
which had not yet severed themselves from the parent
state. They had been clothed with no legislative or
coercive authority, even of a revolutionary nature;
compliance with their resolves would follow only on
conviction of the utility of their measures; and all
their resolves and all their measures were, by the
express terms of many of their credentials, limited to
the restoration of union and harmony with Great
Britain, which would of course leave the colonies in
their colonial state. The people of the continent,
therefore, as a people in the state of nature, or even
in a national existence as one people standing in a
revolutionary attitude, had not then come into being.
The nature of the questions, too, which they were
to discuss, and of the measures which they were to
adopt, were to be considered in determining by
what method of voting those questions and meas-
ures should be decided. The Congress had been
called to secure the rights of the colonies. What
were those rights’! By what standard were they to
be ascertained? By- the law of nature; or by the
principles of the English Constitution, or by the
charters and fundamental laws of the colonies, re-
garded as compacts between the crown and the peo-
ple, or by all of these combined’! If the law of
nature alone was to determine their rights, then all
CH. 1.] FIRST CONTINENTAL CONGRESS.
allegiance to the British crown was to be regarded
as at an end. If the principles of the English Con-
stitution, or the charters, were to be the standard,
the law of nature must be excluded from considera-
tion. This exclusion would of necessity narrow the
ground, and deprive them of a resource to which
Parliament might at last compel them to look.1 In
order, therefore, to leave the whole field open for
consideration,‘ and at the same time to avoid com-
mitting themselves to principles irreconcilable with
the preservation of allegiance and their colonial rela-
tion to Great Britain, it was necessary to consider
themselves as an assembly of committees from the
different colonies, in which each colony should have
one voice, through the delegates whom it had sent
to represent and act for it. But, as if foreseeing the
time when population would become of necessity the
basis of congressional power, when the authority of
Parliament should have given place to a system of
American continental legislation, they inserted, in
the resolve determining that each colony should
have one vote, a caution that would prevent its
being drawn into precedent. They declared, as the
reason for the course which they adopted, "that the \
Nongress were not possessed of, or able to procure, ;
the proper materials for ascertaining the importance
of each colony.2
It appears, therefore, very clear, that an examina-
1 See the very interesting notes 2 Journals, 1. 10.
of their debates in Adams’s Works,
H. 366, 370- 377.
von. 1. 3
18 THE FEDERAL CONSTITUTION. [BOOK 1.
--<v- w.“
a.
tion of the relations of the first Congress to the
colonies which instituted it will not enable us to
assign to it the character of a government. Its
members were not elected for the express purpose
of making a revolution. It was an assembly con-
vened from separate colonies, each of which had
causes of complaint against the imperial government
to which it acknowledged its allegiance to be due,
and each of which regarded it as essential to its Own
interests to make common cause with the ‘others, for
the purpose of obtaining redress of its own griev-
ances. The idea of separating themselves from the
mother country had not been generally entertained
by the people of any of the colonies. All their pub-
lic proceedings, from the commencement of the dis-
putes down to the election of delegates to the .first
Congress, including the instructions given to those
delegates, prove, as we have seen, that they looked
for redress and relief to means which they regarded
as entirely‘ consistent with the principles of the Brit-
ish Constitution.1
1 The instructions embraced in
the credentials of the delegates to
the first Congress were as fol-
lows: — NEW HAMPSHIRE, — “ to
devise, consult, and adopt such
measures as may have the most
likely tendency to extricate the
colonies from their present dith-
culties; to secure and perpetuate
their rights, liberties, and privi-
.eges; and to restore that peace,
harmony, and mutual confidence
which once happily subsisted be-
tween the parent country and her
colonies.’ ’) MASSACHUSETTS ,—“ to
deliberate and determine upon wise
and proper measures, to be by them
recommended to all the colonies,
for the recovery and establishment
of their just rights and liberties,
civil and religious, and the restora-
tion of union and harmony between
Great Britain and the colonies,
most ardently desired by all good
men.” RHODE ISLAND, —- “ to
meet and join with the’ other com-
on. 1.]
FIRST CONTINENTAL CONGRESS.
Still, although this Congress did not take upon
themselves the functions of a government, or propose
revolution as a remedy for the wrongs of their con-
stituents, they regarded and styled themselves as
“ the guardians of the rights and liberties of the
colonies” ;1 ‘and in that capacity they proceeded to
declare the causes of complaint, and to take the
necessary steps to obtain redress, in what they be-
lieved to be a constitutional mode.
missioners or delegates from the
other colonies in consulting upon
proper measures to obtain a repeal
of the several acts of the British
Parliament for levying taxes upon
his Majesty’s subjects in America
without their consent, and particu-
larly the commercial connection of
the colonies with the mother coun—
try, for the relief of Boston and
the preservation of American lib-
erty.” VIRGINIA, -- “ to consider
of the most proper and efl'ectual
manner of so operating on the
commercial connection of the colo-
nies with the mother country, as
to procure redress for the much
injured Province of Massachusetts
Bay, to secure British America
from the ravage and ruin of arbi-
trary taxes, and speedily to pro-
cure the return of that harmony
and union so beneficial to the whole
empire, and so ardently desired by
all British America.” Sou'm
Carrol-ma, - “ to consider the acts
lately passed and bills depending
in Parliament with regard to the
port of Boston and Colony of Mas-
sachusetts Bay, which acts and
These steps,
bills, in the precedent and conse-
quences, affect the whole continent
of America ; —also the grievances
under which America labors by
reason of the several acts of Par-
liament that impose taxes or duties
for raising a revenue, and lay un—
necessary restraints and burdens on
trade; — and of the statutes, par-
liamentary acts, and royal instruc-
tions, which make an invidious
distinction between his Majesty’s
subjects in Great Britain and
America; with full power and
authority to concert, agree to, and
effectually prosecute such legal
measures as, in the opinion of the
said deputies and of the deputies
so to be assembled, shall be most
likely to obtain a repeal of the said
acts and a redress of these griev-
ances.” The delegates from New
York and New Jersey were simply,
instructed “ to represent” those
colonies in the Congress. J our-
nals, I. 2 - 9.
1 Letter of the Congress to
Governor Gage, October 10, 1774.
Journals, I. 25, 26.
\
20 THE FEDERAL CONSTITUTION. [Bob]: I.
however, although not directly revolutionary, had a
revolutionary tendency.
1/ ‘On the 6th of September, 1774, a resolve was
passed, that a committee be appointed to state the
rights of the colonies in general, the several instances
in which those rights had been violated or infringed,
and the means most proper to be pursued for obtain-
ing a restoration of them. Another committee was
ordered on the same day, to examine and report the
several statutes affecting the trade and manufactures
of the colonies. On the following day, it was
ordered that the first committee should “consist of
two members, and the second of one member, from
each of the colonies.1 Two questions presented
themselves to the first of these committees, and cre-
ated a good deal of embarrassment. The first was,
whether, in stating the rights of the colonies, they
should recur to the law of nature, as well as to the
British Constitution and the American- charters and
grants. The second question related to the author-
ity which they should allow to be in Parliament ; —-
whether they should deny it wholly, or deny it only
as to internal affairs, admitting it as to external
trade; and if the latter, to what extent and with
what restrictions. It was soon felt that this ques-
tion of the authority of Parliament was the essence
of the whole controversy. Some denied it altogether.
Others denied it as to every species of taxation;
while others admitted it to extend to the regulation
1 Additions were made to it.
on. 1.] FIRST CONTINENTAL conennss. 21
of external trade, but denied it as to all internal
afi'airs. The discussions had not proceeded far, be-
fore it was perceived that this subject of the regula-
tion of trade might lead directly to the question of
the continuance of the colonial relations with the
mother country. For this they were not prepared.
It was apparent that the right of regulating the
trade of the whole country, from the local circum-
stances of the colonies and their disconnection with
each other, could not be exercised by the colonies
themselves: it was thought that the aid, assistance,
and protection of the mother country were necessary
to them; and therefore, as a proper equivalent, that
the colonies must admit the right of regulating the
trade, to some extent and in some mode, to be in
Parliament. The alternatives were, either to set up
an American legislature, that could control and reg-
ulate the trade of the whole country, or else to give
the power to Parliament. The Congress determined
to do the latter; supposing that they" could limit the
admission, by denying that the power extended to
taxation, but ceding at the same time the right to reg-
ulate the external trade of the colonies for the com-
mon benefit of the whole empire.1 They grounded
this concession upon "‘ the necessities of the case,” and
“ the mutual interests of both countries” ;2 meaning
by these expressions to assert that all legislative con-
trol over the external and internal trade of the colo-
nies belonged of right to the colonies themselves, but,
- 1 Works of John Adams. pressions explained, in Adams’s
2 See the origin of these ex- Works, 11. 373-375.
22 THE FEDERAL CONSTITUTION. [BOOK 1.
as they were part of an empire for which Parliament
legislated, it was necessary that the common legisla-
ture of the whole empire should retain the regulation
of the external trade, excluding all power of taxa-
tion for purposes of revenue, in order to secure the
benefits of the trade of the whole empire to the
mother country.
The Congress, therefore, after having determined
to confine their statement to such rights as had been
infringed by acts of Parliament since the year 17 63,
unanimously adopted a Declaration of Rights, in
which they summed up the grievances and asserted
the rights of the colonies. This document placed
the rights of the colonies upon the laws of nature,
the principles of the English Constitution, and the
several charters or compacts. It declared, that, as
the colonies were not, and from their local situation
could not be, represented in the English Parliament,
they were entitled to a free and exclusive power of
legislation in their several provincial legislatures,
where their right of representation could alone be
preserved, in all cases of taxation and internal polity,
subject only to the negative of their sovereign, in
such manner as a had been before accustomed. At
the same time, from the necessity of the case and
from a regard to the mutual interests of both coun-
tries, they cheerfully consented to the operation of
such acts of Parliament as were in good faith limited
to the regulation of their external commerce, for the
purpose of securing the commercial advantages of _
the whole to the mother country, and the commercial
\,
cs. 1.] FIRST CONTINENTAL coucnnss. 23
benefit of its respective members; excluding every
idea of taxation, internal and external, for raising a
revenue on the subjects in America, without their
consent.1 v
In addition to this, they asserted, as great consti-
tutional rights inherent in the people of all these
colonies, that they were entitled to all the rights,
liberties, and immunities of free and natural-born
subjects within the realm of England; to the com-
mon law of England, and especially to trial by a of the vicinage; to the immunities and privileges
granted and confirmed to them by royal charters, or
secured by their several codeg of provincial laws;
and to the right of peaceably assembling to consider
grievances and to petition the King.2
In order to enforce their complaints. upon the
attention of the government and people of Great
Britain, and as the sole means which were open to
them, short of actual revolution, of coercing the
ministry into a change of measures, they resolved
that after the 10th of September, 1775, Wa-
tiowwchandise, and every commodityuwhvat;
soever, wtqflGrea'LBgtlamjfielandganf {West In-
die’sjvoiight to cease, uhless the grievances of America
should be redressed before that time; and that after
the first day of December, 17 74, there should be no
importation into British America, from Great Britain

1 Journals, I. 29. embodying similar principles with
9 Ibid. They adopted also an those asserted in the Declaration
Address to the People of Great of Rights’. Ibid. 38, 67.‘
Britain, and a Petition to the King,
I
24 THE FEDERAL coNsTITUTroN. [BOOK I
-_,‘
or Ireland, of any goods, wares, or merchandise
whatever, or from any other place, of any such
goods, wares, or merchandise as had been exported
from Great Britain or Ireland, and that no such
goods, wares, or merchandise be used or purchased.1
They then prepared an association, or agreement, of
non-importation, non-exportation, and non-consump-
tion, in order, as far as lay in their power, to cause
a general compliance with their resolves. This asso-
ciation was subscribed by every member of the Con-
gress, and was by them recommended for adoption to
the people of the colonies, and was very generally
adopted and acted ulion.2 They resorted to this as
the most speedy, effectual, and peaceable measure to
obtain a redress of the grievances of which the colo-
nies complained; and they entered into the agree-
ment on behalf of the inhabitants of the several
colonies for which they acted.
t.
This Congress, which sat fi"om the 5th of Sep-
tember to the 26th of October, 1774, had thus made
the restoration of commercial intercourse between
the colonies and the other parts of the British empire
to depend upon the repeal by Parliament of the
1 Journals, 1. 21. day of December next; after which
2 This association, signed by the
delegates of Maryland, Virginia,
North Carolina, and South Caro-
lina, as well as of the other colo-
nies, contained, among other things,
the following agreement: —“ We
will neither import nor purchase
any slaves imported after the first
time we will wholly discontinue
the slave-trade, and will neither be
concerned in it ourselves, nor will
we hire our vessels, nor sell opr
commodities or manufactures, to
those who are concerned in it.”
Journals, 1. 33. I
CH. 1.] FIRST CONTINENTAL CONGRESS. 25
obnoxious measures of which they complained, and
upon the recognition of the rights which they as-
serted; for although their acts had not the founda-
tion of laws, the general adoption of their recom-
mendations throughout the colonies gave them a
power that laws rarely possess. Before they ad-
journed, they recommended that another Congress '
of all the colonies should be held at Philadelphia
on the 10th of the following May, unless their griev-
ances were redressed before that time, and that the
deputies to such new Congress should be chosen
immediately.1
But while the Continental Congress were engaged
in the adoption of these measures of constitutional
resistance, and still acknowledged their colonial re-
lations to the imperial government, the course of
events in Massachusetts had put an end to the forms
of law and government in that colony, as established
or upheld by imperial authority. The last Assembly
held in the Province upon the principles of its char-
ter had been dissolved by the Governor’s proclama-
tion, at Salem, on the 17th of June, 17 7 4. The new
law for the alteration of the government had taken
effect; and in August the Governor received from
England a list of thirty-six councillors, who were to
be called into oflice by the King’s writ of mandamus,
instead of being elected, as under the charter, by
the House of Representatives. Two thirds of the
number accepted their appointment; but popular
1 Journals, I. 56. Oct. 22, 1774.
von. 1. 4
26 THE FEDERAL CONSTITUTION. [BOOK I. '
indignation, treating them as enemies of their coun-
try, compelled the greater part of them to renounce
their offices. The new judges were prevented every-
_ where from proceeding with the business of the
courts, which were Obstructed by assemblies of the
people, who would permit no judge to exercise his
functions, save in accordance with the ancient laws
and usages of the Colony.
Writs had been issued for a'inew General Assem-
bly, which was to meet at Salem in October; but it
was found, that, while the old constitution had been
taken away by act of Parliament, the new one had
been rejected by the people. The compulsory resig-
nation of so many of the councillors left that body
without power, and the Governor deemed it expe-
dient to countermand the writs by proclamation, and
to defer the holding of the Assembly until the pop-
ular temper should have had time to cool. But the
legality of the proclamation was denied; the elec-
tions were everywhere held, and the members elect
assembled at Salem, pursuant to the precepts. There
they waited a day for the Governor to attend, admin-
ister the oaths, and open the session; but as he did
not appear, they resolved themselves into a Provin-
cial Congress, to be joined by others who had been
or might be elected for that purpose, and adjourned
to the town of Cambridge, to take into consideration
the affairs of the Colony, in which the regular and
established government was now at an end. Their
acts ‘were at first couched in the form of recom-
mendations to the people, whose ready compliance
0n. 1.] FIRST CONTINENTAL CONGRESS. 27
gave to them the weight and efiicacy of laws, and
there was thus formed something like a new and
independent government. Under the form of recom-
mendation and advice, they settled the militia, regu-
lated the public revenue, provided arms, and pre-
pared to resist the British troops. In December,
1774, they elected five persons to represent the Col-
ony in the Continental Congress that was to assemble
at Philadelphia in the ensuing May. They were met
by a proclamation, issued by the Governor, in which
their assembly was declared unlawful, and the people
were prohibited, in the King’s name, from complying
with their recommendations, requisitions, or resolves.
Through the winter, the Governor held the town
of Boston, with a considerable body of royal troops,
but the rest of the Province generally yielded obe-
dience to the Provincial Congress. In this posture
of affairs, the encounter between a detachment of the
King’s forces and a body of militia, commonly called
the battle of Lexington, occurred, on the 19th of
April, 1 775.
CHAPTERIL
1775-1776.
THE SEcoND CoNTrNENTAL CoNeREss.-FoRMATmN AND CHARAcTER
OF THE REvoLu'rroNARY GovERNMENT. -—.A.PPOINTMENT OF A CoM-
MANnER-1N-CH1EF.-FrRsT ARMY OF THE REvoLuTIoN.
A NEw Continental Congress assembled at Phila-
delphia on the 10th of May, 17 75; and in order to
observe ‘the growth of the Union, it is necessary to
trace the organization of this body, and to describe
briefly the kind of sovereignty which it exercised,
from the time of its assembling until the adoption
and promulgation of the Declaration of Indepen-
dence.1
1 Peyton Randolph, President
of the first and reelected President
of the second Congress, died very
suddenly at Philadelphia on the
22d of October, 1775, and was suc-
ceeded in that office by, John Han-
cock. Mr. Randolph was one of
the most eminent of the Virginia
patriots, and an intimate friend of
Washington. Richard Henry Lee
wrote to Washington, on the day
afier his death, that “in him .
American liberty lost a powerful
advocate, and human nature a sin-
cere friend.” He was formerly
Attorney-General of Virginia, and
in 1753 went to England as agent
of the House of Burgesses, to pro-
cure the abolition of a fee, known
as the pistole fee, which it had
been the custom of the Governors
of Virginia to charge for 'gning
land paten as a perquisi their
oflice. He succeeded ' getting
the fee abolished in cases where
the quantity of land exceeded one
hundred acres. He was com-
mander of a company of mounted
volunteers called the Gentlemen g
Associators, who served in the
en. 11.] SECOND CONTINENTAL CONGRESS. 29
The delegates to this Congress were chosen partly
by the popular branch of such of the colonial legis-
latures as were in session at the time, the choice
‘ being afterwards ratified by conventions of the peo-
ple; but they were principally appointed by conven-
tions of the people held in the various colonies. All
these appointments, except those made in New York,
took place before the battle of Lexington, and most
of I them had'been made in the course of . the previous
winter.1L The credentials of the delegates, therefore,
while they conferred authority to adopt measures
to recover -and establish American rights, still ex-
pressed, in many instances, a desire for the restora-
tion of harmony between Great Britain and her
colonies. In some cases, however, this desire was
not expressed, but a naked authority was granted, to
consent and agree to all such measures as the Con-
gress should deem necessary and effectual to obtain
a redress of American grievances.
When this Congress assembled, it seems to have
been tacitly assumed that each colony should con-
tinue to have one vote through its‘ delegation actu-
ally present. All the thirteen colonies were repre-
sented at the opening of the session, except Georgia
French war. He was President in December; in Connecticut, in
of the Virgnia Convention, as well
as a Delegate in Congress, at the
time of hisdeath. Sparks’s Wash-
ington, II. 58, 161; III. 139, 140;
XII. 420. ~
1 In Massachusetts, Pennsylva-
nia, and Maryland, they were made
November; in New Jersey, in Jan-
nary; in South Carolina, in Feb-
ruary; in the Lower Counties on
Delaware and in Virginia, in
March; in North Carolina, on the
5th of April; and in New York, on
the 22d of April.
30 THE FEDERAL CONSTITUTION. [BOOK I
and Rhode Island. Three days after the session
commenced, a delegate appeared from the Parish of
St. Johns in Georgia, who was admitted to a seat,
but did not claim the right of voting for the colony.
On the, 15th of May, a delegation from Rhode Island
appeardd and took their seats.
The credentials of the delegates contained no lim-
itation of their powers with respect to time, with the
exception of those from Massachusetts and South
Carolina, whose authority was not to extend beyond
the end of the year. The Congress continued in ses-
sion until the 1st of August, and then adjourned
for a recess to the 5th of September. When they
were again assembled, the delegations of several of
the colonies were renewed, with different limitations
as to their time of service. Georgia sent a full delega-
tion, who took their seats on the 13th of September.
Still later, the delegations of several other colonies
were renewed from time to time, and this practice
was pursued both before and after the Declaration
of Independence, thus rendering the Congress a per-
manent body.1
if Notwithstanding the absence of any express au-
thority in their instructions to enter upon revolu-
peared from New Hampshire, with-
out limitation of time; Connecticut
sent a new delegation on the 16th
of January, 1776, and Massachu-
setts did the same on the 31st of
1 Virginia renewed her delega-
tion for one year from the 11th of
August, 1775, and Maryland hers
with powers to act until the 25th
of March, 1776. These new dele-
gations, as well as that of Georgia,
appeared on the 13th of Septem-
ber, 1775. On the 16th of Sep-
tember, a renewed delegation ap-
January, for the year 1776. The
persons of the delegates were not
ofien changed.
CH. 11.] SECOND CONTINENTAL CONGRESS. 31
tionary measures, the circumstances under which the
Congress assembled placed it in the position and cast
upon it the powers of a revolutionary government.
Civil war had actually commenced, and blood had
been shed. Whether this war was to be carried on
for independence, or was only to be waged until the
British ministry could be compelled to acknowledge
the rights which the colonies had asserted, the Con-
gress necessarily became, at once, the organ of the
common resistance of the colonies against the parent, i'i
state. The first thing which evinces its new relation
to the country was the application made to it by the
Provincial Congress of Massachusetts, immediately
after the battle of Lexington, for direction and as-
sistance. While they informed the Continental Con-
gress that they had proceeded, at once, to raise a
force of thirteen thousand six hundred men, and had
made proposals to the other New England colonies
to furnish men in the same proportions, stating that
the sudden exigency of their affairs precluded the
possibility of waiting for\ direction, they‘ suggested
that an American army ought forthwith to be raised
for the common cause.1 {i In the same manner, the
city and county of New’lYork applied for the adzice
of Congress, how to c'onduct themselves with re-
gard to the British troops expected in that quarter.
These applications caused the Congress at once 'to
resolve itself into a committee of the whole, to take,
into consideration the state of America.2 ‘
1 Journals, I. 81, 82. 9 May 15, 1775. Journals, I. 162.
32 THE FEDERAL coNs'rrTuTroN. [Boon I.
These proceedings were soon followed by another
application on the part of the Provincial Convention
of Massachusetts, setting forth the difficulties under
which they were laboring for want of a regular form
of government; requesting explicit advice respecting
the formation of a new government; and offering to
submit to such a. general plan as' the Congress might
. direct for the colonies, or to endeavor to form such a
government for themselves as should not only pro-
mote their own advantage, but the union and inter-
est of the whole country.1
Placed in this manner at the head of American
affairs, the Continental Congress proceeded, at once,
to put the country into a state of defence, and virtu-
ally assumed a control over the military operations
of all the colonies. They appointed committees to
prepare reports on military measures: first, to rec-
ommend what posts should be occupied in the city of
New York; secondly, to devise ways and means for
procuring ammunition and military stores; thirdly,
to make an estimate of the moneys necessary to be
raised; and fourthly, to prepare rules and regula-
tions for the government of the army.
They then proceeded to create a continental, or
national army. To the battle of Lexington had
succeeded the investment of Boston, by an army
composed of regiments raised by the New England
provinces, under the command of General Ward. of
Massachusetts. This army was adopted by the Con
1 Journals, I. 112.
CH. 11.] SECOND CONTINENTAL CONGRESS.
gress ; and, with other forces raised for the common
defence, became known and designated as the Ameri-
can Continental Army.1 Six companies of riflemen
were ordered to be immediately raised in Pennsyl-
vania, two in Maryland, and two in Virginia, and
directed to join the army near Boston, and to be paid
by the continent.2
On the 15th of June, 17 7 5, Colonel George Wash-
ington, one of the delegates in Congress from Vir-
ginia, was unanimously chosen to be commander-in-
chief of the continental forces.3 Having accepted the
appointment, he received from the Congress a com-
mission, together with a resolution by which they
pledged their lives and fortunes to maintain, assist,
and adhere to him in his great office, and a letter of
instructions, in which they charged him to make it
his special care, “ that the liberties of America receive
no detriment?“ In the commission given to the gen-
eral, the style of “the United ‘Colonies ” was for the
first time adopted, and the defence of American Lib-
erty was assumed as the great object of, their union.5
On the 21st of June, Washington left Philadelphia
to take command of the army, and arrived at Cam-
bridge in Massachusetts on the 2d of July. Four
maj or-generals and eight brigadier-generals were also
appointed by the Congress for the continental army;
rules’ and regulations for its government were adopted
1 Form of enlistment, Journals, 4 Secret Journals of Congress,
I. 118. I. 18; Pitkin’s History of the
9 Ibid_ United States, I. 334, 335.
3 See note at end of the chapter. 5 Journals, I. 122.
VOL. 1. 5 a
34 THE FEDERAL CONSTITUTION. [BOOK I.
~Q_._.-.-
‘d’
and proclaimed, and the pay of the ofiicers and pri-
vates was fixed.1
The Congress also proceeded, as the legislative au-
thority of the United Colonies, to create a continental
currency, in order to defray the expenses of the war.
This was done by issuing two millions of dollars, in
bills of credit, for the redemption of which the faith
of the confederated colonies was pledged. A quota
of this sum was apportioned to each colony, and
each colony was made liable to discharge its pro-
portion of the whole, but the United Colonies were
obligated to pay any part which either of the colo-
nies Should fail to discharge.2 The first of these
quotas was made payable in four, the second in five,
the third in six, and the fourth in seven years from
the last day of November, 17 7 5, and the provincial
assemblies or conventions were required, by the re-
solves of the Congress, to provide taxes in theii
respective provinces or colonies, to discharge their
several quotas.3 The Congress also directed reprisals
to be made, both by public and private armed ves-
sels, against the ships and goods of the inhabitants
of Great Britain found on the high seas, or between
high and low water-mark; this being a measure of
retaliation against an act of Parliament, which had
authorized the capture and condemnation of Ameri-
can vessels, and which was considered equivalent to a
declaration of war. i, They also threw open the ports
1 June 16-July4,1775. Jour- 1775. Ibid., 1. 185, July 29,
nals, I. 112- 133. 1775.
2 Journals, I. 125, June 23, 3 Ibid.
C
C11. 11.]
SECOND CONTINENTAL CONGRESS. 35
of the United Colonies to all the world, except the
dominions and dependencies of Great Britain. '
Further, they established a general Treasury De-
partment, by the appointment of two joint Treasurers
of the United Colonies, who were required to give.
bonds for the faithfiil performance of the duties of
their office,1 and they organized a general Post-Office,
by the appointment of a Postmaster-General for the
United Colonies, to hold his office at Philadelphia,
to appoint deputies, and to establish a line of posts
from Falmouth in Massachusetts to Savannah in
Georgia, with such crpss posts as he should judge
proper.2
The proceedings of the Congress on the subject
of the Militia were, of ' course, in the nature of rec-
ommendations only. They advised the arming and
training of the militia of New York, in May, 1775,3
and in July they recommended to all the colonies to
enroll all the able-bodied, effective men among their
inhabitants, between sixteen and fifty years of age,
and to form them into proper regiments.4 The pow-
ers of the Congress to call into the field the militia .
www-
thus embodied were considered to be subject to the T
consent of those exercising the executive powers of
government in the colony, for the time being.5
] The relations of the country with the Indian tribes
l
1 Journals, I. 186,July 29, 1775.
Michael Hillegas and George Cly-
mer, Esquires, were elected Treas-
urers.
2 Journals, I. 177, 178, July 26,
1775. Dr.‘ Franklin was elected
Postmaster-General for one year
and until another should be ap~
pointed by a future Congress. ,
3 Journals, I. 106.
4 .Journals, I. 170.
5 Journals, I. 285. '
36 THE FEDERAL coNsTrTUTIoN. [BOOK L
I
\/
' and nations were deemed to be properly within the
exclusive jurisdiction of the Congress. Three de-
partments of Indian Affairs, Northern, Southern, and
Middle, with separate commissioners for each, were
therefore, established in July, having power to treat
with the Indians in the name and on behalf of the
United Colonies.1 Negotiations arid treaties were en-
tered into by these departments, and all affairs with
the Indians were conducted by them, under the direc-
tion and authority of the Congress.2
With regard to those inhabitants of the country
who adhered to the royalist side of the controversy,
the Congress of 17 7 5 - 6 did not assume and exer-
cise directly the powers of arrest or restraint, but left
the exercise of such powers to the provincial assem-
blies, or conventions, and committees of safety, in the
respective colonies, with recommendations from time
to time as to the mode in which such powers ought
to be exercised.3
Besides all this, the different applications made to
the Congress by the people of Massachusetts,4 of
New Hampshire,5 of Virginia,6 and of South Caro-
lina, concerning the proper exercise of the powers
of government in those colonies, and the answers to
those applications, furnish very important illustra-
tions of the position in which the Congress were
placed. To the people of Massachusetts, they de-
1 Journals, I. 161, 162. 4 June 9, 1775.
9 Journals, II. 112, 141, 163, 5 November 3, '1775.
201, 255, 302, 304. 6 December 4, 1775.
Q
3 Journals, I. 213; II. 5.
e
CH. 11.] SECOND CONTINENTAL CONGRESS. 37
clared that no obedience was due to the act of Par-
liament for altering their charter, and that, as the
Governor and Lieutenant-Governor would not ob-
serve the directions of that instrument, but had
endeavored to subvert it, their ofiices ought to be
considered vacant; and, as the Council was actu-
ally vacant, in order to conform as near as might
be to the spirit and substance of the charter, they
recommended to the Provincial Convention to write
letters to the inhabitants of the several towns en-
titled to representation in the Assembly, request-
ing them to choose representatives, and requesting
the Assembly when chosen to elect councillors;
adding their wish, that these bodies should exer-
cise the powers of government until a Governor of
the King’s appointment , would consent to govern
the colony according to its charter.1 The Provincial
Conventions of New Hampshire, Virginia, and South
Carolina were advised to call a full and free represen-
tation of the people, in order to establish such a
form of government as, in their judgment, would
best promote the happiness of the people and most
effectually secure peace and good order in their Prov
inces, during the continuance of the dispute with
Great Britain.2 This advice manifestly contemplated
the establishment of provisional governments only.
But between the date of these last proceedings and
the following spring a marked change took place,
both in the expectations and wishes of the people of
1 Journals, I. 115. 2 Journals, I. 231, 235, 279.
Q
38 THE FEDERAL CONSTITUTION. [BOOK I.
most of the colonies, with regard to an accommoda-
tion of the great controversy. The last petition of
the Congress to the King was refused a hearing in
Parliament, as emanating from an unlawful assembly,
in arms against their sovereign. In November, the
town of .Falmouth in Massachusetts was bombarded
and destroyed by the King’s cruisers. In the latter
part of December, an act was passed in Parliament,
prohibiting all trade and commerce with the colo-
nies; warranting the capture and condemnation of
all American vessels, with their cargoes, and author-
izing the commanders of the King’s ships to compel
the masters, crews, and other persons found in such
vessels, to enter the King’s service. The act also
empowered the King to appoint commissioners, with
authority to grant pardon, on submission, to individ-
uals and to colonies, and after such submission to
exempt them from its operation.1 Great prepara-
tions were made to reduce the colonies to the sub-
mission required by this act, and a part of the troops
that were to be employed were foreign mercenaries.
The necessity of a complete separation from the
‘ mother country, and the establishment of indepen-
dent governments, had, therefore, in the winter of
17 7 5 — 6, become apparent to the people of America.
Accordingly, the Congress, asserting it to be irrecon-
cilable to reason and good conscience for the people
of the colonies any longer to take the oaths and
aflirmations necessary for the support of any govern‘
1 Annual Register.
CH. 11.] SECOND CONTINENTAL CONGRESS. 39
ment under the crown of Great Britain, and declar-
ing that the exercise of every kind of authority under
that crown ought to be suppressed, and a government
of the people of the colonies substituted in its place,
recommended to the respective assemblies and con-
ventions of the colonies, where no governnient suffi-
cient for the exigencies of their affairs had been
already established, to adopt such a government as
in the opinion of the representatives of the people
would best conduce to the happiness and safety of
their constituents and of America in general’1
It is apparent, therefore, that, previously to the
Declaration of Independence, the people of the sev-
eral colonies had established a national government
of a revolutionary character, which undertook to act,
and did act, in the name and with the general con-
sent of the inhabitants of the country. This govern-
ment was established by the union, in one body, of
delegates representing the people of each colony;
who, after they had thus united for national pur-
poses, proceeded, in their respective jurisdictions, by
means of conventions and other temporary arrange-
ments, to provide for their domestic concerns by the
establishment of local governments, which should
be the successors of that authority of,,the British
crown which they had “ everywhere suppressed.”
The fact that these local or state governments were
not formed until a union of the people of the differ-
1 May 10, 1776. Journals, H. 166, 174.
t
40 TEE FEDERAL CONSTITUTION. 412001: I.
ent colonies for national purposes had already taken
place, and until the national power had authorized
and recommended their establishment, is of great
importance in the constitutional history of this
Country; foljt. Shnwathatno colony. agmgrsepa-
raflyiqrr itself, dissolved its own allegiance to the
British crown, but that this allegiance was dissolved
by the supreme authority of the people of all the
colonies, acting through their general agent, the Con-
gress, and not only declaring that the authority of
Great Britain ought to be suppressed, but recom-
mending that each colony should supplant _that au-
thority by a local government, to be flamed by and
for the people of the colony itself.
The powers exercised by the Congress, before the
Declaration of Independence, show, therefore, that its
functions were those of a revolutionary government.
It is a maxim of political science, that, when such a
government has been instituted for the accomplish-
‘ment of great purposes of public safety, its powers
are limited only by the necessities of the case out of
which they have arisen, and of the objects for which
they were to be exercised. When the acts of such
a government are acquiesced in by the people, they
are presumed to have been ratified by the people.
To the case of our Revolution, these principles are
strictly applicable, throughout. The Congress as-
sumed, at once, the exercise of all the powers‘ de-
manded by the public exigency, and their exercise of
those powers was fully acquiesced in and confirmed
by the people. It does not at all detract from the
\/
w‘
CH. 11.] SECOND CONTINENTAL CONGRESS.
authoritative character of their acts, nor diminish the
real powers of the Revolutionary Congress, that it
was obliged to rely on local bodies for the execution
of most of its orders, or that it couched many of
those orders in the form of recommendations. They
were complied with and executed, in point of fact, by
the provincial congresses, conventions, and local com-
mittees, to such an extent as fully to confirm the
revolutionary powers of the Congress, as the guar-
dians of the rights and liberties of the country. But
we shall see, in the further progress of the history
of the Congress, that while its powers remained en-
tirely revolutionary, and were consequently coexten-
sive with the great national objects to be accom-
plished, the want‘ of the proper machinery of civil
government and of independent agents of its own
rendered it wholly incapable of wielding those pow
ers successfully.

NOTE TO PAGE 33.
CN wAsnrNeToN’s APPOINTMENT AS COMMANDER-IN-CHIEF.
THE circumstances which attended the appointment of Washington to
this great command are now quite well known. He had been a member
of the Congress of 1774, and his military experience and accomplish-
ments, and the great resources of his character, had caused his appoint-
ment on all the committees charged with making preparations for the
defence of the colonies. Returned as a delegate from Virginia to the
Congress of 1775, his personal qualifications pointed him out as the
fittest person in the whole country to be invested with the command of
any army which the United ~Colonies might see fit to raise; and it is
quite certain that there would have been no hesitation about the appoint-
VOL. 1. 5
ii‘
42 THE FEDERAL CONSTITUTION. [BOOK I.
ment, if some political considerations had not been suggested as obsta-
cles. At the moment when the choice was to be made, the scene of
actual operations was in Massachusetts, where an army composed of
troops wholly raised by the New England colonies, and under the com-
Brand of General Ward, of that Province, was besieging the enemy in
Boston. This army was to be adopted by the Congress into the service
of the continent, and serious doubts were entertained by some of the
members of the Congress as to the policy of appointing a Southern
general to the command of it, and a good deal of delicacy was felt on
account of General Ward, who, it was thought, might consider him-
self injured by such' an appointment. On the other hand, there were
strong reasons for selecting a general-in-chief from Virginia. That
colony had taken the lead, amongthe Southern provinces, in the cause
of the continent, apd the appointment seemed to be due to her, if it was ~
to bemade upon political considerations. The motives for this policy
were deemed sufficient' to outweigh the Objections arising from the char-
acter and situation of the army which the general would, in the first
instance, have to command. But after all, it cannot be doubted, that
the preeminent qualifications of Washington had far more weight with
the majority of the Congress, than any dictates of mere policy, between
one part of the Union and another, or any local jealousies or sectional
ambition.
Mr. John Adams, whose recently published autobiography contains
some statements on this subject, speaks of the existence of a Southern
party against a Northern, and a jealousy against a New England
army under the command of a New England general, which, he says,
he discovered after the Congress had been some time in session, and
after the necessity of having an army and a general had become a
topic of conversation. (Works, II. 415.) In a letter, also, written
by Mr. Adams in 1822 to Timothy Pickering, he states that, on the
journey to Philadelphia, he and a party of his colleagues, the dele-
gates from Massachusetts to this Congress, were met at Frankfort by
Dr. Rush, Mr. Mifflin, Mr. Bayard, and others of the Philadelphia
patriots, who desired a conference with them; that, in this confer-
ence, the Philadelphia gentlemen strongly advised the Massachusetts
delegates not to come forward with bold measures, or to endeavor to take
the lead; and represented that Virginia was the most populous State in
the Union, proud of its ancient dominions, and that “ they [the Virgini-
ans] think they have a right to take the lead, and the Southern States,
and the Middle States, too, are too much disposed to yield it to them.”
“ I must confess,” says Mr. Adams, “ that there appeared so much
Ca. 11.] SECOND CONTINENTAL CONGRESS. 43
wisdom and good sense in this, that it made a deep impression on my
mind, and it had an equal effect on all my colleagues.” “ This con-
versation,” he continues, “ and the principles, facts, and motives sug-
gested in it, have given a color, complexion, and character to the whole
policy of the United States from that day to this. Without it, Mr.
Washington would never have commanded our armies; nor Mr. J efi‘er-
son have been the author of the Declaration of Independence; nor Mr.
Richard Henry Lee the mover of it; nor Mr. Chase the mover of foreign
connections. If I have ever had cause to repent of any part of this pol-
icy, that repentance ever has been and ever will be unaoaz'lz'ng. I had
forgot to say, nor had Mr. Johnson ever have been the nominator of
Washington for general.” (Works, II. 512, 513.)
Without impeaching the accuracy of Mr. Adams’s recollection, on the
score of his age when this letter was written, and without considering here
how or why Mr. J eiferson came to be the author of the Declaration of In-
dependence, it is believed that Mr. Adams states other facts, in his auto-
biography, suificient to show that motives of policy towards Virginia were
not the sole or the principal reasons why Washington was elected gen-
eral. ’ Mr. Adams states in his autobiography, that at the time when he
observed the professed jealousy of the South against a New England
army under the command of a Northern general, it was very visible to
him “that Colonel Washington was their object ”; “ and,” he adds, “ so
many of our stanchest men were in the plan, that we could carry noth-
ing without conceding it.” (Works, II. 415.) When Mr. Adams
came, as he afterwards did, to put himself at the head of this movement,
and to propose in Congress that the army at Cambridge should be
adopted, and that a general should be appointed, he referred directly to
Washington as the person whom he had in his mind, and spoke of him
as “ a gentleman from Virginia who was among us and very well known
to all of us, a gentleman whose skill and experience as an ofiicer, whose
independent fortune, great talents, and excellent universal character
would command the approbation of all America, and unite the cordial
exertions of all the colonies better than any other person in the Uniori.
Mr. Washington, who happened to sit near the door, as soon as he heard
me allude to him, from his usual modesty, darted into the library-room.”
(Works, II. 417.) It is quite clear, therefore, that Mr. Adams put the
appointment of Washington, in public, upon his qualifications and char-
acter, known all over the Union. He further states, that the subject
came under debate, and that nobody opposed the appointment of Wash-
ington on account of any personal objection to him; and- the only objec-
tion which he mentions as having been raised, was on the ground that the
army near Boston was all from New England, and that they had a gen-
44 THE FEDERAL CONSTITUTION. [BOOK 1.
eral of their own, with whom they were entirely satisfied. He mentions
one of the Virginia delegates, Mr. Pendleton, as concurring in this objec-
tion; that Mr. Sherman of Connecticut and Mr. Cushing of Massachu-
setts also concurred in it, and that Mr. Paine of Massachusetts expressed
strong personal friendship for General Ward, but gave no opinion upon
the question. Afterwards, he says, the subject being postponed to a
future day, “ pains were taken out of doors to obtain a unanimity, and
the voices were generally so clearly in favor of Washington, that the
dissentient members were persuaded to withdraw their opposition, and
Mr. Washington was nominated, I believe, by Mr. Thomas Johnson of
Maryland, unanimously elected, and the army adopted.” (Ibid.)
It is worth while to inquire, therefore, what were the controlling
reasons, which so easily and so soon produced this striking unanimity.
If it was brought about mainly by the exertions of a Southern against a
Northern party, and by the yielding of Northern men to the Virginians
from motives of policy, it would not have been accomplished with so
much facility, although even a Washington were the candidate of Vir-
ginia. Sectional jealousies and sectional parties inflame each other;
the struggles which they cause are protracted; and the real merits of men
and things are lost sight of in the passions which they arouse. If policy,
as a leading or a principal motive, gave to General Washington the great
body of the Northern votes, there would have been more dissentients
from that policy than any of the accounts authorize us to suppose there
were, at any moment, while the subject was under consideration. Nor
does ‘the previous conduct of Virginia warrant the belief, that her subse-
quent exertions in the cause of American liberty were mainly purchased
by the honors bestowed upon her great men, or by so much of precedence
as was yielded in the public councils to the unquestionable abilities of her
statesmen. Some of them had undoubtedly been in favor of measures of
conciliation to a late period; and some of them, as Washington, Patrick
Henry, and Richard Henry Lee, had been, from an early period, con-
vinced that the sword must decide the controversy. They were perhaps
as much divided upon this point, until the army at Boston was adopted,
as the leading men of other colonies. But when the necessity of that
measure became apparent, it was the peculiar happiness of Virginia to be
able to present to the country, as a general, a man whose character and
qualifications threw all local and political objects at once into the shade.
In order to form a correct judgment, at the present day, of the motives
which must have produced a unanimity so remarkable and so prompt, we
have only to recollect the previous history of Washington, as it was
known to the Congress, at the moment when he shrank from the mention
of his name in that assembly.
Cu. 11.] sECoNE CONTINENTAL CONGRESS. 45
He was forty-three years of age. From early youth, he had had
a training that eminently fitted him for the great part which he was
afterwards to play, and which unfolded the singular capacities of his
character to meet the extraordinary emergencies of the post to which
he was subsequently called. That training had been both in military
and in civil life. His military career had been one of much activ-
ity and responsibility, and had embraced several brilliant achieve-
ments. In 1751, it became necessary to put the militia of Virginia in a
condition to defend the frontiers against the French and the Indians.
The province was divided into military districts, in each of which an
adjutant-general, with the rank of major, was commissioned to drill and
inspect the militia. Washington, at the age of nineteen, received the
appointment to one of these districts; and in the following year, the
province was again divided into four grand military divisions, of which
the northern was assigned to him as adjutant-general. In 1753, the
' French crossed the lakes, to establish posts on the Ohio, and were joined
by the Indians. Major Washington was sent by the Governor of Vir-
ginia to warn them to retire. This expedition was one of difiiculty and
of delicacy. He crossed the Allegheny Mountains, reached the Ohio,
had interviews with the French commander and the Indians, and returned
to Williamsburg to make report to the Governor. Of this journey, full
of perilous adventures and narrow escapes, he kept a journal, which was
published by the Governor; was copied into most of the newspapers
of the other colonies; and was reprinted in London, as a document of
much importance, exhibiting the views and designs of the French. In
1754, he was appointed, with the rank of lieutenant-colonel, second in
command of the provincial troops raised by the Legislature to repel the
French invasion. On the first encounter with a party of thev enemy
under Jumonville, on the 28th of May, 1754, the chief command devolved
on Washington, in the absence of his superior. The French leader was
killed, and most of his party were taken prisoners. Washington com-
manded also at the battle of the Great Meadows, and received a vote of
thanks for his services from the House of Burgesses. This was in 1754,
when he was at the age of twenty-two. During the next year, in conse-
quence of the effect of some new arrangement of the provincial troops, he
was reduced from the rank of colonel to \that of captain, and thereupon re-
tired from the army, with the consolation that he had received the thanks
of his country for the services he had rendered. In 1755, he consented
to serve as aide-de-camp to General Braddock, who had arrived from
England with two regiments of regular troops. In this capacity he
served in the battle of the Monongahela with much distinction. The
46 THE FEDERAL CONSTITUTION. [BOOK I.
two other aids were wounded and disabled early in the action, and the
duty of distributing the General’s orders devolved wholly upon Wash-
ington. It was in this battle that he acquired with the Indians the repu-
tation of being under the special protection of the Great Spirit, because
he escaped the aim of many of their rifles, although two horses were shot
under him, and his dress was perforated by four bullets. His conduct on
this Occasion became known and celebrated throughout the country; and
when he retired to Mount Vernon, as he did soon after, at the age of
three-and-twenty, he not only carried with him a decisive reputation for
personal bravery, but he was known to have given advice to Braddock,
before the action, which all men saw, after it, would, if it had been duly
heeded, have prevented his defeat. But he was not allowed to remain
long in retirement. In August, 1755, he was appointed commander-in-
chief of all the provincial forces of Virginia, and immediately entered upon
the duties of reorganizing the old and raising new troops, in the course
of which he visited all the outposts along the header. Soon afterwards, _
a dispute about rank having arisen with a person who claimed to take
precedence of provincial oificers because he had formerly held the King’s
commission, it became necessary for Colonel Washington to make a visit
to Boston, in order to have the point decided by General Shirley, the
commander-in-chief of his Majesty’s armies in America. He commenced
his journey on the 4th of February, 1756, and passed through Philadel-
phia, New York, New London, Newport, and Providence, and visited
the Governors of Pennsylvania and New York. In all the principal
cities his character, and his remarkable escape at Braddock’s defeat, made
him the object of a strong public interest. At Boston, he was received
with marked distinction by General Shirley and by the whole society of
the town, and the question of rank was decided according to his wishes.
General Shirley explained to him the intended operations of the next
campaign; and, after an absence from Virginia of seven weeks, he re-
turned to resume his command. The next three years were spent in the
duties of this laborious and responsible position, the difiiculties and em-
barrassments of which bore a strong resemblance to those which he
afterwards had to encounter in the war of the Revolution. In 1758, he
commanded the Virginia troops in the expedition against Fort Du-
quesne, under General Forbes. Great deference was paid by that ofiicer
to his opinions and judgment, in arranging the line of march and order
of battle, on this important expedition; for the fate of Braddock was
before him. The command of the advanced division, consisting of one
thousand men, was assigned to him, with the temporary rank of briga-
dier. When the army had approached within fiftv miles of Fort Du-
on. 11.] SECOND CONTINENTAL CONGRESS. 47
quesne, the French deserted it; its surrender to the English closed the
campaign; and in December Washington resigned his commission, and
retired to Mount Vernon. What he had been, and what he then was, to
the Colony of Virginia, is shown by the Address presented to him by
the ofiicers of the provincial troops, on his retirement. “ In our earliest
infancy,” said they, “you took us under your tuition, trained us up in
the practice of that discipline which alone can constitute good troops,
from the punctual observance of which you never suffered the least devia-
tion. Your steady adherence to impartial justice, your quick discem—
m nt, and invariable regard to merit, wisely intended to inculcate those
genuine sentiments of true honor and passion for glory, from which the
greatest military achievements have been derived, first heightened our
natural emulation and our desire to excel. How much we improved by
those regulations and your own example, with what alacrity we have
hitherto discharged our duty, with what cheerfulness we have encoun-
tered the severest toils, especially while under your particular directions,
we submit to yourself, and flatter ourselves that we have in a great meas-
ure answered your expectations. . . . . . It gives us additional sorrow,
when we reflect, to find our unhappy country will receive a loss no less
irre'parable than our own. Where will it meet a man so experienced in
military affairs, one so renowned for patriotism, conduct, and courage’!
Who has so great a knowledge of the enemy we have to deal with’!
Who so well acquainted with their situation and strength’.l Who so
much respected by the soldier-y’! Who, in short, so able to support the
military character of Virginia’! Your approved love to your King and
country, and your uncommon perseverance in promoting the honor and
true interest of the service, convince us that the most cogent reasons
only could induce you to quit it; yet we, with the greatest deference,
presume to entreat you to suspend those thoughts for another year, and
to lead us on to assist in the glorious work of extirpating our enemies,
towards which so considerable advances have already been made. In
you we place the most implicit confidence. Your presence only will
cause a steady firmness and vigor to actuate every breast, despising the
greatest dangers, and thinking light of toils and hardships, while led on
by the man we know and love. But if we must be so unhappy as to
part, if the exigencies of your afl'airs force you to abandon us, we beg it
as our last request, that you will recommend some person most capable
to command, whose military knowledge, whose honor, whose conduct,
and whose disinterested principles we may depend on. Frankness, sin-
cerity, and a certain openness of soul, are the true characteristics of an
ofiicer, and we flatter ourselves that you do not think as capable of saying
48 THE FEDERAL CONSTITUTION. [BOOK I.
any thing contrary to the purest dictates of our minds. Fully persuaded
of this, we beg leave to assure you, that, as you have hitherto been the
actuating soul of our whole corps, we shall at all times pay the most
invariable regard to your will and pleasure, and shall be always happy
to demonstrate by our actions with how much respect and esteem we
are,” &c.
Washington’s marriage took place soon after his resignation (January
6th, 1759), and his civil life now commenced. He had been elected a
member of the House of Burgesses, before the close of the campaign,
and in the course of the winter he took his seat. Upon this occasion,
his inability, from confusion and modesty, to reply to a highly eulo-
gistic address made to him by the Speaker, Mr. Robinson, drew from
that gentleman the celebrated compliment, “ Sit down, Mr. Washing-
ton, your modesty equals your valor, and that surpasses the power of
any language that I possess.” He continued a member of the House
of Burgesses until the commencement of the Revolution, a period of fif-
teen years. He was not a frequent speaker; but his sound judgment,
quick perception, and firmness and sincerity of character, gave him an
influence which the habit of much speaking does not give, and which is
often denied to eloquence. As the time drew near, when the controver-
sies between the colonies and England began to assume a threatening
aspect, he was naturally found with Henry, Randolph, Lee, Wythe, and
Mason, and the other patriotic leaders of the colonies. His views con-
cerning the policy of the non-importation agreements were early formed
and made known. In 1769, he took charge of the Articles of Associa-
tion, drawn by Mr. Mason, which were intended to bring about a concert
.of action between all the colonies, for the purpose of presenting them to
the Assembly, of which Mr. Mason was not a member. In 1774, he
was chosen a member of the first Virginia Convention,'and was by that
body elected a delegate to the first Continental Congress, where he was
undoubtedly the most conspicuous person present. The second Virginia
Convention met in March, 1775, and reelected the former delegates tt
the second Continental Congress, from which Washington was removes
by his appointment as Commander-in-chief.
There can be no doubt, therefore, that Washington was chosen Com-
mander—in-chief for his unquestionable merits, and not as a compromise
between sectional interests and local jealousies.
(The authorities for the statements in this note concerning Washing-
ton’s history are the biographies by Marshall and Sparks, and the Writ-
ings of Washington, edited by the latter.)
\
CHAPTER III.
1776-1777.
CoNTINUANCE OF THE REVOLUTIONARY GOVERNMENT.-—DECLARATION
or INDEPENDENCE.——PREPARA.TIONS roe A NEW GOVERNMENT.—
FoRMATIoN OF THE CoNTINENTAL ARMY. ‘
ON the 7th of June, 1776, after the Congress had
in fact assumed and exercised sovereign powers with
the assent of the people of America, a resolution was
moved by Richard Henry Lee of Virginia, and sec-
onded by John Adams of Massachusetts, “That these
United Colonies are, and of right ought to be, free
and independent states; and that all political con-
nection between them and the state of Great Britain
is and ought to be totally suppressed.”1 This resolu
1 Richard Henry Lee, the mover
of this resolution, was born on the
20th of. June, 1732, at Stratford,
Westmoreland County, Virginia.
His earlier education was com;
pleted in England, whence he re-
turned in his nineteenth year.
Possessed of a good fortune, he
devoted himself to .public afiairs.
At the age "of twenty-five, he en-
tered , the House of Burgesses,
where he became a. distinguished
advocate of republican doctrines,
VOL. I. ~ '7
and a strenuous opponent of \ the
right claimed by Parliament to tax
the colonies, of the Stamp Act,
and of the other arbitrary meas-
ures of . the'home' government, co-
operating with Patrick Henry in
all his great patriotic efforts. He
was the author of ‘ the plan adopted
by the House of Burgcsses in
1773, for the formation of commit~
tees of correspondence, ‘to be .or
ganized by the colonial legisla-
tures, and out of which grew ‘the
b
50
[Boon I.
THE FEDERAL CONSTITUTION.
tion was referred to a committee of the whole, and
was debated until the 10th, when it was adopted in
committee. On the same day, a committee, consisting
of five members,1 was instructed to prepare a decla-
ration “that these United Colonies are, and of right
‘ought to be, free and independent states; that they
are absolved from all allegiance to the British crown;
and that all political connection between them and
the state of Great Britain is, and ought to be, dis-
solved.” The resolution introduced by Mr. Lee on
plan of the Continental Congress.
In 1774, he was elected one of
the delegates from Virginia to the
Congress, in which body, from
' his known ability as a political
writer and his services in the
popular cause, he was placed on
the committees to prepare the ad-
dresses to the King, to the Peo-
ple of Great Britain, and to the
People of the Colonies, the last of
which he wrote. In the second
Congress, he was selected to move
he resolution of Independence;
and besides serving on other very
important committees, he fur-
nished, as'chairman of the com-
mittee instructed to prepare them,
the commission and instructions to
General Washington. As mov-
er of the resolution of Indepen-
dence, he would, according to the
usual practice, have been made
chairman of the committee to pre-
pare the Declaration; but on the
10th of June, the day when the
subject was postponed, he was
obliged to leave Congress, and re-
turn home for a short time, on ac-
count of the illness of some mem-
ber of his family. He came back
to Congress and remained a mem-
ber until June, 1777, when he went
home on account of ill health. In
August, 1778, he was again elect
ed a member, and continued to
serve until 1780; but from feeble
health was compelled to take a
less active part than he had taken
in former years. He was out of
Congress from 1780 until 1784,
when he was elected its President,
but retired at the end of the year.
He was opposed to the Constitu-
tion of the United States, but voted
in Congress to submit it to the
people. After its adoption, he
was elected one of the first Sena—
tors under it from Virginia, and in
that capacity moved and carried
several amendments. In 1792, his
continued ill health obliged him to
retire from public life. He died
June 19, 1794.
1 Thomas Jefferson, .Iohn Ad-
ams, Benjamin Franklin, Roger
Sherman, and R. R. Livingston.
Ca. 111.] THE REVOLUTIONARY GOVERNMENT.
the 7th was postponed until the 1st of July, to give
time for greater unanimity among the members, and
to’ enable the people of the colonies to instruct and
influence their delegates.
The postponement was immediately followed by
proceedings in the colonies, in most of which the
delegates in Congress were either instructed or au-
thorized to vote for the resolution of Independence;
and on the 2d of July that resolution received the
assent in Congress of all the colonies, excepting
Pennsylvania and Delaware. The Declaration of
Independence was reported by the committee, who
had been instructed to prepare it, on the 28th of
June, and on the 4th of July it received the vote
of every colony, and was published to the world.1
This celebrated instrument, regarded as a legisla‘ .
tive proceeding, was the solemn enactment, by the
representatives of all the colonies, of a complete dis-
solution of their allegiance to the British crown. It
severed the pohtical connection between the people
of this country and the people of England, and at
once erected the different colonies into free and inde-
pendent states. The body by which this step was
taken constituted the actual government of the na-
tion, at the time, and its members had been directly
invested with competent legislative power to take
it, and had also been specially instructed to do so.
The consequences flowing from its adoption were,
that the local allegiance of the inhabitants of each
1 See note‘ at the end of the chapter.
Am ‘3
I‘ J \x‘ \ ‘i
52 THE FEDERAL CONSTITUTION. [13001: I.
colony became transferred and due to the colony
- itself, or, as it was expressed by the Congress, be-
came due to the laws of the colony, from which
they derived protection ;1 that the people of the
country became thenceforth the rightful sovereign of
the country; that they became united in a national
corporate capacity, as one people; that they could
thereafter enter into treaties and contract alliances
with foreign nations, could levy war and conclude
peace, ' and do all other acts pertaining to the exercise
of a national sovereignty; and finally, that, in their
national corporate capacity, they became known and
designated as the United States of America. This
Declaration was the first national state paper in
which these words were used ‘I as the style and title ‘ 1
of the nation. In the enacting part of the ~ instru-
ment, the Congress. styled themselves “the rep-
resentatives of the United States of America in
general Congress assembled”; and from that period,
the previously “United Colonies” have been known
as a political community, both within their own
borders and by the other nations of the world, by
' the title which they then assumed.2
1 On the 24th of June, 1776, the
Congress declared, by resolution,
that “ all persons abiding within
any of the United Colonies, and
deriving protection from the laws
of the same, ow; allegiance to
the said laws, and were members
of such colony; and that all per-
sons passing through or making a
temporary stay in any of the colo-
nies, being entitled to the protec-
tion of the laws, during the time
of such passage, visitation, or tem-
porary stay, owed, during the same,
allegiance thereto.” Journals, II.
216. a
2 The. title of “ The United
States of America ” was formally
assumed in the Articles of Con-
federation, when they came to be
Cu. 111.] THE REVOLUTIONARY GOVERNMENT. 53
On the same day on which the committee for
preparing the Declaration of Independence was ap-
pointed, another committee, consisting of one mem-
ber from each colony, was directed, “to prepare and
digest the form of a confederation to be entered into
between these colonies.” This committee reported
a draft of Articles of Confederation, /on the 12th of
July, which were debated in Congress on several
occasions between that day and the 20th of August '
of the same year, at which time a new draft was
reported, and ordered to be printed. The subject
was not‘ again resumed, until the 8th’ of April, 1777 ;
but, between that date and the 15th of the following
November, sundry amendments were discussed and
adopted, and the whole of the articles, as amended,
were printed for the use of the Congress and the
State Legislatures. On the 17th of November, a
circular letter was reported and adopted, to be ad-
dressed to the..Legislatures of the thirteen States, rec-
ommending to them “to invest the delegates of the
State with competent powers, ultimately, in the name
and behalf of the State, to subscribe Articles of Con
federation and Perpetual Union of the United States,‘
and to attend Congress for that purpose on or before
the 10th day of March next.”1
adopted. But it was in use, with- where the words “ United Colo- '
out formal enactment, from the nice ” had been used, the style I
date of the adoption of the Dec- should -be altegfl to the “ United
laration of Independence. On the States.” Journals, II. 349.
9th of September, 1776, it was 1 Journals, II. 263, 320; III.
ordered that in all continental com- 123, 502, 513.
missions and other instruments,
5} THE FEDERAL cousrrru'rron. [BOOK 1
A year and five months had thus elapsed, between
the agitation of the subject of a new form of national
government, and the adoption and recommendation
of a form, by the Congress, for the consideration of
the States.1 During this interval, the affairs of the
country were administered by the Revolutionary Con-
gress, which had been instituted, originally, for the
purpose of obtaining redress peaceably from the Brit-
ish ministry, but which afterwards became de facto
the government of the country, for all the purposes
of revolution and independence. In order to appre-
ciate the objects of the Confederation, the obstacles
which it had to encounter, and the mode in which
those obstacles were finally overcome, it is necessary
here to take a brief survey of the national afi'airs
during the period beginning with the commencement
of the war and the Declaration of Independence,
and extending to the date of the submission of the
Articles of Confederation to the State Legislatures.
From no point of view can so much instruction be
derived, as from the position in which Washington
stood, during this period. By following the fortunes
and appreciating the exertions of him who had been
charged with the great military duty of achieving the
liberties of the country, and especially by observing
his relations with the government that had under-
taken the war, we can best understand the fitness of
that government for the great task to which it had
been called. ‘
1 From June 11, 1776, to November 17, 1777.
CH. 111.] THE REVOLUTIONARY oovERNMENT. 55
The continental government, which commissioned
and sent General Washington to take the command
of the army which it had adopted, consisted solely
of a body of delegates, chosen to represent the peo-
ple of the several colonies or states, for certain pur-
poses of- national defence, safety, redress, and revolu-
tion. When the war had actually commenced, and
the United Colonies were engaged in waging it, the _ Congress possessed, theoretically and rightfully, large
political powers, ‘of a vague revolutionary nature; i
but practically, they had little direct civil power,
either legislative or executive. They were obliged to
rely almost wholly on the legislatures, provincial“
congresses and committees, or other local bodies of
the several colonies or states, to carry out their plans.
When Washington arrived at Cambridge and found -
the army then encamped around Boston in a state
requiring it to be entirely remodelled,'he came as the
general of a government which could do httle more
for him than recommend him to theProvincial Con-
gress, to the Committee of Safety, and to the promi-
nent citizens of Massachusetts Bay. The people of f
the United States, at the present day, surrounded by the apparatus of national power, can form some idea i
of Washington’s position, and of that of the govern-
ment which he served, from the fact that, when he
left Philadelphia to take the command of the army,
he requested the Massachusetts delegates to reconi- " ‘
mend to him bodies of men and respectable indie- .
viduals, to whom‘ he might apply, to get done, through voluntary coiiperation, what was absolutely ‘
56 THE FEDERAL CONSTITUTION. [BOOK _1.
essential to the existence of that army.1 In truth,
the) whole of his residence in Massachusetts during
the summer of 1775, and the winter of 1775-6,
until he saw the British fleet go down the harbor of
Boston, was filled with complicated difliculties, which
sprang from the nature of the revolutionary govern-
inent and the defects in its civil machinery, far more
than from any and all other causes. These difficul-
ties required the exertion of great intellectual and
physical energy, the application of consummate pru-
dence and forecast, and the patience and fortitude
which in him were so happily combined with power.
They would have broken down many of the greatest
generals ; whom the world has seen; but it is our
good fortune to be able to look back upon his
efforts to encounter them as among the more promi-
nent and striking manifestations of the strength of
Washington’s mind and character, and as among the
most valuable proofs of what we owe to him.
On the one side of him was the body of delegates, \
sitting at Philadelphia, by whom he had been
commissioned, who constituted the government of
America, and from whom every direction, order, or
requisition, concerning national affairs, necessarily
proceeded. On the other- side were the Provincial
Congresses, and other public bodies of the New
England colonies, on whom he and the Congress
were obliged to rely for the execution of their plans.
He was compelled to become the director of this
1 Sparks’s Washington, HI. 20, note.
CH. 111.] THE REVOLUTIONARY GOVERNMENT. 57
complicated‘ machinery. There were committees of the '
Congress, charged with the different branches of the
public service; but General Washington was obliged
to attend personally to every detail, and to suggest,
to urge, and to entreat action upon all the subjects
that concerned the army and the campaign. His
letters, addressed to the President of Congress, were
read in that body, and votes or resolutions were
passed to give effect to his requests or recommenda-
tions. But this was not enough. Having obtained
the proper Order or requisition, he was next obliged
to see that ‘it was executed by the local bodies or
magistrates, with whom he not infrequently was
forced to discuss the whole subject anew. He met
with great ‘readiness of attention, and every dis-
position to make things personally convenient and ~
agreeable to him; but he found, as he has recorded,
a vital and inherent principle of delay, incompati-
ble with military service, in the necessity he was
under to transact business through such numerous
and different channels.1 His applications to the
Governor of Connecticut for hunting-shirts for the
army; 2 to the Governor of Rhode Island for pow-
der ;3 to the Massachusetts Provincial Congress to
apprehend deserters and to furnish supplies ;* and
to the‘ New York Provincial. Congress to prevent
their citizens~ from trading with the enemy in Bose
ton,6 -—- together with the earnest appeals which. he
was obliged make on» these and many ‘other: subs‘
1 Works, III. 20. 3 ‘Ibid. 47. 5 Ibid. 56.
2 Ibid. 46. - "4 Ibid. 55.
von. 1. < 8
58 THE FEDERAL CONSTITUTION.
[Boon 1
-‘
jects, which should never have been permitted to
embarrass him, — show how feeble were the powers
and how defective was the machinery of the govern-
ment which he served.
But there are two or three topics which it will be
necessary to examine more particularly, in order fully
to understand the character and working of the revo-
lutionary government. The first of these is the for-
mation of the army.
In order to carry on a war of any duration, it is
the settled result of all experience, that the soldier
should be bound to serve for a period long enough
to insure discipline and skill, and should be under
‘ the influence of motives which look to substantial
pecuniary rewards, as well as those founded on pa-
triotism. According to Washington’s experience, this
is as true of officers as it is of common soldiers ; and
undoubtedly no army can be formed, and kept long
enough in the field to be relied upon for the accom-
plishment of great purposes, if these maxims are neg-
lected in its organization.
Unfortunately, the Revolutionary Congress, at the
very commencement of the war, committed the se-
rious error of enlisting / soldiers for short periods.
When Washington arrived at Cambridge, the army
which the Congress had just adopted as the conti-
nental establishment consisted of certain regiments,
raised on the spur of the moment by the provinces
of Massachusetts, New Hampshire, Rhode Island,
and Connecticut; acting under their respective ofii-
cers; regulated by their own militia laws; and, with
Cu. 111.] THE REVOLUTIONARY GOVERNMENT. 59
’ colonies.
the exception of those from Massachusetts, under
no legal obligation to obey the general then in
command. The terms of service of most of these
men would expire in the autumn; and as they had
enlisted under their local governments for a special
object, and had‘ not been in service long enough to
have merged their habits of thinking and feeling,
as New England citizens, in the character of sol-
diers, they denied the power of their own govern-
ments or of the Congress to transfer them into
another service, or to retain them after their enlist-
ments had expired.1 The army was therefore to
be entirely remodelled; or, to speak more correctly,
an army was to be formed, by making enlistments
under the Articles of War which had been adopted
by the Congress, and by organizing new regiments/
and brigades under officers holding continental com-
missions. But the greatest difficulties had to be
encountered in this undertaking. The continental
Articles of War required a longer term of service
than any of these troops had originally engaged for,
and the rules and regulations were far more stringent
than the discipline to which they had hitherto been
subjected. There was, moreover, great reluctance,
on the part of both oflicers and men, to serve in
regiments consisting of the inhabitants of different
A Connecticut captain would not serve
under a Massachusetts colonel; a Massachusetts colo-
1 Letters of General Washing- 93); October 30,1775(Ibid.137);
ton to the President of Congress, November 8, 1775 (Ibid. 146).
September 21, 1775 (Works, III.
WM’:— -
60 , THE FEDERAL CONSTITUTION. [Boon I.
nel was unwilling to command Rhode Island men ;
and the men were equally indisposed to serve under
oificers fi~om another colony, or under any officers,
in fact, but those of their own choosing.1 '
In this state of things, a committee, consisting of
Dr. Franklin, Mr. Lynch, and Colonel Harrison, was
sent by the Congress to confer with General Wash-
ington and with the local governments of the New
England colonies, on the most effectual method of _
continuing, supporting, and regulating a continental
army.2 This committee arrived at Cambridge on the
18th of October, and sat until the 241th.8 ‘They ren-
dered very important services to the commander-in?-
chief, in the organization of the army; but in form-
ing this first military establishment of the Union,
the strange error was committed by the Congress, of
enlisting the men for .the term of one year only,
if not sooner discharged ;—a capital mistake, the
consequences of which were severely felt throughout
the whole war.
There is no reason to suppose that General -Wash-
ington concurred in the expediency of such- short
enlistments, then or at any other time; but he was
obliged to yield to the pressure of the causes to
which the mistake is fairly to be attributed. In
fact, we find him, in a short time after the new sys-
1 Letters of General Washing- ernor Cooke of Connecticut, De-
ton to Joseph Reed, November 8, cember 5, 1775 (Ibid. 188).
1775 (Works, III. 150); Novem- 9 Journals of Congress, II. 208,
her 28, 1775 (Ibid. 177) ; and to September 29, L775. _
the President of Congress, Decem- 3 Writings ofWashington, III.
her 4, 1775 (Ibid. 184); to Gov-4 123,note. , V a
on. 111.; THE REVOLUTIONARY GOVERNMENT. 61
I
tem had been put into operation, pointing it out as a
fatal error, in a letter to the President of Congress.1
The error may have been owing to the character of
‘the government, to the opinions and prejudices pre-
vailing in Congress, and to the delusive idea, which
still lingered in the minds of many of the members,
that, although the sword had been drawn, the scab-
bard was ‘not wholly thrown aside, and that they
should be able to coerce the British ministry into a
redress of grievances, which might be followed by a
restoration of the relations between the colonies and
the mother country, upon a constitutional basis. N 0
such idea was entertained by Washington, from the
beginning. He entertained no thought of accommo-
dation, after the measures adopted in consequence
of the battle of Bunker’s Hill.
But at the time of which we are treating, the issue
had not been made, as Washington would have made
it; and, when we consider the state of things before
the Declaration of Independence was’ adopted, and
look attentively at the objects for which the .Con-
gress had been assembled, and at the nature of their
powers, we may perceive how they came to make the
‘ mistake of not organizing a military establishment
on a more permanent footing.
The delegates to the first Congress were, as we
have seen, sent with instructions, which were sub-
stantially the same in all the colonies. These in-
structions, in some instances, looked to “a redress
1 February 9, 1776 (Works, III. 278).
/
62 THE FEDERAL cousrrrurron. [BOOK 1.
\
of grievances,” and in others, to “the recovery and
establishment of the just rights and liberties of the
colonies”; and the delegates were directed “ to delib-
erate upon wise and proper measures, to be by them Q
. recommended to all the colonies,” for the attainment
of these objects. But with this was coupled the
declared object of a “restoration of union and har-
mony” upon “ constitutional principles.” We have
seen how far this body proceeded towards a revo-
lution. The second, orWItevoluti‘onbarLQgpgQss, was
composed of delegates who were originally assembled
under similar instructions; but the conflict of arms
that had already taken place, between the times of
their respective appointments and the date of their
meeting, had materially changed the posture of af
fairs. Powers of a revolutionary nature had been
cast upon them, by the force of circumstances; and
when they finally resolved to take the field, the
character of those powers, as understood and acted
upon by themselves, is illustrated by the commission
which they issued to their General-in-chief, which
embraced in its scope the whole vast object of “the
defence of American liberty, and the repelling every
I hostile invasion thereof,” by force of arms, and “by
the rules and discipline of war, as herewith given.”
\ It is obvious, therefore, that, at the time when the
first continental army was to be formed, the powers
' of the national government were very broad, al-
though vague and uncertain. There seems to have
been no reason, upon principle, why they should not
have adopted decrees, to be executed by their own
011.111.] THE REVOLUTIONARY GOVERNMENT. 63
immediate agents, and by their own direct force.
But a practical difficulty embarrassed and almost
annulled this theoretical and rightful power. The
government of the Congress rested onlflngnlefinite,
legiytive fagulty. ‘ When they came to a resolution,
or ,vote, it constituted only a voluntary compact, to
which the people of each colony pledged themselves,
by their delegates, as to a treaty, but which depended
for its observance entirely on the patriotism and
good faith of the colony itself. No means existed of
compelling obedience from a delinquent colony, and
the government was not one which could operate
directly upon individuals, unless it assumed the
full exercise of powers derived from the revolution-
ary objects at which it aimed. These powers were
not assumed and exercised to ‘their full extent, for
reasons peculiar to the situation of the country, "and
to the character, habits, and feelings of the people.
The people of the colonies had indeed sent their
delegates to a Congress, to consult and determine
upon the measures necessary to be adopted, in order
to assert and maintain their rights. But they had
never been accustomed to any machinery of govern-
ment, or legislation, other than that existing in their
Own separate jurisdictions. They had imparted to
the Congress no proper legislat/iyeapthwndmno;
civil powers, except those of a revolutionary charac-
ter;
laws, or control over individuals; and the union of
the colonies, so far as a union had taken place, was
This revolutionary government “was therefdfé“
entirely without civil executive officers, fundamental,
2m
.g
3”" .
64 THE FEDERAL CONSTITUTION. [Boon 1.
w " ~ .r‘-.. ./‘""'
‘one from which any colony could withdraw at‘ any
time, without violating any legal obligation. .
In addition to this, the popular feeling on the
subject of the grievances existing, and of the meas-
ures that ought to be taken for redress, was quite
different in the difi'erent colonies, before the ‘Declara—
tion of Independence was adopted. The leading
patriotic or colonies made qommon cause with
each other, with great spirit and energy, and the
more lukewarm followed, but with unequal steps.1
Virginia had, upon the whole, less to complain
of than Massachusetts; but she adopted the Whole
quarrel of her Northern sister, with the firmness of
her Washington and the ardor of her Henry. New
York, on the other hand, for a considerable period,
and down to the month of January, 1775, stood
nearly divided between the Whigs and the Tories,
and did not choose its delegates to the second Con-
gress until the 20th of April, —- twenty days only
before that body assembled.2 '
1 Mr. Jefferson once said to my
kinsman, Mr. George Ticknor, that
when they had any doubtful and
difiicult measure to carry in this
Congress, they counted the four
New England colonies, and Vir-
ginia, as sure ; and then they looked
round to see where they could get
two more, to make the needful ma-
jority.
9 The General Assembly of New
York met on the 10th of January,
1775, and by a small majority re-
fused to approve of the non-importa—
tion associationv formed by the first
Congress, and also declined to ap-
point delegates to the second Con-
gress, which was to assemble in
May. They adopted, however, a
list of grievances, which was sub-
stantially the same with that which
had been put forth by the first
Congress. Towards the close of
the session, in the absence of some
of the patriotic members, petitions
to the King and to Parliament were
adopted, which differed somewhat
from the principles contained in
a
on. 111.] THE REVOLUTIONARY GOVERNMENT. 65
One of the most striking illustrations, both of the
character of the revolutionary government and of
the state of the country, is presented by the proceed-
ings respecting the Loyalists, or, as they were called,
the Tories. This is not the place to consider whether
the ‘American Loyalists were right or wrong in ad-
hering to the crown. Ample justice is likely to be
done, in American history, to the characters and mo-
tives of those among them whose characters and
motives were pure. From a sense of duty, or from
cupidity, or firom some motive, good or bad, they
made their election to adhere to the public enemy;
and they were, therefore, rightfully classed, accord-
ing to their personal activity and ‘importance, among
the enemies of the country, by those whose business
it was to conduct its affairs and to fight its battles.
General Washington was, at a very early period, of
opinion, that the most decisive steps ought to be
taken with these persons; and he seems at first to
have acted as if it belonged, as in fact it did properly
belong, to the commander' of the continental forces
to determine when and how they should be arrested.
He first had occasion to act upon the subject in
November, 17 7 5, when he sent Colonel Palfrey, one
their list of grievances, and in
which they disapproved “ of the
violent measures that had been
pursued in some of the colonies.”
But the people of. New York gen-
erally conformed to the non-impor-
tation agreement; and on the 20th
of April they met in convention
voL. I. 9
and appointed delegates to the sec-
ond Congress, “ to concert and
determine upon such matters as
shall be judged most advisable for
the preservation and reestablish-
ment of American rights andlpi-ivi-
leges.” Pitkin’s History of the
United States, I. 324.
66 THE FEDERAL cous'rrru'rrou. [3001: I.
of his aids, into New Hampshire, with orders to
seize every oflicer of the royal government, who had
given proofs of an unfriendly disposition to the
American cause, and when he had secured them, to
take the opinion of the Provincial Congress, or Com-
mittee of Safety, in what manner to dispose of them
in that Province.1
Early in the month of January, 177 6, General
Washington was led to suppose that the enemy were
about to send from Boston a secret expedition by
water, for the‘ purpose of taking possession of the
city of New York ; ‘ and it was believed that a body
of Tories on Long Island, where they were numer-
ous, were about rising, to oin the enemy’s forces on
their arrival. While Washington was deliberating
whether he should be warranted in sending an expe-
dition to check this movement and to prevent the
city from falling into the hands of the enemy, with-
out first applying to Congress for a special authority,
he received a letter from Maj or-General Charles Lee,
offering to go into Connecticut, to raise volunteers,
and to march to the neighborhood of New York, for
the purpose of securing v“the city and suppressing the
anticipated insurrection of Hie‘ Tories.2 He was in-
1 “I do not mean,” the orders
continued, “that they should be
kept in close confinement. Ifeither
of these bodies should incline to
send them to any interior towns,
upon their parole not to leave them
until they are released, it will meet
with my concurrence. For the
.present, I shall avoid giving you
the like order in respect to the
Tories in Portsmouth; but the day
is not far off, when they will meet
with this, or a worse fate, if there
is not a considerable reformation
in their conduct.” Writings of
Washington, III. 158, 159.
9 Writings of Washington, III.
230, note.‘
on. 111.] THE REvOLUTIONARY GOVERNMENT. 67
clined to adopt Lee’s suggestion, but doubted whether
he had power to disarm the people of an entire dis
trict, as a military measure, without the action of the
civil authority of the Province. Upon this point, he
consulted Mr. John Adams, who was then attending
the Provincial Congress of Massachusetts. Mr. Adams
gave it, unhesitatingly, as his' clear opinion, that the
commission of the Commander-in-chief extended to
the objects proposed in General Lee’s letter; and he
reminded General Washington, that it vested in him
full power and authority to act as he should think
for the good and welfare of the service.1 Lee was
thereupon authorized to raise volunteers and to pro—
ceed to the city of New York, which he was in-
structed to prevent from falling into the hands of the
enemy, by putting it into the best posture of defence
and by disarming all persons upon Long Island and’
elsewhere, (and, if necessary, -by otherwise securl
ing them,) whose conduct and declarations had ren- '.
dered them justly suspected of designs unfriendly to
the views of the Congress? At the same time, Gen-
eral Washington wrote to the Committee of Safety
of New York, informing them of the instructions
which he had given to General Lee, and requesting
their assistance; but without placing Lee under
1 their authority.8
It happened, that at this time, while Washington
1 Writings of Washington, III. 2 Writings of Washington, III
230, note. See also Marshall’s ‘ 230. A -
Life of Washington, II. 285-287. 3 Ibid., note. '
68 THE FEDERAL CONSTITUTION. [Boox'L
was considering the expediency of sending this ex-
pedition, the Congress had under consideration the
subject of disarming the Tories in Queen’s County,
Long Island, where the people had refused to elect
members to the Provincial Convention.1 Two bat-
i/talions of minute-men had been ordered to enter that
county, at its opposite sides, on the same day, and
to disarm every inhabitant who had voted against
choosing members to the Convention? A part of
these orders were suddenly countermanded, and in
1 Journals of Congress, II. 7-9.
January 3, 1776. Congress had,
on the 2d of January, passed re-
solves, recommending to the differ-
ent assemblies, conventions, and
committees or councils of safety,
to restrain the Tories, and had de—
clared that they ought to be dis-
armed, and the more dangerous of
them kept in custody. For this
purpose, the aid of the continental
troops stationed in or near the re-
spective colonies was tendered to
the ‘local authorities. Journals,
II. 4, 5.
2 The resolves of the Congress
on this subject amounted to an out-
lawry of the persons against whom
they were directed. They were
introduced by a preamble, reciting
the disafi‘ection of a majority of the
inhabitants of Queen’s County,
evinced by their refusal to elect
deputies to the convention of the
colony, by their public declaration
of a design to remain inactive spec-
tators of the contest, and their gen-
eral want of public spirit; and de-
claring, that “ those who refuse to
defend their country should be ex-
cluded from its protection, and pre-
vented from doing it injury.” The
first resolve then proceeded to de-
clare that all the inhabitants of
Queen’s County named in a list
of delinquents published by the
Convention of New York he put
out of the protection of the United
Colonies, that all trade and inter-
course with them cease, and that
no inhabitant of that county be
permitted to travel or abide in any
part of the United Colonies, out
of that county, without a certificate
from the Convention or Committee
of Safety of New York, setting
forth that such inhabitant is a
friend to the American cause, and
not of the number of those who
voted against sending deputies to
the Convention; and that any in-
habitant found out of the county,
without such certificate, be ap-
prehended and imprisoned three
months. The second resolve de-
clared that any attorney or lawyer
CH. 111.] THE REVOLUTIONARY GOVERNMENT.
place of the minute-men from Connecticut, three
companies were ordered to be detailed for this ser-
vice from the command of Lord Stirling. This
change in the Original plan was made on the 10th
of January; and when Washington received notice
of it from Lee, he seems to have understood it
as an abandonment of the whole scheme of the
expedition, - a course which he deeply regretted.1
He thought, that the period had arrived. when
nothing less than the most decisive measures ought
to be pursued; that the enemies of the country
who should commence, prosecute, and were reported by a committee '1
or defend any action at law, for
any inhabitant of Queen’s County
who voted against sending depu-
ties to the Convention, ought to be \
treated as an enemy to the Ameri-
can cause. The fourth resolve
directed that Colonel Nathaniel
Heard, of Woodbridge, N. J .,
should march, with five or six hun-
dred minute-men, to the western
part of Queen’s County, and that
Colonel Waterbury, of Stamford,
Connecticut, with the same num-
ber of minute-men, march to the
eastern side; that they confer to-
gether and endeavor to enter the
county on the same day, and that
they proceed to disarm every per-
son in the county who voted against
sending deputies 'to the Convention,
and cause them to deliver up their
arms and ammunition on oath, and
confine in safe custody, until further
orders, all those who should refuse
compliance. These resolves were
passed on the 3d of January, 1776,
on the state of New York. On
the 10th of January, on account of
“ the great distance from Colonel
Heard to Colonel Waterbury, and
the difliculty of cooperating with
each other in their expedition into
Queen’s County,” Congress di-'
rected Lord Stirling to furnish
Colonel Heard with three com-
panies from his command, who
were to join Colonel Heard with
his minute-men, and proceed imme-
diately on the expedition; and also
dii'ected Heard to inform Water-
bury that his services would not be
required. Journals, II. 21.
1 He received this impression
from General Lee, who wrote on
the 16th of January and informed
him that Colonel Waterbury had
“ received orders to disband his
regiment, and the Tories are to
remain unmolested till they ‘are
joined by the King’s assassins.”
Sparks’s Life of Gouverneur Moi-
ris, I. 75.
70 THE FEDERAL CONSTITUTION. [Boox 1.
were sufficiently numerous on the other side of the
Atlantic, and that it was highly important to have
as few internal ones as possible. But supposing
that Congress had changed their determination, he
directed Lee to disband his troops so soon as circum-
stances would in his judgment admit of it.1 Lee was.
at this time at Stamford in Connecticut, with a body
of about twelve hundred men, whom he had raised
in that colony, preparing to march to New York to
execute the different purposes for which he had been
detached. On the 22d of January, - the day before
the date of General Washington’s letter to him di-
‘ recting him to disband‘ his forces, —— he had written
to the President of Congress, urging in the strongest
terms the expediency of seizing and disarming the
Tories ;2 and he immediately communicated to Wash-
ington the fact of his having done so. Washington
wrote again on the 30th, informing Lee that General
Clinton had gone from Boston on some expedition
with four or five hundred men; that there was rea-
son to believe that this expedition had been sent
on the application of Tryon, the royal Governor of
New York, who, with a large body of the inhab-
itants, would probably oin it; ' and that the Tories
ought, therefore, to be disarmed at once, and the
principal persons among them seized. He also ex-
pressed the hope that Congress would empower Gen-
eral Lee to act conformably to both their wishes; but
1 Letter to General Lee, Janu- 2 Marshall’s Life of Washing-
ary 23, 1776. _ Writings of Wash- ton, II., Appendix, xvii.
ington, III. 255. '
011. 111.] THE REVOLUTIONARY GOVERNMENT. 71
that, if they should order differently, their directions
must be obeyed.1
General ‘Washington was mistaken in supposing
that Congress had resolved to abandon the expedi-
_ tion against the Tories of Queen’s County. That
expedition had actually penetrated the county, under
Colonel Heard, who had arrested nineteen of the
principal inhabitants and conducted them to Phila-
delphia. Congress directed them to be sent to New
York, and delivered to the order of the Convention
of that Colony, until an1inquiry could be instituted
by the Convention into their conduct, and a report‘
thereon made to Congress?
This destination of the prisoners had become ne-
cessary, in consequence of the local fears and jealous-X
ies excited by the approach of General Lee to the city \
of New York, at the head of a force designed to pre-
vent it from falling into the possession of the enemy.
The inhabitants of the city were not a httle alarmed
at the 'idea of its becoming a post to be contended
for; and the Committee of Safety wrote to General
Lee earnestly deprecating his approach.3 Lee re-
plied to them, and continued his march, inclosin g
their letter to Congress. It was received in that
body on the 26th, and a committee of three members
was immediately appointed to repair to New York,
to consult and advise with the Council of Safety of
1 Letter to General Lee, J anu- 3 Sparks’s Life of Gouverneur
ary 31, 1776. Writings of Wash- Morris, I. 75, 76. They wished
ington, III. 275. to “ save appearances with the [ene-
2 February 6, 1776. Journalsk my’s] ships of war, til] at least the .
II. 51. month of March.”
#7’
72 THE FEDERAL CONSTITUTION. [Boon I.
the Colony, and with General Lee, respecting the
defence of the city.1 The Provincial Congress of
New York were in session at the time of the arrival
of this committee,2 and, in consequence of the temper
existing in that body and in the local committees,
the Continental Congress found themselves obliged
to recede from the course which they had taken of
disarming the Tories of Queen’s County by their own
action, and to submit the whole subject again to the
colonial authorities everywhere, by a mere recommen-
dation to them to disarm all persons, within their
respective limits, notoriously disaffected to the Amer-
ican cause.3 ‘
Thus, after having resolved on the performance
of a high act of sovereignty, which was entirely
within the true scope of their own powers, and emi-
nently necessary, the Congress was obliged to con-
tent itself with a recommendation on the subject to
the colonial authorities; not only because it felt itself,
as a government, far from secure of the popular co-
operation in many parts of the country, but because
it had not finally severed the political tie which had
bound the country to the crown of Great Britain,
and because it had no civil machinery of its own,
through which its operations could be conducted.
Another topic, which illustrates the character of
the early revolutionary government, is the entire
absence, at the period now under consideration, of a
1 January 26, 1776. Journals, 3 March 14, 1776. Journals,
. II. 39. II. 91.
9 January 30.
Cu. 111.] THE REVOLUTIONARY GOVERNMENT. 7 3
proper national tribunal for the determination of
questions of Prize; - a want which gave General
Washington great trouble and embarrassment, dur-
ing his residence at Cambridge and for some time
afterwards. As this subject is connected with the
origin of the American Navy, a brief account may
here be given of the commencement of naval opera
tions by the United Colonies.
When General Washington arrived at Cambridge,
no steps had been taken by the Continental Congress
towards the employment of any naval force what-
ever. In June, 17 '75, two small schooners had been
fitted out by Rhode Island, to protect the waters of
that Colony from the depredations of the enemy;
and in the same month, the Provincial Congress. of
Massachusetts resolved to provide six armed vessels;
but none of . them were ready in the month of
October.1 In the early part of that month, the first
movement was . made by the Continental Congress
towards the employment of any naval force. Gen-
eral Washington was then directed to fit out two
armed vessels, with all possible despatch, to sail for
the mouth of the St. Lawrence, in order to intercept
certain ships from England bound . to Quebec with ‘
powder and stores. He was to procure these vessels
from the government of Massachusetts.2 The au-
thorities of Massachusetts had then made no such
1 Letter of General Washington 1775. Journals of Congress, 11
to the President of Congress. 7 I 197. l
9 Resolve passed October 5,
. Von. I. 10
74 THE FEDERAL CONSTITUTION.
[BOOK 1.
provision; but in the latter part of August, General
Washington had, on the broad authority of his com-
mission, proceeded to fit out six armed schooners, to
cruise in the waters of Massachusetts Bay, so as to
intercept the enemy’s supplies coming into the port
of Boston. One of them sailed in September, and
in the course of a few weeks they were all cruis-
ing between Cape Ann and Cape Cod.1
On the 17th of September, 177 5, the town of Fal-
mouth in Massachusetts (now Portland in Maine)
was burnt by the enemy. This act stimulated the
Continental Congress to order the fitting out of two
armed vessels on the 26th of October, and of two
1 These vessels were fitted out
from the ports of Salem, Beverly,
Marblehead, and Plymouth. They
were oflicered and manned chiefly
by sea-captains and sailors who
happened to he at that time in the
army. They sailed under instruc-
tions from General Washington,
to take and seize all vessels in
the ministerial service, bound into
or out of Boston, having soldiers,
arms and ammunition, or provis-
ions on board, and to send them
into the nearest port, under a care-
ful prize-master, to wait his further
directions. The first person com-
missioned in this way by the Com-
mander-in-chief was Captain N ich-
olas Broughton of Marblehead,
who sailed in the schooner Han-
nah, fitted out at Beverly; and in
his instructions he was described
as “ a captain in the army of the
United Colonies of North Ameri-
ca,” and was directed to take the
command of “ a detachment of said
army, and proceed on board the
schooner Hannah, lately fitted out,
Sac. at the continental expense.”
Another of these vessels, called the
Lee, was commanded by Captain
John Manly. The names of three
others of them were the Harrison,
the Washington, and the Lynch.
The name of the sixth vessel is not
known, but the names of the four
other captains were Selman, Mar-
tindale, Coit, and Adams. (Writ-
ings of Washington, III. 516.)
When Washington received direc-
tions from the President of Con-
gress to send two vessels to the
mouth of the St. Lawrence, he
wrote, on the 12th of October, that
one of these vessels was then out,
and that two of them would be de
spatched as directed, immediately
(Ibid., HI. 124.) In the course of
a few weeks, they were all out.
I
CH- 111.] THE REVOLUTIONARY GOVERNMENT. '75
others, on the 30th. It also stimulated the Massa-
chusetts Assembly to issue letters of marque and
reprisal, and to pass an act establishing a court to
try and condemn all captures made from the en-
emy, by the privateers and armed vessels of that
Colony. 1 '
In the autumn of this year, therefore, there were
two classes of armed vessels cruising in the waters
‘ of Massachusetts: one consisting of those sailing
under the continental authority, and the other con-
sisting of those sailing under the authority of the
Massachusetts Assembly. Captures were made by
each, and some of those sailing under the continen-
tal authority were quite successful. Captain Manly,
commanding the Lee, took, in the latter part of
November, a valuable prize, with a large cargo of
arms, ammunition, and military tools; and several
other captures followed before any provision had v
been made for their condemnation, —— a business
which was thus thrown entirely upon the ‘hands of
General Washington.
The court established by the Legislature of Massa-
chusetts, at its session in the autumn of 1775, for
the trial and condemnation of all captures from the
enemy, was enabled to take cognizance only of cap-
tures made by vessels fitted out by the Province, or
by citizens of the Province. As the cruisers fitted out
at the continental expense did not come under this
law, General Washington early in November called
the attention of Congress to the necessity of estab-
lishing a court for the trial of prizes made by con-
76 THE FEDERAL CONSTITUTION. [BOOK I
tinental authority.1 On the 25th of N ovember, the
Congress passed resolves ordering all trials of prizes
to be held in the court of the colony into which
they should be brought, with a right of appeal to
Congress? But these resolves do not seem to have
been, for a considerable period of time, communi-
cated to General Washington ; for, during the
months of November, December, and January, he
supposed it to be necessary for him to attend per-
sonally to the adjudication of prizes made by con-
tinental vessels,3 and it was not until the early part
of February that the receipt of the resolves of Con-
gress led to a resort to the jurisdiction of the ad-
miralty court of Massachusetts. When, however,
this was done, an irreconcilable difference was found
to exist between the resolves of Congress and the
law of the Colony respecting the proceedings; the
trials were stopped for a long time, to enable the
General Court of Massachusetts to alter their law,
so as to make it conform to the resolves ; and in
' ings of \Vashington, III. 154.
1 Letter to the President of Con-
gress, November 11, 1775. VVrit-
relative to captures; saying, “ You
cannot conceive how I am plagued
on this head, and how impossible
2 Journals, I. 260.
3 On the 4th of December, he
repeated his former rccommenda~
tion to the President of Congress.
(\Vritings of Washington, III.
184.) On the 26th of December,
he wrote to Richard Henry Lee,
in Congress, begging him to use
his influence in having a court of
admiralty or some power appointed
to hear and determine all matters
it is for me to hear and determine
upon matters of this sort, when the
facts, perhaps, are only to be as-
certained at ports forty, fifty, or
more miles distant, without bring-
ing the parties here [Cambridge]
at great trouble and expense. At
any rate, my time will not allow
me to be a competent judge of this
business.” Ibid., III. 217.
Ca. 111.] THE REVOLUTIONARY GOVERNMENT. '77
the mean while, many of the captors, .weary of the
law’s delay, applied, without waiting for the decis-
ions, for leave to go away, which General Washing-
ton granted.1 As late as the 25th of April, 1776,
there had been no trials of any of the prizes brought
into Massachusetts Bay. At that date, General
Washington wrote to the President of Congress,
from New York, that some of the Vessels which he
had fitted out were laid up, the crews being dissatis-
fied because they could not obtain their prize-money;
that he had appealed to the Congress on the subject;
and that, if a summary way of proceeding were‘ not
resolved on, it would be impossible to have the con-
tinental vessels manned. At this time Captain Manly
and his crew~ had not received their share of the val
uable prize taken by them in the autumn previous.2
Another remarkable defect ’ in the revolutionary
government was found in the mode in which it un-
dertook to supply the means of defraying the public
. expenses. It was a government entirely without rev-
enues of any kind; for, in constituting the Congress,
the colonies had not clothed their delegates with
power to lay taxes, or to establish imposts. At the
time when hostilities were actually commenced, the
commerce of ‘the; country was almost totally annihi.
lated; sothat if the ‘Congress had possessed pow-
or to derive a revenue from commerce, little could-
1 Letter to‘ the President [of Con; February 16, 1776'. Ibid., gress,‘ February 9, 1776. Ibid., 284. ' p - '
III. 282. Letter to Joseph Reed, 9 Ibid., H1. 370.
7 8 THE FEDERAL CONSTITUTION. [BOOK 1.
have been obtained for a long period after the com
mencement of the war. But the power did not ex-
ist; money in any considerable quantity could not
be borrowed at home; the expedient of foreign loans
had not been suggested; and consequently the only
remaining expedient to which the Congress could
resort was, like other governments similarly situated,
to issue paper money. The mode in which this was
undertaken to be done was, in the first instance, to
issue two millions of Spanish milled dollars, in the
form of bills, of various denominations, from one
dollar to eight dollars each, and a few of twenty
dollars, designed for circulation as currency. The
whole number of bills which made up the sum
of $2,000,000 was 403,800.1 The next emission
amounted to $1,000,000, in bills of thirty dollars
each, and was ordered on the 25th of J uly.2 When
the bills of the first emission were prepared, it would
seem to have been the practice to have them signed
by a committee of the members ; but this was found
so inconvenient, from the length of time during
which it withdrew the members from the other busi-
ness of Congress, that, when the second emission
CONTINENTAL CURRENcY.
No. Dollars.
This Bill entitles the Bearer to
1 This was the emission or-
dered on the 23d of June, 1775.
There were forty-nine thousand
bills of each denomination from’
one dollar to eight’ dollars, inclu-
sive, and eleven thousand eight hun-
dred bills of the denomination of
twenty dollars. The form of the
bills was as follows (Journals,
I 126) : —
receive
Spanish milled Dollars, or the
value thereof in Gold or Silver,
according to the Resolutions of the
Congress, held at Philadelphia on
the 10th day of May, A. D. 1775
9 Journals, I. 177.
Cu. 111.] THE REVOLUTIONARY GOVERNMENT. 79
was ordered, a committee of twenty-eight citizens of
Philadelphia was appointed for the purpose, and
the bills were ordered to be signed by any two of
them.1 At this time, no continental Treasurers had
been appointed.2
Such a clumsy machinery was poorly adapted to
the supply of a currency demanded by the pressing
wants of the army and of the other branches of the
public service. The signers of the bills were ‘ex-
tremely dilatory in their work. In September, 177 5,
the paymaster and commissary, at Cambridge, had
not a single dollar in hand, and they had strained
their credit, for the subsistence of the army, to the
utmost; the greater part of the troops were in a state
not far from mutiny, in consequence of the deduction
which had been made from their stated allowance;
and there was imminent danger, if the evil were not
soon remedied, and greater punctuality observed,
that the army would absolutely break up. In N o-
vernber, General Washington deemed it highly de-
sirable to adopt a system of advanced pay, but the
unfortunate state of the military chest rendered it
impossible. There was not cash sufficient to pay
the troops for the months of October and November.
Through the months of ,December and January, the
signing of the bills did not keep pace with the de-
mands of the army, notwithstanding General Wash-
ington’s urgent remonstrances; and in February his
1 Journals, I. 126, 177. The third off: dollar on each thousand
igners of the bills were allowed of the bi s signed by them. Ibid -
a commission of one dollar and one 9 Ante, p. 35.
80 THE FEDERAL CONSTITUTION. [13001: 1
wants became so pressing, that he was obliged to
borrow twenty-five thousand pounds of the Province
of Massachusetts Bay, in order that the recruiting
service might not totally cease?
These facts show significantly, that, before the
Declaration of Independence, scarcely any progress
had been made towards the formation of a national
government with definite powers and appropriate
departments. In matters of judicature, and in meas-
ures requiring executive functions and authority, the
Congress were obliged to rely almost entirely upon
the local institutions and the local civil machinery of
the different colonies; while, in all military affairs,
the very form of the revolutionary government was
unfavorable to vigor, despatch, and consistent meth-
od. There were also causes existing in the temper
and feelings of many of the members of that govern-
ment, both before and after the Declaration of Inde-
pendence, which, at times, prevented the majority
from acting with the decision and energy demanded
by the state of their affairs. Many excellent and
patriotic men in the Congress of 177 5 - 6, while
they concurred fully in the necessity for resistance
to the measures of the British ministry, and had
decided, or were fast deciding, that a separation
must take place, still entertained a great ealousy
of standing armies. This jealousy began to exhibit
itself very soon after the appointment of the Com-
mander-in-chief, and was never wholly without influ-
5
1 Writings of Washington, III. 104, 167, 173, 178, 283.
Ca. 111.] THE REVOLUTIONARY GOVERNMENT. 81
ence in the proceedings of Congress during the en-'
tire period of the war. It led to a degree of reliance
upon militia, which, in the situation of the colonies,
was too often demonstrated to be a weak and fatal
policy.1

1 Writings of Washington, III.
278; IV. 115; V. 328. Mr. Sparks
has preserved an anecdote, which
shows the perpetuation of this
feeling about standing armies, and
evinces also that Washington pos-
sessed more humor than has been
generally attributed to him. In
the Convention for forming the
Constitution of the United States,
some member proposed to insert a
clause in the Constitution, limiting
the army of the United States to five
thousand men. General Washing
ton, who was in the chair, observed
that he should not object to such a
clause, if it were so amended as to
provide that no enemy should ever
presume to invade the United States
with more than three thousand.
NOTE TO PAGE 51.
ON THE DECLARATION or INDEPENDENCE.
THE Declaration of Independence was drawn by Thomas Jefferson;
and the circumstances under which he was selected for this honorable and
important task have been for more than a quarter of a century somewhat
in doubt, and that doubt has been increased by the recent publication of a
part of the Works of Mr. John Adams. The evidence on the subject is to
be derived chiefly from statements made by both of these eminent persons
in their memoirs, and in a letter written by each of them. We have
seen, in a former note, that in 1822 Mr. Adams declared, that had it not
been for a conversation which occurred in 1775, before the meeting of the
Congress of that year, between himself and his Massachusetts colleagues
and certain of th; Philadelphia “ sons of liberty,” in which the Massa-
chusetts members were advised to concede precedence to Virginia, from
motives of policy, and but for the principles, facts, and motives sug-
gested in that conversation, many things would not have happened which
did occur, and among them, that Mr. Jefferson never woiild have been the
author of the Declaration of Independence. In regard to the same specu-
VOL. I. ll
82 THE FEDERAL CONSTITUTION. [13001: I.
lation, concerning the election of Washington as Commander-in-chief, l
have ventured, on Mr. Adams’s own authority, to suggest doubts whether
that election ought now to be considered to have turned upon motives
which Mr. Adams made so prominent in 1822. In regard to the author-
ship of the Declaration of Independence, I shall only endeavor to state
fairly and fully the conflicting evidence, in order that the reader may
judge what degree of weight ought to be assigned to the cause, without
which Mr. Adams supposed Mr. J etferson would not have been selected
to draft it.
Mr. Jefi'erson, as it appeared when his writings came to be published
in 1829, wrote in 1821, when at the age of seventy-seven, a memoir of
some of the public transactions in which he had been engaged. At this
time, he had in his possession a few notes of the debates which took
,place in Congress on the subject of Independence, and which he made at
the time. These notes he inserted bodily, as they stood, in his memoir,
and they are so printed. (Jefferson’s Works, I. 10—14.) They are
,easily distinguishable from the text of the memoir, but they do not appear
to throw any especial light upon the fact now in controversy; although,
as Mr. Jefferson, in 1823, when writing on this subject, supported his rec-
ollection b “ written notes taken at the moment and on the s ot,” it is
Y r P
proper to allow that those notes may in some way have aided his memory,
although we cannot now see in what way they did so. He made this
latter reference in a letter which he wrote to Mr. Madison, in reply to
the statements in Mr. Adams’s letter to Timothy Pickering, under date
of August 6, 1822. (Jefi'erson’s Works, IV. 375, 376.)
At or near the beginning of the present century, Mr. Adams, then
about sixty-six, wrote an autobiography, which has recently been pub-
lished [1850], and in which he gave an account of the authorship of the
Declaration. In 1822, when about eighty-six, Mr. Adams wrote the
letter to Mr. Pickering, which called forth Mr. Jetferson’s contradiction
in his letter to Mr. Madison, under date of August 30, 1823. (Adams's
Works, II. 510-515.) Mr. Jefferson, in his memoir written in 1821,
states simply that the committee for drawing the Declaration desired him
to do it; that he accordingly wrote it, and that, being approved by the
committee, he reported it to the Cgngress on Friday, the 28th of June,
when it was read and ordered to lie on the table; and that on Monday,
the 1st of July, the Congress, in committee of the whole, proceeded to
consider it. “ The pusillanimous idea,” he continues, “that we had
friends in England worth keeping terms with, still haunted the minds of
many. For this reason, those passages which conveyed censures on the
people of England were struck out, lest they should give them ofi'ence
on. 111.] THE REVOLUTIONARY GOVERNMENT. 83
The clause, too, reprobating the enslaving the inhabitants of Africa,
was struck out in complaisance to South Carolina and Georgia, who had
never attempted to restrain the importation of slaves, and who, on the
contrary, wished to continue it. Our Northern brethren, also, I believe,
felt a little tender under those censures ; for though their people had very
few slaves themselves, yet they had been pretty considerable carriers of
them to others. The debates having taken up the greater parts of the
2d, 3d, and 4th days of July, were, on the evening of the last, closed.”
(J efl‘erson’s Works, I. 14, 15.)
In Mr. Adams’s autobiography, the following account is given: — “ The
Committee of Independence were Thomas J efi'erson, John Adams, Benja-
min Franklin, Roger Sherman, and Robert R. Livingston. Mr. J efi'er-
son had been now about a year a member of Congress, but had attended
his duty in the house a very small part of the time, and, when there, had
never spoken in public. During the whole time I sat with him in Con-
gress, I never heard him utter three sentences together. It will natu-
rally be inquired how it happened that he was appointed on a committee
of such importance. There were more reasons than one. Mr. Jefferson
had the reputation of a masterly pen ; he had been chosen a delegate in
Virginia, in consequence of a very handsome public paper which he had
written for the House of Burgesses, which had given him the character
of a fine writer. Another reason was, that Mr. Richard Henry Lee was
not beloved by the most of his colleagues from Virginia, and Mr. J efi'er-
son was set up to rival and supplant him. This could be done only by
the pen, for Mr. J efl'erson could stand no competition with him or any
one else in elocution and public debate . . . . . . The committee had
several meetings, in which were proposed the articles of which the Dec-
laration was to consist, and minutes made of them. The committee then
appointed Mr. Jefi'erson and me to draw them up in form, and clothe
them in a proper dress. The sub-committee met, and considered the
minutes, making such observations on them as then occurred, when Mr.
Jefi'erson desired me to take them to my lodgings, and make the draft.
This I declined, and gave several reasons for declining: 1. That he was
a Virginian, and I a Massachusettensian. 2. That he was a Southern
man, and I a Northern one. 3. That I had been so obnoxious for my
early and constant zeal in promoting the measure, that any draft of
mine would undergo a more severe scrutiny and criticism in Congress
than one of his composition. 4. And lastly, and that would be reason
enough if there were no other, I had a great opinion of the elegance of
his pen, and none at all of my own. I therefore insisted that no hesita¢
tion should be made on his part. He accordingly took the minutes, ano
84 THE FEDERAL CONSTITUTION. [B00]: 1.
in a day or two produced to me his draft. Whether I made or suggested
any corrections I remember not. The report was made to the committee
of five, by them examined, but whether altered or corrected in any thing,
I cannot recollect. But, in substance, at least, it was reported to Con-
gress, where, after a severe criticism, and striking out several of the
most oratorical paragraphs, it was adopted on the 4th of July, 1776,
and published to the world.” (Adams’s Works, II. 511—515.)
The account in Mr. Adams’s letter to Mr. Pickering is as follows : -
“ You inquire why so young a man as Mr. Jefferson was placed at the
head of the committee for preparing a Declaration of Independence’! I
answer, it was the Frankfort advicel to place Virginia at the head of every
thing. Mr. Richard Henry Lee might be gone to Virginia, to his sick
family, for aught I know; but that was not the reason of Mr. J efi'erson’s
appointment. There were three committees appointed at the same time.
One for the Declaration of Independence, another for preparing Articles
of Confederation, and another for preparing a treaty to be proposed to
France. Mr. Lee was chosen for the Committee of Confederation, and it
was not thought convenient that the same person should be upon both.
Mr. Jefferson came into Congress in June, 1775, and brought with him a
reputation for literature, science, and a happy talent of composition.
Writings of his were handed about, remarkable for their peculiar felicity
of expression. Though a silent member in Congress, he was so prompt,
frank, explicit, and decisive upon committees and in conversation, — not
even Samuel Adams was more so, -that he soon seized upon my heart ;
and upon this occasion I gave him my vote, and did all in my power to
procure the votes of others. I think he had one more vote than any
other, and that placed him at the head of the committee. I had the next
highest number, and that placed me second. The committee met, dis-
cussed the subject, and then appointed Mr. Jefferson and me to make the
draft, I suppose because we were the two first on the list. The sub-
committee met. Jefferson proposed to me to make the draft. I said, ‘ I
will not.’ ‘ You should do it.’ ‘ 0, no.’ ‘ Why will you not’!
You ought to do it.’ ‘I will not.’ ‘ Why?’ ‘ Reasons enough.’
‘ What can be your reasons’! ’ ‘ Reason first,--You are a Virginian,
and a Virginian ought to appear at the head of this business. Reason
second, —I am obnoxious, I suspected, and unpopular. You are very
much otherwise. Reason third, — You can write ten times better than I
can.’ ‘ Well,’ said Jefferson, ‘if you are decided, I will do as well
as I can.’ ‘ Very well. When you have drawn it up, we will have a
meeting.’
“ A meeting we accordingly had, and conned the paper over. I was
on. 111.] THE REVOLUTIONARY GOVERNMENT. 85
delighted with its high tone and the flights of oi-atory with which it
rbounded, especially that concerning negro slavery, which, though I
{new his Southern brethren would never suffer to pass in Congress, I
certainly never would oppose. There were other expressions which 1
would not have inserted, if I had drawn it up, particularly that which
called the King tyrant. ‘I thought this too personal; for I never believed
George to be a tyrant in disposition and in nature; I always believed
him to be deceived by his courtiers on both sides of the Atlantic, and in
his oflicial capacity only, cruel. I thought the expression too passionate,
and too much like scolding, for so grave and solemn a document ; but as
Franklin and Sherman were to inspect it afterwards, I thought it would
not become me to strike it out. I consented to report it, and do not now
remember that I made or suggested a single alteration.
“ We reported it to the committee of five. It was read, and I do not
remember that Franklin or Sherman criticized any thing. We were all
in haste. Congress was impatient, and the instrument was reported, as
I believe, in Jefi‘erson’s handwriting, as he first drew it. Congress cut
off about a quarter of it, as I expected they would ; but theyghlimkated
some of the best of it, and left all that was exceptionable, if ny thing in
it was. I have long wondered that the original draft has not been pub-
lished. I suppose the reason is, the vehement philippic against negro
slavery. * ‘
“ As you justly observe, there is not an idea in it but what had been
hackneyed in Congress for two years before. Thwmwitis con
tained in the de __ig y‘igljéjpnnnpfthpse right§,,_in
' _' - ' . -._ -~._ in 1774. Indeed, the essence of it is contained
in a pamphlet, voted and prnte y the town of Boston, before the first
Congress met, composed by James Otis, as I suppose, in one of his lucid
intervals, and pruned and polished by Samuel Adams.”
Mr. Jefferson, on the contrary, in his letter to Mr. Madison, says : —
“These details are quite incorrect. The committee of five met; no
such thing as a sub-committee was proposed, but they unanimously
pressed on myself alone to undertake the draft. I consented ; I drew it;
but, before I reported it to the committee, I communicated it separately
to Doctor Franklin and Mr. Adams, requesting their correction, because
they were the two members of whose judgments and amendments I
wished most to have the benefit, before presenting it to the committee;
and you have seen the original paper now in my hands, with the correc-
tions of Doctor Franklin and Mr. Adams interlined in their own hand-
writings. Their alterations were two or three only, and merely verbal.
I then wrote a fair copy, reported it to the committee, and from them




86 TEE FEDERAL CONSTITUTION. [3001: r
unaltered, to Congress. This personal communication and consultation
with Mr. Adams he has misremembered into the actings of a sub-com-
mittee. Pickering’s observations, and Mr. Adams’s in addition, ‘that
it contained no new idea, that it is a commonplace compilation, its senti-
ments hackneyed in Congress for two years before, and its essence con-
tained in Otis’s pamphlet,’ may all be true. Of that I am not to be the
judge. Richard Henry Lee charged it as copied from Locke’s Treatise
on Government. Otis’s pamphlet I never saw, and whether I had gath~
ered my ideas from reading or reflection I do not know. I know only
that I turned to neither book nor pamphlet while writing it. Idid not
consider it as any part of my charge to invent new ideas altogether, and
to offer no sentiment which had ever been expressed before. Had Mr.
Adams been so restrained, Congress would have lost the benefit of his
bold and impressive advocations of the rights of revolution. For no
man’s confident and fervid addresses, more than Mr. Adams’s, encour-
aged and supported us through the difliculties surrounding us, which
like the ceaseless action of gravity, weighed on us by night and by day.
Yet, on the same ground, we may ask what of these elevated thoughts
was new, or can be afiirmed never before to have entered the conceptions
of man?
“ Whether, also, the sentiment of Independence, and the reasons for de-
claring it, which make so great a portion of the instrument, had been
hackneyed in Congress for ‘two years before the 4th of July, 1776, or this
dictum of Mr. Adams be another slip of memory, let history say. This,
however, I will say for Mr. Adams, that he supported the Declaration
with zeal and ability, fighting fearlessly for every word of it. As to
myself, I thought it a duty to be, on that occasion, a passive auditor of
the opinions of others, more impartial judges than I could be of its merits
or demerits. During the debate I was sitting by Doctor Franklin, and
he observed that I was writhing a little under the acrimonious criticisms
on some of its parts; and it was on that occasion, that, by way of comfort,
he told me the story of John Thomson, the hatter, and his new sign.”
(Jefl‘erson’s Works, IV. 376.)
The substantial point of difference in these two accounts of the same
transaction, relates to the action of the committee in designating the per-
son or persons who were to prepare the draft of a Declaration. Mr.
Adams states that Mr. J efi'erson and himself were appointed a sub-com
mittee to prepare it; Mr. Jefferson states that he alone was directed by
the committee to write the Declaration. This question is‘ not important,
since Mr. Adams’s version does not in the least impair Mr. Jefferson’:-
claim to the authorship of the instrument. The latter, it must be al-
011.111.] THE REVOLUTIONARY GOVERNMENT. 87
lowed, gracefully parries the criticisms of Mr. Adams, by a noble allusion
to the eloquence which sustained his compatriots in the difliculties and
embarrassments that surrounded them, and which they did not think of
analyzing, for the purpose of tracing the exact originality of its senti-
ments.
It is proper to add, that Mr. J efl'erson’s account is confirmed by the
original manuscript draft of the Declaration, a fac-simile of which was
published in 1829, in the fourth volume of his Works, exhibiting the cor-
rections and interlineations made by Dr. Franklin and Mr. Adams in
their respective handwritings. These emendations were not important.
The reasons assigned by Mr. Adams for the selection of Mr. J efi'erson
as the writer of the Declaration are so numerous, that it is diflicult to
determine which of them he intended should be regarded as the princi- ,
pal or decisive one. In the autobiography, he states that there were
more reasons than one why Mr. Jefferson was appointed on a committee
of such importance. He assigns two reasons: one, Mr. J efi‘erson’s repu-
tation as a Writer, and the other, the desire of his Virginia colleagues
to have Mr. Jefferson supplant Mr. Richard Henry Lee. In his letter to
Mr. Pickering, Mr. Adams gives as the reason why Mr. Jefi'erson was
placed at the head of the committee, that it was “the Frankfort advice
to place Virginia at the head of every thing”; but he also adds, that -
Mr. Jefferson brought with him to Congress “ a reputation for literature,
science, and a happy talent of composition,” and that this reputation had
then been sustained by writings “ remarkable for their peculiar felicity of
expression.” As in the case of Washington, therefore, it would seem
that there were reasons of eminent fitness and qualification for the duty
assigned; and certainly the Declaration of Independence itself fully jus-
tifies the selection. Few state papers have ever been written with more
skill, or greater adaptation to the purposes in view. Whether its senti-
ments were purely original with its author, or were gathered from the
political philosophy which had become familiar to the American mind,
through the great discussions of the time, it must for ever remain an im-
perishable monument of his power of expression, and his ability to touch
the passions, as well as to address the reason, of mankind, It would be
inappropriate to apply to its style the canons of modern criticism. Its
statements of political truth, taken in the sense in which they were mani-
festly intended, can never be successfully assailed. With regard to the
passage concerning slavery, we may well conceive that both Northern
and Southern men might have felt the injustice” of the terrible denuncia-
tion with which he charged upon the King all the horrors, crimes, and
consequences of the African slave-trade, and in which he accused him
88 THE FEDERAL CONSTITUTION. [BOOK 1.
of exciting the slaves to insurrection, and “ to purchase the liberty of
which he had deprived them by murdering the people upon whom he had
obtruded them.” Mr. Jefferson, in drawing up the list of our national
accusations against the King, obviously intended to refer to him as the
representative of the public policy and acts of the mother country; and
it is true that the imperial government was, and must always remain,
responsible for the existence of slavery in the colonies. But this was not
one of the grievances to be redressed by the Revolution; it did not con
stitute one of the reasons for aiming at independence; and there was no
sufiicient ground for the accusation that the government of Great Britain
had knowingly sought to excite general insurrections among the slaves.
The rejection of this passage from the Declaration shows that the Con-
gress did not consider this charge to be as tenable as all their other com-
plaints certainly were.

CHAPTER IV.
JuLY,1776-—-NovEMBER,1777.
CoNsEQuENoEs OF THE DECLARATION OF INnEPENnENcE.— REORGANI-
zATIoN OF THE CONTINENTAL ARMY.-- FLIGHT OF THE CoNGREss
FROM PH1LAnELPHIA.—PLAN OF THE CONFEDERATION PROPOSED.
WHEN the Declaration of Independence at length
came, it did not in any way change the form of the
revolutionary government. It created no institution,
and erected no civil machineiy. Its political effect
has already been described. Its moral effect, both
upon the members of the Congress and upon the
country, was very great, inasmuch as it put an end
alike to the hope and the possibility of a settle
ment of the controversy upon the principles of the
English Constitution, for it made the colonies free,
sovereign, and independent states. Men who had
voted for such a measure, and who had put their
signatures to an instrument which the British Par-
liament or the Court of King’s Bench could have
had no difficulty in punishing as treasonable, could
no longer continue to feed themselves on “ the dainty
food of reconciliation.”1 Thenceforward, there was
1 Washington’s Writings, III. 403.
VOL. 1. 12
r
In...‘
90 THE FEDERAL CONSTITUTION.
[Boon L
‘ Mm
no retreat. The colonies might be conquered, over-
run, and enslaved; but this, for the full and final
establishment of their own sovereignty, were the sole
alternatives. The consequence was, that the Decla-
ration was followed by a greater alacrity on the part
of the whole body of the Congress to adopt vigorous
and decisive measures, than had before prevailed
among them.
But there was one feeling which the Declaration
did not dispel, and another to which it immediately
gave rise, both of which were unfavorable to concen-
trated, vigorous, and effective action on the part of
the revolutionary government. The Declaration of
Independence did not dissipate the unreasonable and
ill-timed ealousy of standing armies, which gave
way, at last, only when the country was in such im-
minent peril that Washington felt it to be his duty
to ask for extraordinary powers, to be conferred upon
himself. It was followed, too, as an immediate con-
sequence, by that jealousy with regard to State
rights, and that adhesion to State interests, which
have existed in our system from that day to the
present, and are not entirely separable froin it. As
the Declaration made the colonies sovereign and in-
dependent, and was followed by the formation of
State governments, before the creation of any well
defined national system, State sovereignty became at
once an ever-present cause of embarrassment to the
Congress, in whose proceedings entire delegations
sometimes made the interests of the country bend
to the interests of their own State, to a mischievous
extent.
on. N] THE REVOLUTIONARY GOVERNMENT. 91
To explain these observations, we must recur again
to the history of the army, and to the efforts of
Washington to have the military establishment put
into a safe and efficient condition.
After the evacuation of Boston by the British
forces, General Washington proceeded, at once, with
the continental army to the city of New York,
where he arrived on the 13th of April, 17 7 6. The
loss of the battle of Long Island on the 27th of
August, and the extreme improbability' of his being
able to hold the city against the superior forces by
which it had been invested through the entire sum-
mer, made it necessary for him to appeal once more
to the Congress for the organization of a permanent
army, capable of offering effectual resistance to the
enemy. The establishment formed at Cambridge in
the autumn previous was to continue for one year
only; it was about to be dissolved; and in the month
of September General Washington was compelled to\
abandon the city of New York to the enemy. Be-\
fore he withdrew ‘from it, he addressed a letter to
the President of Congress, on the 2d of, September,
in which he told that body explicitly that the liber-
ties of the country must of necessity be greatly haz-
arded, if not entirely lost, should their defence be left
to any but a permanent standing army; and that, .
with the army then under his command, it was im- _
possible to defend and retain the city.1 On the 20th
1 Writings of Washington, IV. 72.
92 THE FEDERAL CONSTITUTlUN. [BOOK 1.
of the same month, he again wrote, expressing the
opinion that it would be entirely impracticable to
raise a proper army, without the allowance of a large
and extraordinary bounty?
At length, when he had retreated to the Heights
of Hahrlem, and found himself surrounded by a body
of troops impatient of restraint, because soon to be
entitled to their discharge, and turbulent and licen-
tious, because they had never felt the proper induce-
ments which create good conduct in the soldier, he
made one more appeal to the patriotism and good
sense of the Congress. Few documents ever pro-
ceeded from his pen more wise, or evincing greater
knowledge of mankind, or a more profound appre-
hension of the great subject before him, than the
letter which he then wrote concerning the reorgani-
zation of the army?
Before this letter was written, however, urged by
his repeated requests and admonished by defeat, the
Congress had adopted a plan, reported by the Board
of War, for the organization of a new army, to serve
during the war. A long debate preceded its adop-
tion, but the resolves were at length passed on the
16th of September, 17 7 6.3 They authorized the en-
listment of a body of troops, to be divided into eigh-
ty-eight battalions, and to he enlisted as soon as
possible. These battalions were to be raised by the
States; a certain number being assigned to each State
1 Writings of Washington, IV. gress, Washington’s Writings, IV
100. 110. September 24, 1776.
9 Letter to the President of Con- 3 Journals, II. 357.
on. IV.] THE REVOLUTIONARY,GOV"ERNMIENT. 93
as its quota. The highest quota, which was 15, was
assigned to the States of Virginia and Massachusetts,
respectively. Pennsylvania had 12; North Carolina,
9; Maryland and Connecticut, 8 each; South Caro-
lina, 6; New York and New Jersey, 4 each; New
Hampshire, 3; Rhode Island, 2; and Delaware and
Georgia, 1 each. The inducements to enlist were
a bounty of twenty dollars and one hundred racres
of land to each non-commissioned officer or soldier;
and to the commissioned officers, the same bounty
in money, with larger portions of land.1 The States
were to provide arms and clothing for their respec-
tive quotas, and the expense of clothing was to be
deducted from the pay.2 Although the officers were
to be commissioned by the Continental Congress,
each State was to appoint the officers of its own bat-
talions, from the colonel to those of the lowest grade,
inclusive. A circular letter was addressed by Con-
gress to each State, urging its immediate attention
to the raising of these troops; and a committee of
three members of the Congress was sent to the head-
quarters of General Washington, to confer with him
on the subject? .
Two serious defects in this plan struck the Com-
mander-in-chief, as soon as it was laid before him;
but the resolves had been passed, and passed with
1 500 acres to a colonel ; 450 12 (1776), the option was given to
to a lieutenant-colonel ; 400 to a enlist for the war or for three years,
major; 300 to a captain; 200 to a taking away the land bounty from
lieutenant ; and 150 to an ensign. those who enlisted for the latter
2 Journals, II. 357. Subsequent— period only. Ibid. 454. ’
ly, by a resolve passed November 3 Ibid. 0
94 THE FEDERAL CONSTITUTION. [BOOK 1.
difficulty, before he had an opportunity specifically a,
to point out the mistakes. In the first place, by {/
giving the appointment of the officers to the States,
any central system of promoting or placing the ofii-
cers then serving on the continental establishment ac-
cording to their characters and deserts was rendered
impossible. The resolutions of Congress did not even
ecommend these oflicers to the consideration of
their respective States. They were left to solicit
their appointments at a distance, or to go home
and make personal application. Those who chose
to do the latter were more likely to get good places
than those who remained at their posts; but they
were also less likely to be deserving of important
commissions than those who stayed with the army.
To expect that a proper attention would be paid to
the claims of men of real merit, under such a sys-
tem, -— whether they had or had not been in service
before, — or that the army when brought together i
would be found to be oflicered on a uniform prin-
ciple, exhibiting an adaptation of character to sta-
tion, was, in Washington’s view, to expect that local
authorities would not be influenced by local attach-
ments, and that merit would make its way, in silence
and absence, against personal importunity and bold
presumption.
But Washington saw no remedy for these evils,
except by opening a direct communication with the
States, through which he might exert some influence
over their appointments. He immediately suggested
to the Congress, that each State should send a com-

CH. IV.] THE REVOLUTIONARY GOVERNMENT.
mission to the army, with authority to appoint all'
the officers of the new regiments. 'Congress passed
a resolve recommending this step to the States, and
advising that the Commander-in-chief should be
consulted in making the appointments; that those
Ofiicers should be promoted who had distinguished
themselves for bravery and attention to their duties;
that no officer should be appointed who had left
his station without leave; and that all the ofiicers to
be appointed should be men of honor and known
abilities, without particular regard to their having
been in service before.1 This was but a partial rem-
edy for the defects of the system. Several of the
States sent such a commission to act with the Com-
mander-in-chief ; but many of them were tardy in
making their appointments, and finally the Congress
authorized General Washington to fill the vacancies.
Another and a dangerous defect in this plan was,
that the continental pay and bounty on enlistment
were fixed so low, that some of the States, in order
to fill up their quotas, deemed it expedient to offer
a further pay and bounty to their own men. This
was done immediately by the States of Connecticut
and Massachusetts. The consequence was likely to
be, that, if the quotas of some States were raised
before the fact became known that other States had
increased the pay and the bounty, some regiments
would, when the army came together, be on higher
pay than -others, and jealousy, impatience, and mu
‘a:
1 Journals, II. 403. October 8, 1776. ,
96 THE FEDERAL CONSTITUTION. [BOOK 1.
tiny must inevitably follow. Knowing that a differ-
ent pay could not exist in the same army without
these consequences, General Washington remonstrat-
ed with the Governor of Connecticut, arrested the
proceedings of the commissioners of that State and‘
of Massachusetts, and prevented them from publish-
ing their terms, until the sense of the Congress could
be obtained? That body, on receiving from him an-
other strong representation on the subject, passed a
resolve augmenting the pay.
Still, the system, notwithstanding these efforts to
amend it, worked ill. The appointment of the offi-
cers by the States was incapable of being well man-
aged; the pay and bounty, even after they were in-
creased, were insufficient; and the whole scheme of
raising a permanent army was entered upon at too
late a period to be effectually accomplished. As
late as the middle of November, so little had been
done, that the whole force on one side of the ' Hud-
son, opposed to Howe’s whole army, did not exceed
two thousand men of the established regiments;
while, on the other side, there was a force not much
larger to secure the passes into the Highlands? “ I
am wearied almost to death,” said the Commander-
in-chief, in a private letter, “ with the retrograde
motion of things, and I solemnly protest that a pe-
cuniary reward of twenty thousand pounds a year
would not induce me to undergo what I do; and
1 Writings of Washington, IV.173. 2 Ibid. 183, 184
on. IV] THE REVOLUTIONARY GOVERNMENT. 97
after all; perhaps, to lose my character, as it is im-
possible, under such a variety of distressing circum-
stances, to conduct matters agreeably to public ex-
pectation, or even to the expectations of those who
employ me, as they will not make proper allowances
for the difficulties their own errors have occasioned.”1
There are few pages in our history so painful as
those on which are recorded the complaints extort-
ed from Washington, at this period, by the trials
of his situation. That he, an accomplished soldier,
who had retired with honor from the late war with
France to his serene Mount Vernon; who had left
it again, to stake life, and all that makes life val-
uable, on the new issue of his country’s indepen-
dence; who asked no recompense and sought no
object but her welfare, should have been compelled
to pass into the dark valley of the retreat through
New Jersey, with all its perplexities, dangers, and
discouragements, — its cruel exertions and its hu-
miliating reverses, —- without a powerful and ener-
getic government to lean upon, and with scarcely
more than Divine assistance to which to turn, pre-
sents, indeed, to our separate contemplation, a dis-
heartening and discreditable fact. But no trials arej/
appointed to nations, or to men, without their fruits.
The perplexities and difficulties which surrounded
Washington in the early part of the Revolution con-
tributed, undo ~ y, to give him that profound civil
wisdom, that knowledge of our civil wants, and that
“ 1 Writings of Washington, IV. 184.
VOL. 1 l3
98 THE FEDERAL CONSTITUTION. [BOOK 1.
influence over the moral sense of the county, which
i were afterwards so beneficently felt in the establish-
ment of the Constitution. The very weakness of the
/ government which he served became in this manner
l1 7 his and our strength. Without the trials to which
it subjected him, it may well be doubted whether we
should now possess that tower of strength, -that
security against distracted counsels and clashing in-
- terests, — which exist for us in the character and
services of that extraordinary man.
It is not necessary ‘to sketch the scene or to follow
the route of General Washington’s retreat through
New Jersey, except as they illustrate the subject of
this work, — the constitutional history of the coun-
try. Its remarkable military story is well known.
On the 23d of November, four days after the date of
the letter to his brother above quoted, he was at
Newark, with a body of troops whose departure was
near at hand, and for supplying whose places no pro-
vision had been made. The enemy were pressing on
his rear, and in order to impress upon Congress the
danger of his situation, he sent Ge eral Mifliin to
lay an exact account of it before them.1 On the
28th, he marched out of Newark in the morning,
and Lord Cornwallis entered it on the afternoon of
the same day. On the 30th, he was at Brunswick,
endeavoring, but with little success, to raise the
militia; — the terms of service of ,he Jersey and
Maryland brigades expiring on the day. On the
1 Writings, IV. 190.
CH. IV .] THE REVOLUTIONARY GOVERNMENT.
1st of December, his army numbered only four thou-
sand men, and the enemy were pushing forward with
the greatest energy.1 On the 5th, he resolved to
march back to Princeton; but neither militia nor
regulars had come in, and it was too late to prevent
an evil, which he had both foreseen and foretold.2
On the 8th, he crossed the Delaware.3 On the 12th,
he saw his little handful of men still further decrease,
and now, without succors from the government, or
spirited exertions on the part of the people, the loss
of Philadelphia—“ an event,” said he, “which will
wound the heart of every virtuous American”—rose
as a spectre in his path.4 On the 16th, as he moved
on, gathering all the great energies of his character to
parry this deep disgrace, concentrating every force
that remained to him towards the defence of the city,
and animating and directing public bodies, in a tone
of authority and command, he once more urged the
Congress to discard all reliance upon the militia, to
augment the number of the regular troops, and to
strain every nerve to recruit them.5 Finally, —being
still in doubt whether Howe did not intend an at-
tack on Philadelphia, before going into winter quar
ters,-'- with less than threeethousand men fit for duty,
to oppose a well-appointed army of ten or twelve
thousand, and surrounded by a population rapidly
submitting to the enemy, -— he felt that the time had
come, when to his single hands must be given all the
military authority and power which the Continental
1 Ibid. 197. 3 Ibid. 206. 5 Ibid. 225.
9 Ibid. 202. 4 Ibid. 211. ~


100 THE FEDERAL CONSTITUTION. [Boon L
Union of America held in trust for the liberties of
the country. On the 20th of December, therefore, he
wrote to the President of Congress a memorable let-
ter, asking for extraordinary powers, but displaying
at the same time all the modesty and high principle
of his character?
To this appeal Congress at once responded, in a
manner suited to the exigency. On the 27th of
December, 1776, they passed a resolution, vesting
in General Washington ample and complete pow-
er to raise and collect together, in the most speedy
and effectual manner fiom all or any of the United
States, sixteen battalions of infantry, in addition to
those already voted; to appoint the officers of these
battalions; to raise, ofiicer, and equip three regi-
ments of artillery and a corps of engineers, and to
establish their pay; to apply to any of the States for
such aid of their militia as he might udge necessary;
to form such magazines of provisions, and in such
places, as he should think proper; to displace and
appoint all officers under the rank of brigadier-gen-
eral; to fill up all vacancies in every other depart-
ment of the American army; to take, wherever he
might be, whatever he might want for the use of
the army, if the inhabitants would not sell it, allow-
ing a reasonable price for the same; to arrest and
confine persons who should refuse to receive the con-
tinental currency, or were otherwise disaffected to the
American cause; and to return to the States of which
1 Writings, IV. 232.
on. IV.] THE REVOLUTIONARY GOVERNMENT. 101
such persons were citizens their names and the na
ture of their offences, together with the witnesses to
prove them. These powers were vested in the Com-
mander-in-chief for the space of six months from the
date of the resolve, unless sooner revoked by the
Congress.1
The powers thus conferred upon General Wash-
ington were in reality those of a military dictator-
ship; and in conferring them, the Congress acted
upon the maxim that the public safety is the su-
preme law. They acted, too, as if they were the
proper judges of the exigency, and as if the powers
they granted were then rightfully in their hands.
But it is a singular proof of the unsettled and anom-
alous condition of the political system of the country,
1 Journals, II. 475. A commit-
tee, at the head of which was Rob-
ert Morris, was appointed to trans-
mit this resolve to General Wash-
ington, and in their letter they said :
“ We find by these resolves that
your Excellency’s hands will be
strengthened by very ample pow-
ers; and a new reformation of the
army seems to have its origin
therein. Happy it is for this
country, that the general of their
forces can safely be intrusted with
the most unlimited power, and nei-
ther personal security, liberty, nor
property be in the least degree en-
dangered thereby.” In his reply,-
the General said to the committee:
“ Yours of the 31st of last month
inclosed to me sundry resolves of
Congress, by which I find they
have done me the honor to intrust
me with ‘ powers, in my military
capacity, of the highest nature, and
almost unlimited in extent. Instead
of thinking myself freed from all
civil obligations, bythis'mark of
their confidence, I shall constantly
bear in mind, that, as the sword
was the last resort for the preser-
vation of our liberties, so it ought
to be the first thing laid aside‘ when
those liberties are firmly estab-
lished. ‘I shall instantly set about
the most necessary reforms in the
army; but it will not be in my
power to make so great a progress
as if I had a little leisure time
upon my hands.” Writings of
Washington, IV. 257, 552.
102 THE FEDERAL CONSTITUTION. [BOOK I.
and of the want of practical authority in the conti-
nental government, that, in three days after’ the adop-
tion of the resolves conferring these powers, the
Congress felt it necessary to address a letter to the
Governors of the States, apologizing for this step.
Nor was their letter a mere apology. , It implied a
doubt whether the continental government possessed
a proper authority to take the steps which the crisis
demanded, and whether the execution of all measures
did not really belong to the States, the Congress hav-
ing only a recommendatory power. “Ever attentive,”
their letter declared, “to the security of civil liberty,
Congress would not have consented to the vesting
of‘- such powers in the military department as those
which the inclosed resolves convey to the continental
Commander-in-chief, if the situation of public affairs
did not require, at this crisis, a decision and vigor
which distance and numbers deny to assemblies far
removed from each other and from the seat of war.”
The letter closed, by requesting the States to use their
utmost exertions to further such levies as, the gen-
eral might direct, in consequence of the new powers
given him, and to make up and complete their quotas
as formerly settled? _
J' “ Strictly examined, therefore, the position taken by
the Congress was, that a crisis existed demanding the
utmost decision and vigor; that the measures neces-
sary, to meet it,_ such as the raising of troops and
the compulsory levying of supplies, belonged to the
1 Writings of Washington, IV. 551.
cn. IV.] THE REVOLUTIONARY GOVERNMENT. 103
States ; but that, the State governments being removed
from each other and from the seat of war, the Con-
gress confers upon the continental general power to
do things which in reality it belongs to the States to
do. In this there was a great inaccuracy, according
to all our present ideas of constitutional power. But
still the action of the Congress expresses and exhib-
its their real situation. It contains a ‘contradiction
between the true theory of their revolutionary powers
and the powers which they could in fact practically
exercise. Upon principle, it was just as competent to
the Congress to take the steps required by the exi-
gency, as it was to adjudge them to the States; and it
was just as competent to the Congress to do any thing
directly, as to confer a power to do it on their gen-
eral. But the jealousies of the States, the habits of \
the country, and the practical working of the exist-
. . . . . . V
mg mstitutlons, had never permitted the full exercise
of the revolutionary powers which properly resided in
the hands of the Congress. The true theory of their
situation was limited by practical impossibilities; and
an esciape from contradictions became impossible. It-
was perceived that the States would neither pass laws
or resolves for the summary raising of forces and
levying of supplies, nor allow‘ this to be done by com-
mittees or commissioners of Congress; but it was
believed that they would acquiesce in its being done
by General Washington, out of respect for his char-
acter, for his abilities and motives, and from con-
viction that he alone could 'save the country. 'i
The expectations of the Congress were not disap-
104 THE FEDERAL CONSTITUTION. [BOOK i
a were pending in Congress.
pointed. It was felt throughout the country, that
such powers could be lodged in the hands of .Wash-
ington without danger. The States in general acqui-
esced in the necessity and propriety of this measure,
and there was little disposition to encroach upon or
to complain of the authority conferred. To this‘ ac-
quiescence, however, there were exceptions?
The period which now followed was a part of the’
interval 4 during which the Articles of Confederation
We have seen that the
plan of a confederation was reported to that body in
July, 177 6, and finally adopted for recommendation
to the States in November, 1777. But soon after the
extraordinary powers had been conferred upon Gen-
eral Washington, the attendance of the members. he-
gan to diminish, and several of the most eminent
and able men, who had hitherto served, retired from
Congress. In January, 1777, there were no delega-
tions present from the States of Delaware and New
York ;2 and in February, the absence of many distin-
guished men, whose counsels had been of vast impor-
tance, made a striking deficiency. The formation of
the State governments, and the local affairs of the
States, absorbed for a time, with a few important ex
ceptions, the best civil talent in the country.3
1 Writingsjof Washington, IV.
551.
9 Journals, III. 35.
3 “ We have now to lament,”
said Robert Morris, in a private
letter to General Washington, un-
der date of February 27th, 1777,
“ the absence from the public coun
oils of America of Johnson, Jay
R. R. Livingston, Duane, Deane,
W‘. Livingston, Franklin, Dickin-
son, Harrison, Nelson, Hooper
on. IV.]
105.
THE REVOLUTICNARY GOVERNMENT.
While the personal efiiciency and wisdom of the
Congress thus sensibly declined, no change took place
in the nature of their powers, or in their relations to
the States, that would impart greater vigor to their
proceedings. The delegations of many of the States
were renewed in the winter of 1776 - '7; but there
was a great diversity, and in some cases a great Vague-
ness, in their instructions.1
In such a state of things,
Rutledge, and others not less con-
spicuous, without any proper ap-
pointments to fill’ their places, and
this at the very time ‘they are most
wanted, or would be so, if they
_ had not very wisely supplied the
deficiency by delegating to your
Excellency certain powers, that
they durst not have intrusted to
any other man. But what is to
become of America, and its cause,
if a constant fluctuation is to take
place among its counsellors, and
at every change We find reason to
view it with regret’! ”
of Washington, IV. 340, note.
1 Massachusetts, in December,
1776, renewed the ‘credentials of
John Hancock, Samuel Adams,
John Adams, ‘Robert Treat Paine,
Elbridge Gerry,‘ Francis Dana,
and James Lovell, giving power
to any three-or more of, them, with
the delegates from the other Amer-
ican States, to cbncert, direct, ‘and
order such further measures as
shall to them appear best calcu-
lated forthe establishment of, right
and liberty to the American. States,
upon a basis ‘ permanent and secure
against the power and art of t the
voL. I.’ 14
Writings _
British administration; for prose-
cuting the present war, concluding
peace, contracting alliances, estab-
lishing commerce, and guarding
against any future encroachments
and machinations of their enemies;
with power to adjourn, 8L0. (Jour-
nals, IV. 14.) New Hampshire
in the same month sent William
Whipple, Josiah Bartlett, and
Mathew Thornton, making any _
one of them a full delegation, with
out any other instructions than “ to
represent” the State in the Conti-
nental Congress for one year, and
allowing only two of them to at-
tend at a time. (Ibid. 41.). Vir-
ginia in the same month appointed
Mann Page, in the room of George
Wythe, with the same general in-
structions “ to represent” the State.
(Ibid. 42.) North Carolina in the
same month appointed William
Hooper, J osephHewes, and Thom-
as Burke, and invested‘them “with
such powers as may make any act
done, by them, orany of them, or
consent given in‘ the said Congress
in behalf of this State,‘ obligatory
upon every ' inhabitant thereof.”
(Ibid. 37.) South’ Carolina chose
106 THE FEDERAL CONSTITUTION. [BOOK 1.
— with no uniform rule prescribing the powers of
the Congress, and with some uncertainty in that body
itself with regard to its authority to confer upon the
Commander-in-chief the powers with which he was
now invested,—- however general. might be the readi-
ness of the country to acquiesce in their necessity, it
is not surprising that State jealousy was sometimes
aroused, or that it should have been unreasonable in
some of its manifestations.
A striking instance of this jealousy occurred upon
the occasion of a proclamation issued by General
Washington at Morristown, on the 25th of January,
177 7. Sir William Howe had published a procla-
mation in New Jersey, offering protection to such of
the inhabitants as would take an oath of allegiance
to the King.
Many of the substantial farmers of
Arthur Middleton, Thomas Hay-
ward, Jr. , and Henry Laurens, with
power “to concert, agree to, and
execute every measure which one
or all of them should judge neces-
sary for the defence, security, or
interest of this State in particular,
and of America in general.” (Ibid.
53.) Connecticut sent Roger Sher-
man, Samuel Huntington, Elipha-
let Dyer, Oliver Wolcott, Richard
Law, and William Williams, “to
consult, advise, and resolve upon
measures necessary to be taken and
pursued for the defence, security,
and preservation of the rights and
liberties of the said United States,
and for their common safety ” ; but
requiring them “ of such their
. proceedings and resolves to trans-
mit authentic copies from time to
time to the General Assembly of
this State.” (Ibid. 5.) Of the
other States, Pennsylvania, Rhode
Island, New York, New Jersey,
Maryland, and Georgia, which re-
newed their delegations somewhat
later in the year, instructed them
simply “to represent ” the State in
the Continental Congress ; and Del-
aware empowered its delegates, on
behalf of the State, “ to concert,
agree to, and execute any measure
which they, tbgether with a ma
jority of the Continental Congress
should judge necessary for the de-
fence, security, interest, and wel-
fare of that State in particular, and
America in general.” (Ibid. 64,
315, 171, 169, 395, 54, 403,‘ 86.)
CH. IV.] THE REVOLUTIONARY GOVERNMENT. 107
the country had availed themselves of this offer, and
had received protections from the British general.
The English and Hessian troops, however, made no
distinction between friends and foes, but frequently
committed great outrages both upon person and
property. The resentment of the population would
have restored them to the patriot side; but many
who had taken the oath of allegiance felt, or affected,
in consequence, scruples of conscience.
‘/ General Washington therefore issued a counter-
proclamation, commanding all persons who had re-
ceived the enemy’s protection to repair to head-quar-
ters, or to some general officer of the army, and to
surrender their protections and take an oath of alle-
giance to the United States ; — allowing thirty days
for those who preferred to remain under the protec-
tion of Great Britain to withdraw within the enemy’s
lines. This was considered in some quarters as an
undue exercise of power. The idea of an Oath of alle-
giance to the United States, before the Confederation
was formed, was regarded by many as an absurdity.
Allegiance, it was said, was due exclusively to the
State of which a man was an inhabitant; the States
alone were sovereign ; and it was for each State,
not for the United States, which possessed no sover-
eignty, to “exact this obligation. The Legislature of
New Jersey were disposed to treat General Wash-
ington’s proclamation as an encroachment on their
prerogatives: and ‘one of the delegates of that State
in Congress denounced it as improper.1 -
1 This was Mr. Abraham Clark, one of the signers of the Declara-
108 TFE FEDERAL CONSTITUTION. [BOOK I.
This feeling was shared by other members; but
it is not to be doubted, that the proceeding was a
legitimate exercise of the authority ‘vested in the
Commander-in-chief. He had been expressly empow-
ered to arrest and confine persons disaffected to the
American cause; and the requiring them to attend
" at his head-quarters was clearly within the scope of
this authority. Moreover, although no confederation or political union of the States had been formed under ‘
a written compact, yet the United States were waging
war, as a government regularly constituted by its
representatives in a congress, for the very purpose
of carrying on such war. They had an army in the
field, whose officers held continental commissions, and
were paid by a continental currency. They were ex-
ercising certain of the attributes of sovereignty as a
belligerent power; and in that capacity they had a
complete right to exact such an obligation not to aid
the enemy, as would separate their friends fi'om their
fees. It was a military measure; and the tenor of the
proclamation shows that General Washington exacted
the oath in that relation. To pause at such a moment,
and to consider nicely how much sovereignty resid-
ed in each of the States, and how much or how little
belonged to the United States, was certainly a great
refinement. But it marks the temper of the times,
and the extreme jealousy with which all continental
power and authority were watched at that period?
tion of Independence. Mr. Sparks ject. Writings of Washington,
has preserved a curious letter writ- IV. 298.
ton by this gentleman on the ‘sub- 1 The whole of this alarm evi-
Cu. Iv.]
109
THE REVOLUTIONARY GOVERNMENT.
We have seen that the powers conferred upon
General Washington authorized him to raise, in the
most speedy and effectual manner, sixteen battalions
of infantry, in addition to those before voted by Con-
gress, three regiments of artillery, and a corps of
engineers; and also to apply to any of the States for
dently arose from the use of the
words “ oath of allegiance ” in
General Washington’s proclama-
tion. Probably this phrase was
used by him as a convenient de—
scription of the obligation which
he intended to exact. He did not
use it as a jurist, but as a general
and a statesman. In a letter writ-
ten by him on the 5th of February
(1777) to the President of Con-
gress, desiring that body to urge
the States to adopt an oath of fidel-
ity, he said: “ From the first in-
stitution of civil government, it
has been the national policy of ev-
ery precedent state to endeavor to
engage its members to the dis-
charge of their public duty by the
obligation of some oath ” ; and he
then observes, with his characteris—
tic wisdom, that “ an oath is the
only substitute that can be adopted
to supply the defect ry“ principle.”
He advised that every State should
fix upon some oath or affirmation
of allegiance, to be tendered to all
the inhabitants without exception,
and to outlaw those that refused it.
(Writings, IV. 311, 312.) After-
wards, when the Legislative Council
of New J ersey— where some of the
people had refused to take the oath
required by his proclamation— ap-
plied to him to explain the nature
of the oath, and to be furnished
with a copy of it, that they might
know whether it was the oath pre
scribed by the General Assembly
of that State, he informed them
that he had prescribed no form, and
had reverted to none prescribed by
them; that his instructions to the
brigadiers who attended to that
duty were, to insist on nothing
more than an obligation in no man-
ner to injure the States; and that
he had left the form to his subordi-
nates; but that if he had known of
any form adapted to the circum-
stances of the inhabitants, he would
certainly have ordered it. (Ibid.
319, note.) This explanation makes
it quite certain, that what General
Washington called in his procla-
mation an oath of allegiance was
merely a military exaction of an
obligation in favor of a belligerent
power against the enemy; and his
advice on the subject of a general
civil oath of allegiance, to be ex-
acted by the States, shows that he
understood the niceties of the sub-
ject as well as any casuist in or
out of Congress. This topic may
be dismissed by reverting here to
the fact, that in February, 1778,
Congress prescribed an oath or
110 THE FEDERAL CONSTITUTION. [BOOK 1.
the aid of their militia when wanted? At the period
when he addressed himself to this great undertaking
of forming a new army, for the third time, the ex-
isting force which he had with him in and around
New Jersey was about to be dissolved. The addi-
tional regiments of the regular line were to be raised
by the States, and upon them alone could he depend
for the supply of a new army, with which to com-
mence the campaign in the spring of 1777. He had
labored, he said, ever since he had been in the ser-
vice, to discourage all kinds of local attachments and
distinctions of country, denominating the whole by
the greater name of AMERICAN; but he had found
it impossible to overcome prejudices.
,Two causes especially embarrassed his efforts in
the formation of the new army; and both of them
show how powerful were the centrifugal forces of
our system at that period, and how little hold: that
great central name had taken upon the people of the
different States. One of these causes was the per-
sistence of’ some of the States in giving extra boun-
ties to encourage enlistments into their quotas of the
original eighty-eight battalions not yet raised. The
bounty allowed by Congress was twenty dollars to
every soldier enlisting into the new establishment for
aflirmation, to be taken by the offi—
cers of the army, and all others
holding oflice under Congress,
which was simply a renunciation
of allegiance to the King of Great
Britain, an acknowledgment of the
independence of the United States,
and a promise to support, main-
tain, and defend them against King
George HI. and his successors, and
to serve the United States in the
oflice mentioned with fidelity, and
the best skill and understanding of
the party taking the oath. J our-
nals, IV. 49.
1 Ante, p. 100
on. IV.] THE REVOLUTIONARY GOVERNMENT. 111
three years or during the war. The additional boun-
ty offered by Massachusetts was sixty-six dollars and
two thirds. There was thus an inducement of eighty-
six dollars and two thirds Offered to the men then
in the service of the United States, not to reenlist
in their old regiments, as fast as their time of ser-
vice expired, but to go to Massachusetts and enlist
in the fresh quotas which were forming in that State,
and which were to be afterwards mustered into the
continental service. The same inconsiderate and
unpatriotic policy was pursued in all the Eastern
States, and before the spring opened, the consequen-
ces began to be felt in the state of the new continen-
tal battalions which General Washington was en-
deavoring to procure from some of the Middle States,
and in which he would not sanction the allowance
of an extra bounty, regarding it as an indirect breach
of the union, and of the agreement entered into by
the delegates of the States in Congress to give a
bounty of twenty dollars only for service in the con
tinental army.1 The month of April arrived, and he
had not received a man of the new levies, except a
few hundreds from Jersey, Pennsylvania, and Vir-
ginia, while the few old regiments which remained,
after the dissolution of the army in January, were
reduced to a handful of men, the enemy being in
great force, and making every preparation to seize
upon Philadelphia.
Nor did the allowance of these irregular bounties
1 Letter to General Knox, February 11, 1777. Writings, IV. 316.
112 THE FEDERAL eoNsTITUTIoN. [BOOK 1.
help the States, in raising the old levies, as had
been anticipated. They rather caused the soldiers to
set a high price upon themselves, and to hold back
from enlisting; while the second cause, to which I
have alluded, as embarrassing the Commander-in-
chief, was a great hinderance to his efforts to plan
and carry out a campaign, having for its object the
general benefit of the whole Union.
This cause was the inability of many local author
ities to comprehend the necessity of such a campaign.
General Washington was, at this period, harassed by
numerous applications to allow the troops, which had
been raised in the States for the service of the conti-
nent, to remain for the defence of particular neighbor-
hoods against incursions of the enemy. Nothing,
he said on one of these occasions, could exceed the
pleasure which he should feel, if he were able to pro-
tect every town and every individual on the continent.
But as this was a pleasure which he never should
realize, and as the continental forces were wanted to
meet and counteract the main designs of the enemy
on the principal theatre of the war, he could not con-
sent to divide them and detach them to every point
where the enemy might possibly attempt an impres-
sion ; “for that,” he added, “would be in the end to
destroy ourselves and subjugate our country.”1
From the operation of these and other causes con-
nected with the political system of the country, the
army with which Washington was obliged to take
1 Letter to Governor Trumbull, See also Letter to Major-General
May 11,I 1777. Writings,IV. 413. Stephen, May24, 1777. Ibid.43l
\/
on. IV.] THE REVOLUTIONARY GOVERNMENT. 113
the field, in the spring of 1777, did not exceed five
thousand seven hundred and thirty-eight effective
men, exclusive of a small body of cavalry and artil-
lery.1 The consequence was, a necessary reliance
upon militia, to a great extent, throughout that sum-
mer. The battle of the Brandywine, fought with an
effective force of only eleven thousand men, includ-
ing militia, against a thoroughly disciplined army of
fifteen thousand British and Hessian troops, and
fought for the city of Philadelphia as a stake, was
lost on the 11th of September.2 The Congress broke
up on the 18th. Sir William Howe took possession
of the city on the 26th; and on the 27th, the Con-
gress reassembled at Lancaster. In a few days, they
removed to Yorktown, where their sessions continued
to be held for several months.
The position in which they found themselves,
amid the dark clouds which lowered around their
cause, seems to have recalled to their recollection the
Articles of Confederation, which had lain slumbering
upon their table since the 8th of April. On that
day, they had resolved that the report should be
1 Marshall’s Life of Washing-
ton, III. 102.
9 The exact numbers of the troops
on both sides, in this battle, are not
known. Sir William Howe esti-
mated the American force at 15,000,
including militia; and this number
is given in the Annual Register.
But the effective force of the Amer-
ican army was always, at this pe-
riod of the war, considerably less
than the total number; and Chief
VOL. 1. 15
Justice Marshall states it to have
been, on this occasion, 11,000, in-
cluding militia. The Annual Reg-
ister gives the number of the royal
army brought into action as 15,000.
Marshall supposes it to have been
18,000, when they landed on the
shores of the Chesapeake. Mar-
shall ’s Life of Washington, HI.
140, 141. Annual Register for
1777, XX. 127.
6 ML)
114 THE FEDERAL CoNsTITUTIoN. [BOOK I
taken into consideration on the following Monday,
and that two days in each week should be employed
on the subject, until it had been wholly discussed.
When the Monday came, it was postponed; and it
was only after they had been driven from Philadel-
phia by the approach of the enemy, that they seem
to have fully realized the fact, that, without a more
perfect union and a more efficient government, the
country could not be saved. As soon as they had
reassembled at Yorktown, after the urgent business
of the moment had been attended to, they passed a
resolve, on the 2d of October, that the Articles of
Confederation be taken into consideration the next
day, at eleven o’clock. The discussion did not actu-
ally commence, however, until the 7th of October;
but from that day it was continued until the 17th of
November, when the Articles, as they afterwards
went into operation, were adopted for recommenda-
tion to the States, and a circular letter was addressed
to the several legislatures, submitting the plan of a
Confederacy, and urging its adoption.
We are now approaching the period when the
American people began to perceive that something
more was necessary to their safety and happiness
than the formation of State governments ; — when
they found, or were about to find, that some digested
system of national government was essential to the
great objects for which they were contending; and
that, for the formation of such a government, other
arrangements than the varying instructions of difl'er
on. IV] THE REVOLUTIONARY GOVERNMENT. 115
ent colonies or states to a body of delegates were
indispensable. The previous illustrations, drawn from
the civil and military history of the country, have
been employed to show the character and operation
of the revolutionary government, the end of which
is drawing near. For we have seen that the great
purpose of that government was to secure the inde-
pendence of each of these separate communities or
states from the crown of Great Britain; that it was

instituted by political societies having no direct con- .
nection with each other except the bond of a com-
mon danger and a common object; and that it was
formed by no other instrumentality, and possessed
no other agency, than a "s'iifgle body of delegates
assembled in a congress. For certain great pur-
poses, and in order to accomplish certain objects of
common interest, a union of the people of the differ-
ent States had indeed taken place, bringing them
together -to act through their representatives; but
this union was now failing, from the want of defi-
nite powers; from the unwillingness of the people
of the country to acquiesce in the exercise of the
general revolutionary powers with which it was im-
pliedly clothed; and from the want of suitable civil
machinery. In truth, the revolutionary government
was breaking down, through its inherent defects, and
the peculiar infelicity of its situation. Above all,
it was breaking down from the want of a civil ex-
ecutive to take the lead in assuming and exercis-
ing the powers implied from the great objects for
which it was contending. Its legislative authority,
116 THE FEDERAL eoNsTITUTIoN. [BOOK I.
although defined in no written instruments or pub-
lic charters, was sufficient, under its implied general
powers, to have enabled it to issue decrees, directing
the execution, by its own agents, of all measures
essential to the national safety. But this authority
was never exercised, partly because the States were
unwilling to execute it, but chiefly because no ex-
ecutive agency existed to represent the continental
power, and to enforce its decrees.
It is a singular circumstance, that, while the revo-
lutionary government was left to conduct the great
affairs of the continent through the mere instrumen-
tality of a congress of delegates, and was thus failing
for the want of departments and powers, the States
were engaged in applying these great principles in
the organization and construction of popular gov-
ernments, under which they may be formed with
rapidity and ease, and which are capable of the
most varied adaptation to the circumstances and
wants of a free people.
The suppression of the royal authority throughout
the colonies, by virtue of the resolve of the Conti-
nental Congress passed on the 10th of May, 1776,
rendered necessary the formation of local govern-
ments, capable at once of answering the ends of
political society, and of continuing without interrup-
tion the protection of law over property, life, and
public order. Fortunately, as we have seen, the pre-
vious constitutions of all the colonies had accustomed
the people, to a great extent, to the business of gov-
on. 1v] 1 THE REVOLUTIONARY GOVERNMENT. 117
ernment; and, when the recommendation of the Con-
tinental Congress to the several colonies to adopt
such governments as would best conduce to their
happiness and safety was made immediately after the
first effusion of blood, it was addressed to civil socie-
ties, in which the people had, in different modes,
been long accustomed to witness and to exercise the
functions of legislation, and in all of which there
were established forms of law, of judicature, and of
executive power.
The new political situation in which they now found
themselves required, in many of the colonies, but
little departure from these ancient institutions. The
chief innovation necessary was, to bring into practi-
cal working the authority of the people, in place of
that of the crown of England, as the source of all
political power. The changes requisite to effect this
were of course to be made at once; the materials for
these changes existed everywhere, in the representa-
tive institutions which had been long a part of the
system of every colony since the first settlement of
the country. Thus, as we have seen, in all the pro-
vincial, the proprietary, and the charter governments,
the freemen of the colony had been accustomed to be
represented in the government, in some form; and
although those governments, with a few exceptions,
were under the direct or indirect restraint of the
crown, and’ could all be reached and controlled by
the exercise of arbitrary power, the practice of repre-
sentation, through popular elections, was everywhere
known and familiar. The old constitutions of some
.¢__ “- w... M
118 TRE FEDERAL CONSTITUTION. * [BOOK I.
of the colonies had also been highly democratic, ad-
mitting an election of the executive, as well as of the
legislature, directly by the people ;1 while, in others,
where the executive was appointed by the crown,
the Second or less numerous branch of the legisla-
ture had been elected by the people, either directly,
or indirectly through the popular assembly. The
foundations, therefore, for popular governments ex-
isted in all the colonies, and furnished the means for
substituting the new source of political power, the
will of the people, in the place of that of an exter-
nal sovereign.
But there were other materials, also, for the for-
mation of regular and balanced governments, with
nearer approaches to perfection and with far greater
completeness than a mere democracy can afford to
any people, however familiar they may be with the
exercise and the practice' of government. The peo-
ple of these colonies had been so trained as to be
able to apply those principles in the construction and
operation of government which enable it to work
freely, successfully, and wisely, while resting on a
popular basis. They were able to see, that the whole
of what is meant and understood by government is
comprehended in the existence and due operation
of legislative, executive, and judicial powers.2 They
had lived under political arrangements, in which
these powers had been distributed so as to‘ keep them
for the most part distinct from each other, and so as
1 Connecticut and Rhode Isl- 2 See John Adams’s letter to R.
and. H. Lee.
‘x.-
on. IV.] THE REVOLUTIONARY GOVERNMENT. 119
to mark the proper limitations of each. If, in some
instances, the same individuals had exercised more
than one of these powers, the distinctions between
the departments, and the principles which ought to
regulate such distinctions, had become known. The
people of the colonies, in general, therefore, saw that
nothing was so important, in constructing a govern-
ment with popular institutions, as to balance each of
these departments against the others, so as to leave
to neither of them uncontrolled and irresponsible
power. In general, too, they understood, and had
always been accustomed to the application of that
other fundamental principle, essential to a well-reg-
ulated liberty, the division of the legislative power
between two separate chambers, having distinct ori-
gins and of distinct constructions?
1 Three of the colonies, namely,
New Hampshire, South Carolina,
and Virginia, proceeded to form
constitutions of government before
the Declaration of Independence
was adopted, under a special rec-
ommendation given to each of them
by Congress, in the latter part of
the year 1775, addressed to the pro-
vincial convention, advising them
“to call a full and free representa-
tion of the people, to establish such
a form of government as in their
judgment will best promote the hap-
piness of the people, and most ef-
fectually secure good order in the
province during the continuance of
the present dispute between Great
Britain and the colonies.” (J our-
nals, I. 231, 235, 279.) In New
Hampshire, this suggestion was
carried out in January, 1776, by
the representatives of the people,
who had first met as a Provincial
Congress of deputies from the towns,
and then assumed the name and
authority of a “house of repre-
sentatives,” or “assembly ” of the
Colony; in which capacity they
proceeded to elect twelve persons
from the several counties, to form
a distinct branch of the legislature,
as a council. The council were to
elect their own presiding oflicer.
All acts and resolves, to be valid,
were required to pass both branches;
all public oflicers, except clerks of
courts, were to be appointed by
the two houses, and all money bills
were to originate in the popular
120 THE FEDERAL coNsTITuTIoN. [BOOK I.
But none of these ideas were applied, or were yet
thought of being applied, to the construction of a
government for the United States; and» it is there-
fore at this period that we are to observe the slow
progress making, through disaster and trial, to those
great discoveIies which led the way to the Consti-
tution, and that we are to mark the first of those
failures by which the people of America learnt the
bitter wisdom of experience. For the fate of the rev-
olutionaiy government presents the first illustration
in our history of the complete futility of a federa-
tive union, whose operation as a government should
oranch. In case the dispute with
Great Britain should continue long-
er than the year 1776, and the gen-
eral Congress should not give other
instructions, it was provided that
the council should be chosen by the
people of each county, in a mode to
be prescribed by the council and
house. This form of government
continued through the Revolution,
and until the year 1790, when a
new constitution was formed. (Pit-
kin’s History of the United States,
11. 294.) In South Carolina, the
Provincial Congress likewise re-
solved itself a “ general assembly,”
and elected a legislative council,
from their own body. By these
two bodies, acting jointly, an ex-
ecutive, styled a president, a com-
mander-in-chief, and a vice-presi-
dent, was chosen. The legisla-
tive authority was vested in the
president and the two houses. The
judiciary were elected by the two
houses and commissioned by the
president, and were to hold their
offices during good behavior, sub-
ject to removal on the address of
both houses. This form of gov
ernment remained until June,
1790, when a new constitution was
formed by a convention. On the
15th of May, 1776, the Provincial
Convention of Virginia proceeded
to prepare a declaration of rights
and a constitution. The latter de—
clared that the legislative, execu-
tive, and judiciary departments
ought to be distinct and separate,
and divided the legislative depart-
ment into two branches, the house
of delegates and the senate, to be
called “ the General Assembly of
Virginia.” The members of the
house of delegates were chosen
from each county, and one from
the city of Williamsburg and one
from the borough of Norfolk.
The senate consisted of twenty-
four members, chosen from as
many districts. A governor and
CH. IV.]
THE REVOLUTIONARY GOVERNMENT. 121
consist merely in agreeing upon measures in a gen-
eral council, leaving the execution of those measures
to the separate members of the confederacy. But
this first illustration, we shall soon see, was not suffi-
cient to establish this truth in the convictions of the
American people.
Another and a severer trial awaited them. They
were not only to be taught once more that a mere
federative union was a rope of sand, but they were
also to be taught, that a government instituted upon
this principle for the purposes of a war, in which the
separate members of the confederacy had a common
council of state were chosen annu-
ally by joint ball'ot of both houses.
The legislature appointed the
judges, who were commissioned
by the governor, and held their
offices during good behavior.
Massachusetts was one of the colo-
nies whose situation rendered it
necessary to defer the formation of
a constitution for several years.
The transition in that colony from
the government of the King to a
government of the people took
place in the latter part of the year
1774 and the beginning of 1775.
The occurrences which led the
House of Representatives to re-
solve themselves into a Provincial
Congress have been stated in the
text of a previous chapter (ante,
p. 26). This body, which as-
sumed the control of the affairs of
the colony in October, 1774, first
assembled at Cambridge, where
they continued in session until the
10th of December, and then dis-
voL. I. 16
solved themselves, having first ap- ‘
pointed a Committee q‘ Safety to
manage the public concerns, until
a new Congress should be assem-
bled. On the 1st of February,
1775, a new Provincial Congress
met at Cambridge, adjourned to
Concord, and thence to Water-
town, and were dissolved on the
23d of May. On the 16th of May,
they wrote to the Continental Con-
gress, requesting their advice on
“ taking up and exercising the pow-
ers of civil government.” In their
letter they said, “ As the sword
should in all free states he subser-
vient to the civil powers, and as it
is the duty of the magistrate to
support it for the people’s neces-
sary defence, we tremble at having '
an army, although consisting of
our own countrymen, established
here, without a civil power to pro-
vide for’ and control them.” On
the 9th of June, the Continental
Congress passed a resolve, recom~
122 THE FEDERAL CONSTITUTION. [BOOK I.
Interest, would not answer the exigencies of a coun-
try like this, in time of peace. They were to learn,
by a trying experience, that the vast concerns of
peace are far more complex than the concerns of
war; that there were important functions of govern-
ment to be discharged upon this continent, which
only national power and national authority can ac-
complish, and that those functions are essential, not
only to the prosperity and happiness of this nation,
but to the continued existence of republican liberty
within the States themselves. They were to learn
this through a state of things verging upon anarchy;
amidst the decay of public virtue; the conflict of sec-
mending the election of a new Gen-
eral Assembly, under the directions
of the Provincial Congress, and that
the Assembly, when chosen, should
exercise the powers of government,
until a governor of the King’s ap-
pointment would consent to govern
the Colony according to its char-
ter. (Journals, 1. 115.) Mean—
while, a third Provincial Congress
met at Watertown, on the 31st of
May, and sat until the 19th. The
new General Assembly of the Prov-
ince, called “ the General Court,”
after its ancient usage, met in the
mode provided by the charter, and
elected a council. These two
branches continued to administer
the government, as nearly in the
spirit of the charter as might be,
without a governor, until 1780,
when a convention was called and
a constitution framed, similar in
all its main features to the present
constitution of the State. The
constitutions of the other States
were formed under the general rec-
ommendation of the resolve of Con-
gress of May 10th, 1776, addressed
to all the colonies, which contem-
plated the formation of permanent
governments, and dissolved the al
legiance of the people to the
crown of Great Britain. The con
stitutions of New Jersey, Mary-
land, Delaware, and North Caro-
lina were formed in 1776, and that
of New York in April, 1777; all
having three branches, the legisla-
tive, the executive, and the judi-
ciary, and all having a legislature-
consisting of two houses. The
constitution of Georgia was formed
in 1789, after the same general
model. That of Pennsylvania was
formed in 1776, with a legislature
consisting of a single branch, but
with the like division of the legis-
lative, executive, and judicial do.
partments. ~ '
on. IV.] - THE REVOLUTIONARY GOVERNMENT. 123
tional interests; and the almost total dissolution of
the bands by which society is held together. In this
state of things was to be at last developed the funda-
mental idea on which the Constitution of the United
States now rests, —— the political union of the people
of the United States, as distinguished from a union '
of the States of which they are citizens.
We have, therefore, now reached the first. stage
in the constitutional history of the country. What
has thus far been‘ stated comes to a single point,
the earliest great illustration of the radical defects
in a purely federative union. The next stage which
succeeds presents the second illustration of this
important truth.
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CHAPTER V.
NOVEMBER, 1777—MAROH, 1781.
ADOPTION OF THE ARTICLES OF CONFEDERATION.—CESSIONS OF WEST
ERN TERRITORY.—FIRST POLITICAL UNION OF‘ THE STATES.
WE have now to examine the period which inter-
vened between the recommendation of the Confedera-
tion by Congress, in November, 1777, and its final
adoption by all the States, in March, 1781 ; —— a pe-
riod of three years and a half. The causes which
protracted the final assent of the {States @mew
government, and the mode in which the various Ob-
j ections were at length obviated, are among the most
important topics in our constitutional history. But,
' beforewthuéyfiarré examined, the order of events by
which the Confederation finally became obligatory
upon all the States should here be stated.
The last clause of the Articles of ‘Confederation
directed that they should be submitted to the legis-
latures of all the States to be considered; and if
approved of by them, they were advised to authorize
their delegates to ratify the instrument in Congress;
upon which ratification, it was to become binding,
and conclusive. On the 20th of June, 1778, a call;
was made in Congress for the report of the delega-
D
on. v.] THE CONFEDERATION._ 125
tions on the action of their several States, and on the
26th of the same month a form of ratification was
adopted for signature. On the 9th of July, the rati-
fication was signed by the delegates of eight States;
New Hampshire, Massachusetts, Rhode Island, Con-
necticut, New York, Pennsylvania, Virginia, and
South Carolina. North Carolina ratified the Articles
on the 21st of July; Georgia on the 24th; New
Jersey on the 26th of November; Delaware on the
5th of May, 177 9; Maryland on the 1st of March,
1781. On the 2d of March, 1781, Congress met
under the Confederation.
Undoubtedly one of the causes which deferred the
full adoption of the Confederation to so late a period
after it was proposed, was the absence from Congress
of many of the most important and able men, whose
attention had hitherto been devoted to the affairs of
the continent, but who began to be occupied with
local affairs, soon after the extraordinary powers
were conferred upon General Washington. In Oc-
tober, 177 7, Hancock left the chair of Congress, for
an absence of two months; and the votes on a reso-.
lution of thanks to him, for his services as presiding
officer, show a great paucity of talent in Congress at
that moment.1 Twenty-two members only were pres-
1 Hancock retired on the 3181: moved, as soon as he con-
of October, for a short absence, eluded his address; but before the
after an unremitted service of question was put, it was moved
two years and five months in “ to resolve as the opinion of Con
the chair. A vote of thanks was gress, that it is improper to thank
126 THE FEDERAL CONSTITUTION. [BOOK I
cut, and of these the only names much known to
fame, at that time or since, were those of Samuel
Adams, John Adams, and Elbridge Gerry of Massa-
chusetts, the two Lees of Virginia, Hayward and
Laurens of South Carolina, and Samuel Chase of
Maryland. Franklin, Arthur Lee, and Silas Deane
were then in France. Patrick Henry was Governor
of Virginia. Mr. Jefferson was in the legislature of
Virginia, having left Congress in September, in or-
der, as he has himself recorded, to reform the legis-
lation of the State, which, under the royal govern-
ment, was, he says, full of vicious defects? Mr.
Madison was also in the legislature of his native
State, a young man of great promise, but unknown
at that time as a continental statesman. He entered
Congress in March, 1780.
In the year 1778, when the delegations were called
upon for reports on the action of their several States
upon the Confederation, and when the first objections
to the Articles were to be encountered, Hancock had
returned to Congress. Samuel Adams and Elbridge
Gerry were among his colleagues from Massachusetts.
Mr. John Adams was in Europe,_as Commissioner of
the United States to the Court of France. Dr. Frank-
lin was still abroad. Richard Henry Lee of Virginia,
Mr. Laurens and Mr. Hayward of South Carolina,
Roger Sherman, Samuel Huntington, and Oliver
any president for the discharge of and five States voted in the aflirm-
the duties of that ofiice ”; and it is ative, three in the negative, and
a curious fact, that on this motion the delegation of one State was
the States were equally divided. divided. Journals, III. 465-467
The previous motion was then put, 1 Writings of J efi'erson, I. 29
on. V] THE CONFEDERATION. 127
Wolcott of Connecticut, and Robert Morris of Penn-
sylvania, were present. The rest of the members,
with one brilliant exception, were not men of great
distinction, influence, or capacity. That exception
was Gouverneur Morris, who came into Congress
in January of this year, with a somewhat remarkable
youthful reputation, acquired in the public councils
of New York. a '
When this Congress is compared with that of the
year 1776, and it is remembered that the Declaration
of Independence bears the names of John Adams
and Robert Treat Paine of Massachusetts, Francis
Hopkinson of New Jersey, Benjamin Rush and Dr.
Franklin of Pennsylvania, Caesar Rodney of Dela-
ware, Samuel Chase of Maryland, George Wythe,
Thomas Jefferson, and Benjamin Harrison of Vir-
ginia, William Hooper of North Carolina, and
Edward Rutledge and Arthur Middleton of South
Carolina, ——none of whom were now present, -—we
perceive at once a striking difference in the two
bodies. This difference was not unobserved by those
who were then deeply interested in watching the
course of public affairs. More than once it filled
Washington with dark forebodings ;1 and in the
early part of the year 1778, it had attracted the
notice of Hamilton, whose vigilant comprehension
surveyed ‘the whole field of public affairs, and de-
tected the causes of every danger that threatened the“
health of the body politic.2
1 Writings of Washington, V. 2 “ America once had a repre-
326, 327, 350. sentation that would do honor to
128
[BOOK 1.
THE FEDERAL CONSTITUTION.
The objections made by the legislatures of several
of the States to the Articles of Confederation were
found, when examined, to consist almost entirely of
propositions for mere verbal amendments, chiefly for
the purpose of rendering the instrument more clear
All of these amendments were rejected. Some of the
any age or nation. The present
falling off is very alarming and
dangerous. What is the cause‘?
and How is it to be remedied? are
questions that the welfare of these
States requires should be well at-
tended to. The great men who
composed our first council,—- are
they dead, have they deserted the
cause, or what has become of them?
' Very few are dead, and still fewer
have deserted the cause : they are
all, except the few who still remain
in Congress, either in the field, or
in the civil ofiices of their respec-
tive States; far the greater part
are engaged in the latter. The
only remedy, then, is to take them
out of these employments, and re-
turn them to the place where their
presence is infinitely more impor-
tant. Each State, in order to pro-
mote its own internal government
and prosperity, has selected its best
members to fill the oflices within
itself, and conduct its own affairs.
Men have been fonder of the emol-
uments and conveniences of being
employed at home; and local at-
tachment, falsely operating, has
made them more provident for the
particular interests of the States to
which they belonged, than for the
common interests of the Confedera-
of. This is a most pernicious mis
take, and must be corrected. How-
ever important it is to give form
and efiiciency to your interior con
stitutions and police, it is infinitely
more important to have a wise gen-
eral council; otherwise, a failure
of the measures of the Union will
overturn all your labors for the ad-
vancement of your particular good,
and ruin the common cause. You
should not beggar the councils of
the United States to enrich the ad-
ministration of the several mem-
bers. Realize to yourself the con—
sequences of having a Congress de-
spised at home and abroad. How
can the common force be exerted,
if the power of collecting it be put
in weak, foolish, and unsteady
hands? How can we hope for suc-
cess in our European negotiations,
if the nations of Europe have no
confidence in the wisdom and vigor
of the great continental govern-
ment’! This is the object on which
their eyes are fixed; hence it is,
America will derive its importance
or insignificance in their estima-
tion.” Letter by Hamilton to
George Clinton, written from the
head-quarters of the army, Febru-
ary 13, 1778. WVritings of Wash-
ington, V. 508.
on. V.) THE CONFEDERATION. 129
States objected to the rule for apportioning the taxes
and forces to be raised by the States for the service
of the Union; but Congress rejected every proposi-
tion to‘ alter it, as it was believed to be impossible
that any other rule should be agreed upon.
But there was an objection made by the State of
New Jersey, which should be particularly noticed .
here, because it foreshadowed the great idea which
the Constitution of the United States afterwards em-
bodied. This objection was, that the Articles of
Confederation contained no provision by which the
foreign trade of the country would be placed under
the regulation of Congress. The sixth of the Arti-
cles of Confederation declared, that no State should ‘
levy any imposts or duties, which might interfere
with any stipulations entered into by the United
States with any foreign power pursuant to the trea-
ties already proposed to the courts of France and
Spain; while the ninth article declared that no treaty
of commerce should fie made by the United States,
whereby the legislative power of the respective States
should be restrained from imposing such imposts and
duties on foreigners as their own people were sub-
j ected to, or from prohibiting the exportation or im-
portation of any species of goods or commodities
whatsoever. The effect of these provisions was sim-
ply to restrain the States from laying imposts which
would interfere with the then proposed treaties; in
all other respects, the foreign trade of each State was
left to be regulated by State legislation.
van. 1. 1'7
130 THE FEDERAL CONSTITUTION. [BOOK 1
The legislature of New Jersey, in a very able me.
morial, laid before Congress on the 25th of June,
17 78, declared that the sole and exclusive power of
regulating the trade of the United States with foreign
nations ought to, be clearly vested in I the Congress,
and that the revenue arising from duties and customs
Ought to be appropriated to the building and support
of a navy for the protection of trade and the defence
of the coasts, and to other public and general pur-
poses, for the common benefit of the States. They
suggested that a great security would be derived to
the Union, from such an establishment of a com-
mon and mutual interest? But this suggestion was
both premature and tardy. It was premature, be-
cause the States had not yet learned that their con-
trol over foreign commerce must be surrendered, if
they would avoid the evils of perpetual conflict with
each other; and it came too late, because the Arti-
cles of Confederation were pr‘actically incapable of
1 Journals, IV. 269, 270. This
. wise and well—considered document
contained many other very impor-
tant suggestions; among which
was that of an oath, test, or decla-
ration to be taken by the delegates
in Congress, previous to their ad-
mission to their seats. “It is indeed
to be presumed,” said the memo-
rial, “ that the respective States
will be careful that the delegates
they send to assist in managing the
general interests of the Union, take
the oaths to the government from
which they derive their authority:
but as the United States, collec-
tively considered, have interests as
well as each particular State, ,we
are of opinion, that some test or
obligation, binding upon each dele-
gate while he continues in the
trust, to consult and pursue the
former as well as the latter, and
particularly to assent to no vote or
proceeding which may violate the
general confederation, is necessary.
The laws and usages of all civilized
nations evince the propriety of an
oath on such occasions, and the
more solemn and important the de-
posit, the more strong and explicit
ought the obligation to be.”
ca. v.] THE OONEEDERATION. 131
amendment, at the period when the suggestion was
made?
The great obstacle, however, to the adoption of the
Confederation, which delayed the assent of several of
the smaller States for so long a period, was the claim
of some of the larger States to the Vacant lands lying
within what they considered their rightful bounda-
ries. The boundaries of the great States, as fixed by
their charters derived from the crown of England,
extended, in terms, “ to the South Sea,” and each of
these States, as successor, by the Revolution, to the
crown, with regard to territorial sovereignty, claimed
to own both the urisdiction and the property of all
the crown lands within its limits. This, claim was
strenuously resisted by Rhode Island, Delaware, New
Jersey, and Maryland. They insisted that Congress
ought to have the right to fix the boundaries of the
States whose charters stretched to such an indefinite
extent into the Western wilderness, and that the un-'
occupied lands ought to be the property of the whole
Union; since, if the independence of the country’
should be finally established, those lands would have
been conquered from the crown of England by the
common blood and treasure of all the States. The
effect of a tacit recognition of the claims of the great
States upon the welfare of such a State as Maryland,
through the absence from the Articles of Confedera-
1 Three States only voted in fa- voted against them, and one was
vor of adopting any of the sugges- divided. Journals, IV. 272.
tions made by New Jersey: six
132 THE FEDERAL oons'rrru'rron. [BOOK 1.
tion of any provision on the subject, was strikingly
exhibited, by its legislature, in certain instructions
to their delegates in Congress, which were laid before
that body on the 21st of May, 1779. They pointed
out two consequences likely to result from a confir-
mation of the claim which Virginia had set up to
an extensive and fertile country; the one would be,
they said, directly injurious to Maryland, while the
other would be inconsistent with the letter and spirit
of the proposed Confederation. They supposed, on
the one hand, that a sale by Virginia of only a small
proportion of these lands would draw into her treas-
ury vast sums of money, enabling her to lessen her
taxes, and thereby to drain the less wealthy neigh-
boring State of its most useful inhabitants, which
would cause it to sink, in wealth and consequence,
in the scale of the confederated States. On the other
hand, they suggested that Virginia might, and prob-
ably would, be obliged to divide its territory, and to
erect a new State, under the auspices and direction
of the elder, from whom it would receive its form of
government, to whom it would be bound by some
alliance, and by whose counsels it would be influ-
enced. They declared that, if this were to take place,
it would be inconsistent with the letter and spirit of
the Confederation already proposed; that, if it were
to result in the establishment of a sub-confederacy,
an z'mperium in imperio, the State possessed of this
extensive dominion must then either submit to all
the inconveniences of an overgrown and unwieldy
government, or suffer the authority of Congress to
on. v.] - THE CONFEDERATION. 183
interpose at a future time, and lop off a part of its
territory to be erected into a new and fi‘ee state, and
admitted into a confederation on such conditions as
should be settled by nine States. If, they asked, it
should be necessary for the happiness and tranquilli-
ty of a State thus overgrown, that Congress should,
at some future time, interfere and divide its territory,
why should the claim to that territory be now made
and insisted upon"! Policy and justice, they urged,
alike required, that a count‘ry,—-unsettled at the com-
mencement of the war, claimed by the ‘British crown
and ceded to it by the treaty of Paris, -- if wrested
from the common enemy by the blood and treasure of
the thirteen States, should be considered as a com-
. mon property,'subject to be parcelled out by Congress
into free, convenient, and independent governments,
in such manner and at such times as their wisdom
might thereafter direct. Coolly and dispassionately
considering the subject, weighing probable inconven-
iences and hardships against the ‘sacrifice of just and
essential rights, they then instructed their delegates
to withhold the assent of Maryland to the Confed-
eration, until an article or articles could be obtained
in conformity with these views.1
Against this proposition, the State of Virginia,
which had already ratified the Articles of Confedera-
tion, so remonstrated, that there appeared to be no
prospect of reconciling the difficulty. At this junc-
ture the State of New York came forward, and by an
1 Secret Journals, I. 433.
134 THE FEDERAL CONSTITUTION. [BOOK I.
act of its legislature, passed on the 19th of February,
1780, authorized its delegates in Congress to limit
the western boundaries of the State, and ceded a
portion of its public lands for the use and benefit of
Such of the United States as should become members
of the federal alliance. The motives upon which
this concession was expressly made had reference to
the formation of the Union, by removing, as far as
depended upon the State of New York, the impedi
ment which had so long prevented it?
After they had received official notice of this act,
by a report made on the 6th of September, 17 80,
Congress pressed upon the other States, similarly sit-
uated, the policy of a liberal Surrender of a portion
of their territorial claims, as they could not be pre-
served entire without endangering the stability of the
general Confederacy; - reminding them how indis
pensably necessary it was to establish the Federal
Union on a fixed and permanent basis, and on prin-
ciples acceptable to all its respective members,— how
essential it was to public credit and confidence, to the
support of the army, to the vigor of the national
councils, to tranquillity at home, to reputation abroad,
and to the very existence of the people of America
as a free, sovereign, and independent people. At the
same time, they earnestly requested the legislature of
the State of Maryland to accede to the Confederation.2
That State was not without examples of patriotic
confidence among her Smaller Sister States. As
1 Secret‘ Journals, I. 440. ‘3 Ibid. 442.
on. V] THE OONEEDERATION. 135
early as the 20th of November, 1778, New Jersey
had led the way to a generous trust on the part of
the States which still remained out of the Union.
She declared that the Articles of Confederation were
in divers respects unequal and disadvantageous to
her, and that her objections were of essential moment
to the welfare Edd happiness of her people; yet, con-
vinced of present necessity of acceding to the
confederacy proposed, feeling that every separate and
detached interest ought to be postponed to the gen-
eral good of the Union, and firmly believing that
the candor and justice of\the several States would,
in due time, remove the inequality of which she com-
plained, she authorized her delegates to accede to the
Confederation?
Delaware followed with not unequal steps. On
the 1st of February, 1779, she declared that, al-
though she was justly entitled to a right, in com-
mon with thp other members of the Union, to that
extensive tract .of country lying to the westward of
the frontiers of the United States, gained by the
blood and treasure of all, and therefore proper to
become a common estate, to be granted out on terms
beneficial to all; yet, for the same reasons, and from
the same motives with those announced by New
Jersey, and with a like faith in the sense of ustice
of her great confederates, she ratified the Articles
of Confederation.2 '
These examples were not without influence upon
1 Secret Journals, I. 421. ' 2 Ibid. 424.
O
136 THE. FEDERAL CONSTITUTION. [BOOK 11
the councils of patriotic Maryland. On the 30th of
January, 1781, her legislature passed an act, the pre-
amble of which commences with these memorable
words: “Whereas it hath been said, that the common
enemy is encouraged, by this State not acceding to
the Confederation, to hope that the union of the
sister States may be dissolved; and they therefore
prosecute the war in expectation of an event so dis-
graceful to America; and our friends and illustrious
ally are impressed with an idea, that the common
cause, would be ‘promoted by our formally acceding
to the Confederatioii: This General Assembly, con-
scious that this State hath, from the commencement
of the war, strenuously exerted ,herself in the com
mon cause, and fully satisfied that, if no formal con
federation were to take place, it is the fixed determi-
nation of this State to continue her exertions to the
utmost, agreeable to the faith pled' ed in/the, [@1011 ;'
-- from an earnest desire to 00513;}; the affection‘;
of the sister States, to convince all the woirllvdbf our
unalterable resolution to support the independence
of the United States, and the alliance with his most
Christian Majesty, and to destroy for ever any ap-
prehension of our friends, or hope in our enemies, of
this State being again united to Great Britain; —
Be it enacted,” &c. The act then proceeded to adopt
and ratify the Articles of Confederation, relying on
the justice of the other States to secure the interests
of the whole in the unoccupied Western territory.1
1 Secret Journals, 1. 445.
on. v.] THE oonrnnsm'rrou. ' 137
As soon as this act of Maryland was laid before
Congress, the joyful news was announced to the
country, that the Union of the States was consum-
mated under the written instrument, which had been
so long projected. The same month which saw the
completion of this Union witnessed a cession by
Virginia to the United States of all her claims 'to
lands northwest of the river Ohio; but the cession
was not finally completed and accepted until the
month of March, 1784:. This vast territory, now
the seat of prosperous and powerful‘ States, came
into the possession of the United States, under a
provision made by Congress, that such lands should
be disposed of for the common benefit of 'the United
States, and should be settled and formed into distinct
republican States, to‘ become members of the Federal
Union, with the same rights of sovereignty, freedom,
and independence as the other States. ,
The historian who may, in any generation, re-
cord these noble acts of patriotism and concession,
should pause and contemplate the magnitude of the
. event with which they were connected. He should
pause, to render honor to the illustrious deeds of
that great community, which first generously with-
drew the impediment of its territorial claims; andv
to the no less gallant confidence of those smaller
States, which trusted to the future for the final
and complete removal of the inequality of which
Maw
they complained. ‘ He should render honor to the .
State of New York, ‘for the surrender of a territory
to which she believed her legal title to be complete;
von. 1. , 18
138 THE FEDERAL CONSTITUTION. [BOOK 1.
a title which nothing but the paramount equity of the
claims of the whole Confederacy ought to have over-
come. That equity she acknowledged. She threw
aside her charters and her title-deeds; she ceased to
use the language of royal grants, and discarded the
principle of succession. She came forth frOm among
her parchments into the forum of conscience, in pres-
ence of the whole American people; and — recog-
nizing the ustice of their claim to territories gained
by their common efforts — to Secure the ' estimable
blessings of union, for their éOod: ahd / r her own,
she submitted to the national , the determination
of her western boundaries, and iievoted to the national
benefit her vast claims to unoccupied territories.
Equal honor should be rendered to New Jersey,
to Delaware, and to Maryland. The two former,
without waiting for the action of a single State
within whose reputed limits these public domains
were situate, trusted wholly to a future sense of
justice, and ratified the Union in the confidence
that justice would be done. The latter waited; but
only until she saw that the common enemy was
encouraged, and that friends were disheartened, by
her reserve. Seeiiig this, she hesitated no longer,
but completed the union of the States before Vir-
ginia had made the cession, which afterwards so
nobly justified the confidence that had been placed
in her? ‘\
. l l’?
1 After the Confederation had of Mr. Justice Story, “this great
thus been formed, by subsequent source of national dissension was
‘cessions of their claims by the at last dried up.”
other’ States, to use the language
Q
UH. v] THE CONFEDERATION. 139
The student of American constitutional history,
therefore, cannot fail to see, that the adoption of the
first written constitution was accomplished through
great and magnanimous sacrifices.
dations of the structure of government since raised
rest upon splendid concessions for the common weal,
made, it is true, under the stern pressure of war, but
made from the noblest motives of patriotism. These
concessions evince the progress which the people of the United States were then making towards both a national character and a national feeling. They
show that, while there were causes which tended to
keep the States apart, - the formation of State con-
stitutions, the conflicting interests growing out of the
inequalities ' of these different communities, and the
previous want of a national legislative power,—- there
were still other causes at work, which tended to draw
together the apparently discprdant elements, and to
create a union in which should be bound together,
as one nation, the populations which had hitherto
known only institutions of a local character. The
time was indeed not come, when these latter tenden-
cies could entirely overcome the‘ former. It was not
until the trials of peace had tested the strength and
efficiency of a system formed underYthelrials of war,
--'when another and a severer conflict between na-
tional and local interests was TcTshake the republic
to its centre, -- that a national government could
be formed, adequate to all the exigencies of both.
Still, the year 1781 saw the‘ establishment of the
Confederation, caused by the necessities of
The Very foun-
140 THE FEDERAL CONSTITUTION. [BOOK I
defence against an invading enemy. But it was
accomplished only through the sacrifice of great
claims; and the fact that it was accomplished, and
that it led the way to our present Constitution,
proves at once the wisdom and the patriotism of
those who labored for it.
The great office of the Confederation, in our politi-
cal history, will be a proper topic for consideration,
after the analysis of its provisions. But we should
not omit to observe here, that, when the union of the
States was thus secured, the motives on vwhich it was
formed, and the concessions by which it was accom-
panied and followed, created a vast obstacle to any
future dissolution. The immediate object of each
State was to obtain its own independence of the
crown of Great Britain, through the united, and
therefore more powerful, action of all the States.
But, in order to effect such a union, that immense
territory, over which, in the language of Maryland,
“ free, convenient, and independent governments ”
were afterwards to be formed, was to be ceded in
advance, or to be impliedly promised to be ceded, to
the use and benefit of the whole confederacy. A
confederacy of states, which had become possessed of
such a common property, was thus bound together
by an interest, the magnitude and force of which
cannot now be easily estimated. The Union might
incur fresh dangers of dissolution, after the war had
ceased; its frame of government and its legisla-
tive power might prove wholly inadequate to the na-
tional wants in time of peace; the public faith might.
cs. v.1 Tun CONFEDERATION. 141
be prostrated, and the national arm enfeebled ; -
still, while the Confederacy stood as the great trustee
of property large enough for the accommodation of
an empire, a security existed against its total destruc-
tion. No State could withdraw from the Confedera-
tion, without orfeiting its interest in this grand pub-
lic domain; a (1 no human wisdom could devise a
satisfactory distribution of property ceded as a com-
mon fund for the common benefit of sovereign States,
without any fixed ratio of interest in the respective
beneficiaries, and without any clear power in the gov-
ernment of the Confederation to deal with the trust
itself.1
1 One of the great inducements
to the adoption of the Constitution
of the United States was to give
the general government adequate
constitutional power to dispose of
the Western territory and to form
new States out of it. Congress,
under the Confederation, had no
express authority to do this, al-
though they proceeded both to dis
pose of the lands and to erect new. '
States, by the Ordinance of 1787:
See The Federalist, No. 38, 42,
43. Story’s Commentaries on the
Constitution, III. 184 - 190, lst
edition. -
CHAPTER VI.
Nn'ruitm AND POWERS OF THE CONFEDERATION.
THE nature of the government established by the
Articles of Confederation can be understood only by
an analysis of their provisions. For this purpose,
the instrument must here be examined with reference
to three principal topics: first, the union which it
established between the different members of the
Confederacy; second, the form of the government
which it created; and third, the powers which it con-
ferred, or omitted to confer, upon that government.
I. The parties to this instrument were fi'ee, sover-
eign, and independent political communities, — each
possessing within itself all the powers of legislation
and government, over its own citizens, which any po-
litical society can possess. But, by this instrument,
these several States became united together for cer-
tain purposes. The instrument was styled, “Article
of Confederation and Perpetual Union between th .
States,” and the political body thus formed was en-
titled “ The United States of America.” The Arti-
cles declared - as would, indeed, be implied, in such
circumstances, without any express declaration ——
on. vI.] THE OONEEDERATION. 143
that each State retained its sovereignty, freedom,
and independence, and every power, jurisdiction, and
right not expressly delegated by the instrument itself
to the United States in Congress assembled. The
nature and objects of this union were described as a
firm league of friendship between the States, for their
common defence, the security of their liberties, and
their mutual and general welfare; and the parties
bound themselves to assist each other against all
force offered to or attacks made upon them, or any
of them, on account of religion, sovereignty, trade, ‘or
under any pretence whatever. i
It was also provided, that the free inhabitants of
each State should be entitled to all the privileges of
free citizens in the several States ;1 that there should
be an open intercourse and commerce between the
different States; that fugitives from justice from one
State to another should be delivered up; and that
full faith and credit should be given in each State to
the records, acts, and judicial proceedings of every
other State.2
II. The government established by the Articles
of Confederation consisted of a single representative
1 That is to say, that a citizen
or any State might go and reside
in any other State, and be there en-
titled to all the privileges of a citi-
zen of that State.
dered in any other State, properly
authenticated, it should be admit
ted that such a law had been passed
or such a judgment rendered in the
State whose act it purported to be,
2 The meaning of this is, that,
on the production in any State of a
law passed or of a judgment ren-
and that all the legal consequences
should follow.
144 THE FEDERAL CONSTITUTION. [BOOK I.
body, called a General Congress. In this body were
vested all the powers, executive, legislative, and judi-
cial, granted to the United States. The members of
it were to be chosen by the States, in such manner
as the legislature of each State might determine; no
State to be represented by more than seven delegates,
or by less than two. No delegate was eligible for
more than three years in a period of six; and no
delegate could 'hold any office of emolument under
the United States. Each State was to maintain its
own delegates, and in the determination of questions,
the voting was to be by States, each State having one
vote.
III. It snould be remembered, that the objects
and purposes of the Confederation related chiefly to
the defence of the States against external attacks;
and it was, therefore, as it purportedto be, a league
for mutual defence and protection, through the com-
bined powers of the whole, operating in certain forms
and under certain restrictions. For the manner in
which this new authority was to be exercised, we are
to look at the powers conferred upon “the United
States in Congress assembled.” These powers related
to external and to internal affairs.
With regard to the external relations of the coun-
try, Congress was invested with the sole and exclu-
sive right of determining on peace and war, unless in
case of an invasion of a State by enemies, or an im-
minent danger of invasion by Indians; of sending
and receiving ambassadors ; of ‘entering into treaties
\
on. v1.1 THE CONFEDERATION. 145
and alliances, under the limitation that no treaty of
commerce could be made, which would have the
effect to restrain the legislature of any- State from
imposing such imposts and duties on foreigners as
their own people were subj ected. to, or which would
operate to prohibit the exportation or importation
of any commodity whatever. Congress was also in-
vested with power to deal with all captures and
prizes made by the land or naval forces of the United
States; to grant letters of marque and reprisal in]
times OfQead‘e“? and to establish courts for the trial
of piracies and felonies committed on the high seas,
and for determining appeals in cases of capture.
With regard to internal affairs, Congress was in-
vested with power to decide, in the last resort, on
appeal, all disputes between two or more States, con-
cerning boundary, jurisdiction, or any other cause;
and also all controversies concerning land-titles,
where the parties claimed under different grants of
two or more States before the settlement of their
jurisdiction; but no State was to be deprived of
territory for the benefit of the United States. Con-
gress was also invested with the sole and exclusive
right and power of regulating the alloy and value of
coin strwqckmby their authority, or by that of any of
the United States; of fixing the standard of weights
and measures throughout the United States; of reg-
ulating the trade and managing all affairs with the
Indians, who were not members of any State, pro-
vided that the legislative authority of any State, with-
in its own limits, should not be infringed or violated;
VOL. 1. 19
146 THE FEDERAL CONSTITUTION. [BOOK 1.
of establishing and regulating post-offices from one
State to another, and exacting postage to defray the
expenses; of appointing all oflicers of the land forces
in the service of the United States, and of making
rules for the government and regulation of the land
and naval forces, and directing their operations.
Congress was also invested with power to appoint
a “committee of the States,” to sit in the recess of
Congress, to consist of one delegate from each State,
and other committees and civil officers, to manage
the general affairs under their direction; to appoint
one of their number to preside, but authorizing no
person to serve in the office of president more than
one year in a term of three years; to ascertain and
appropriate the necessary sums for the public service;
to borrow money and emit bills on the credit of the
United States; to build and equip a navy; and to
agree upon the number of land forces and make
requisitions upon each State for its quota, in pro-
portion to the numbers of white inhabitants in such
State. The legislature of each State wasté'appoint
the regimental officers, enlist the men, and clothe,
arm, and equip them, at the expense of the United
States.
Such were the powers conferred upon Congress by
the Articles of Confederation. But the restrictions
imposed, in the same instrument, greatly qualified
and weakened, and in fact almost rendered nugatory,
the greater part of them. It was expressly provided,
that Congress should never engage in a war; nor-
grant letters of marque or reprisal in time of peace;
an. WE] THE OONEEDERATION. 141}
nor enter into any treaties or alliances; nor coin
money or regulate its value; nor ascertain the sums
of money necessary for the public purposes; nor
emit bills; nor borrow money on the credit of the
United States; nor appropriate money‘; nor agree
upon the number of Vessels for the navy, or the num-
ber of land or sea forces to be raised; nor appoint a
commander-in-chief of the army or navy; —” unless
pine States should assent to the same. The Z165-
mittee of the States authorized to sit during the
recess of Congress could not do any of these things,
for the assent of nine States could not be delegated.
The revenues of the country were left by the Arti-
cles of Confederation wholly in the control of the sep»
arate States. It was provided, that all charges of war,
and all other expenses for the common defence or
general welfare, should be defrayed out of a common
treasury; but this treasury was to be supplied, not
by taxes, duties, or imposts, levied by or under the
authority of Congress, but by taxes to be laid and
levied by the legislatures/of the several States, within
such time as might be fixed by Congress. The
amount to be furnished by each State was in propor-
tion to the value of the land within its limits granted
or surveyed, and the buildings and improvements
thereon, to be estimated according to the mode pre-
scribed by Congress. The sole means, therefore,
which the Confederation gave to Congress of sup-
plying the treasury of the United States, 'was to vote
What sum was wanted, and to call upon the legisla-
ture of each State to pay in its proportion within a
O
148 THE FEDERAL CONSTITUTION. [BOOK I.
given time. The commerce of the country was left
entirely within the control of the State legislatures;
rendering it the commerce of thirteen different States,
each of which could levy what duties it saw fit upon
all exports and imports, provided they did not inter-
fere with any treaties then proposed, or touch the
property of the United States, or that of any other
State. The United States had no power’ of taxation,
direct or indirect.
The Articles of Confederation were also entirely
without any provision for enforcing the measures
which they authorized Congress to adopt for the gen-
eral welfare of the Union. It was declared in the
instrument, that every State should abide by the de-
terminations of Congress on all the questions over
which the instrument gave that body control; that
the Articles should be inviolably observed by every
State; that the Union should be perpetual; and that
no alterations should be made in any of the Articles,
unless agreed to by Congress, and confirmed by the
legislature of every State. But these declarations,
however strong and emphatic in their terms, only
made the Confederation in fact, as in name, a league
or compact between sovereign States; for it gave the
government of the Union no power to enforce its
own measures or laws by process upon the persons
of individuals, and consequently any party to the
instrument could infringe any or all of its provisions,
without any other consequence than a resort to arms
by the general Confederacy, which would have been
civil war.
ca. v1.1 THE CONFEDERATION. 149
These, with some restrictions upon the power of
the States ‘in regard to the making of treaties, en-
gaging in war, sending ambassadors, and some other
topics, were the main provisions of the Articles of
Confederation; and under the government thus con-
stituted, the United States, on the second day of
March, 1781, entered upon a new era of civil polity,
and commenced a new existence, under somewhat
happier auspices than they had known before.
It will be seen, in the further development of the
period which followed the establishment of this Con-
federation, down to the calling of the Convention
which framed the Constitution, that what I have
called the great office of the Confederation, in our
political system, was indeed a function of vast impor-
tance to the happiness of the American people, but,
at the same time, was one that was necessarily soon
fulfilled, to be followed by a more perfect organiza-
tion for the accomplishment of the objects and the
satisfaction of the wants which it brought in its
train. This oflice of the Confederation was, to de-
monstrate to the people of the American States the
practicability and necessity of a more perfect union.
The Confederation showed to the people of these
separate commimities, that there were certain‘ great
purposes of civil government, which they could not
discharge by their separate means; that independence
of the crown of Great Britain could not be achieved
by any one of them, unassisted by all the rest; that no
one of them, however respectable in population or re- .
sources, could be received and dealt with, by the gov,
[50 THE FEDERAL CONSTITUTION. [BOOK I
ernments of the world, as a nation among nations;
— but that, by union among themselves, by some po-
litical tie, which should combine all their resources in
the hands of one directing power, and make them, i!1
some practical sense, one people, it was possible for
them to achieve their independence, and take a place
among the nations. The Confederation made it man-
ifest, that these consequences could be secured. It
did not, indeed, answer all the purposes, or accom-
plish all the objects, which had been designed or
hoped from it: it was defective as a means; but it
taught the existence of an end, and demonstrated the
possibility of reaching that end, by showing that in
some form, and for some purposes, a union of the
States was both possible and necessary. It thus made
the permanent idea of union familiar to the people of
the different States. It did more than this. It created
a larger field for statesmanship, by creating larger in-
terests, to be managed by that higher order of men,
who could rise above local concerns and sectional
objects, and embrace within the scope of their vision
the happiness and welfare of a continent. It intro-
duced to men’s minds the great ideas of national
power and national sovereignty, as the agencies that
were to work out the difficult‘ results, which no local
power could accomplish; and, although these ideas
were at first vague and indefinite, and made but a
slow and diflicult progress against influences and
prejudices of a narrower kind, they were planted in
the thoughts of men, to ripen into maturity and
strength in the progress of future years. When the
on. VI.] THE CONFEDERATION. 151
eagle grasped in his talons the united shafts of pow-
er, and unfurled the scroll which taught that one
people could be formed out of many communities,
the destiny of America was ascertained?
1 The armorial bearings of the 20th of June, 1782. Journals,
United States were adopted on the V11. 395.
i
BOOK II.
THE CONSTITUTIONAL HISTORY OF THE UNITED
STATES, FROM THE ADOPTION OF THE ARTI
CLES OF CONFEDERAATION, IN 1781, TO THE PEACE
OF 1783.
vol 1. 20
CHAPTERI.
1781-1783.
REQUIsITIoNs.—CI.AIMs OF THE ARMY.—NEWBURGH AnnREssEs.-~
PEAcE PROCLAIMED.-—-THE ARMY nIsBANDEn.
THE interval of time which extends from the adop-
tion of the Articles of Confederation to the initiatory
steps for the formation of the Constitution, must, for
our purpose, be divided into two periods; that which
preceded and that which followed the peace of 1783;
in both of which the defects of the Confederation were
rapidly developed, and in both of which efforts were
made to supply those defects, by an enlargement of
the powers of Congress.‘ Our attention, however, will
be confined, in the pr‘esentBook, to the first of these
periods. ‘
Congress assembled, under the Confederation, on
the 2d of March, 1781, and the Treaty of Peace,
which put an end to the war and admitted the inde- _ '
pendence of the United States, was definitively signed
on the 3d of September, 1783, and was ratified and
proclaimed by Congress on the 14th of January, 1784.
Notwithstanding the solemn engagements into
which the States had entered with each other, under
156 THE FEDERAL CONSTITUTION. " [BOOK II.
the Articles of Confederation, the prospect of bring-i
ing the war to a close, through a compliance with
those obligations, was exceedingly faint, at the com-
mericement of the campaign of 17 82. The United
States had made a treaty of alliance with the king
of France, in 1778 ;1 and in pursuance of that treaty,
six thousand French troops arrived at Newport in
July, 1780, and in the Spring of 1781 joined the
American army near New York. The presence in
the country of a foreign force, sent hither by the
ancient rival of England, to assist the people of the
United States in their contest for independence,
encouraged an undue reliance upon external aid.
Many of the States became culpably remiss in com-
plying with the requisitions of Congress; and, al-
though they had so recently authorized Congress to
make requisitions, both for men and money, and
had provided the form in which they were to be
made, the adoption of the Articles of Confederation
had very little tendency to render the States prompt
to discharge the obligations which they imposed. In
October and November, 1781, Congress called upon
the States to raise their several quotas of eight mil-
lions of dollars, forw-the use of the United States, and
recommended to them to lay taxes for raising these
quotas separate from those laid for their own par-
ticular use, and to pass acts directing the collectors
of the taxes, intended for the use of the United'States,
to pay the same directly into the treasury of the
1 The treaty was concluded at ratified by Congress on the 5th of
Paris, February 6, 1778, and was May. Journals, IV 256, 257.
Cu. 1.] THE CONFEDERATION. 157
Union.1L In December of the same year, Congress
also called upon the States, with great urgency, to
complete their quotas of troops for the next cam-
paign.2
The aid of Washington was invoked, to influence
the action of the States upon these requisitions. On
the 22d of January, 17 82, he addressed a circular
letter to the governors of the States, to be laid be- ~
fore their respective legislatures, on the subject of
finance; reminding them how the whole army had
been thrown into a ferment twelve months before,
for the want of pay and a regular supply of clothing
and provisions; warning them that the recent suc-
cesses in Virginia, by the capture of Lord Cornwallis’s
army, might have a fatal tendency to cool the ardor
of the country in the prosecution of the war; assur-
ing them that a vigorous prosecution of that war
could alone secure the independence of the United
States; and urging them to adopt such measures as
would insure the prompt payment of the sums which
Congress had called for.3 A few days afterwards, he
addressed a similar letter to the States, on the subject
of completing their quotas of troops, in which he
told them that the continuance or‘ termination of the
war now rested on their vigor and decision; and that,
even if the enemy were, in consequence of their late
reverses, disposed to treat, nothing but a decidedly
superior force could enable us boldly to claim our
1 Resolves of October 30 and 2 Resolves of December 10
November 2, 1781. Journals, 1781. Journals, VII. 190.
VII. 167, 169. 3 Writings, ‘7111.226.
158 THE FEDERAL CONSTITUTION. [BOOK n.
rights and dictate the terms of pacification. “ And
soon,” he said, “might that day arrive, and we might
hope to enjoy all the blessings of peace, if we could
see again the same animation in the cause of our
country inspiring every breast, the same passion for
freedom and military glory impelling our youths to
the field, and the same disinterested patriotism per-
' vading every rank of men, that was conspicuous at
the commencement of this glorious revolution; and
I am persuaded that only some great occasion was
wanting, such as the present moment exhibits, to re-
kindle the latent sparks of that patriotic fire into
a generous flame, to rouse again the unconquera-
ble spirit of liberty, which has sometimes seemed
to slumber for a while, into the full vigor of ac-
tion.” 1
Notwithstanding these urgent appeals, the spring
of 1782 arrived, and the summer passed away, with-
out any substantial compliance by the States with the
requisitions of Congress for either men or money.
When Washington arrived in camp, in May, to com-
mence the campaign that was to extort from the
British government — now in the hands of a new
ministry, supposed to be more favorable to peace -—
the terms which he hoped might be procured, there
were less than ten thousand men in the Northern
army; and their numbers were not much increased
during the summer.2 Great and dangerous discon-
tents now existed in the army, both among officers
1 Writings, VIII. 5232, 235.
2 Sparks’s Life of Washington, p. 380.
CH. 1.] THE cONEEnERATIoN. 159
and soldiers, concerning the arrearages of pay; for,
as the prospects of peace became brighter, it seemed
to become more and more probable, that the army ._
would ultimately be disbanded without adequate pro-
vision for its claims, and that oflicers and men’would
be thrown penniless upon the world, unpaid by the
country whose independence they had achieved.
At ‘this period there occurred the famous proceed-
ings of the oflicers, called the .Newburgh Addresses,
on the subject of half-pay; and since the claims of
the oficers and soldiers, as public creditors of the
United States, are intimately connected with the con- '
stitutional history of the country, it is needful to give
here a brief account of them. /
The pay of the officers in the Revolutionary army
was originally established upon so low a scale, that
men with families dependent up on them could feel
little inducement to remain long in a service, the
close of which was to be rewarded only with a patent
for a few hundred acres of land in some part of the
Western wilderness. In the year 1778, it had be-
come apparent to Washington, that something must
be done to avert the consequences of the mistaken
policy on which Congress had acted with reference to
the army; and while at Valley Forge, - that scene
of dreadful suffering by the, army, — he wrote on
this subject to the President of Congress the first of
a series of most able and instructive letters, which
extend through the five following years?
1 Letter of April 10, 1778. Writings of Washington, V. 312
160 THE FEDERAL CONSTITUTION. [BOOK II.
On the 17th of April, after this first letter had
been laid before Congress, a resolution was moved,
that an establishment of half-pay be made for ofiicers,
who should serve during the war; to begin after its
conclusion.1 Four days afterwards, the sense of the
house was taken on the question , whether there
should be any provision made for the oflicers after
the conclusion of the war, and the affirmative was
carried, by the votes of eight States against founi
On the 26th of April, a proposition, that halflpay be
granted for life, to commence at the close of the war,
‘ passed by a majority of one State; six States voting
in the affirmative, five in the negative, and one being
divided.3 The next day, the value of this vote was
destroyed by a resolution, which provided that the
United States should have the right to redeem the
half-pay for life, by giving to the officer entitled six
years’ half-pay ;4 and on the 15th of May, Congress
substituted for the whole scheme a provision of half-
pay for seven years, taking away the option of half-
pay for life.5
This miserable and vacillating legislation shows
the unpopularity of the scheme of such an establish-
ment, although demanded alike by considerations of
1 Journals, IV. 221.
‘3 Ibid. 228, 229. The States
which voted in the negative were
Rhode Island, Connecticut, New
Jersey, and South Carolina.
3 Ibid. 243. The States voting
in the negative were Massachu-
setts, Rhode Island, Connecticut,
New Jersey, and South Carolina.
The State whose vote was divided
was Pennsylvania.
4 Ibid. 244. Under this resolve,
each ofiicer was entitled to receive
half-pay annually, for the term of
seven years after the conclusion of
war, if living.
5 Ibid. 288.
on. 1.1 THE oonEEnERATmN. 161
justice and policy.1 The spirit which, for a time,
actuated a large part of the people of this country
towards the men who were suffering so much in the
cause of national independence, evinces an extreme
jealousy for the abstract principles of civil liberty,
unmitigated by the generous virtues of justice and
gratitude. This spirit was duly represented in Con-
gress. The main arguments employed out of doors
were, that pensions were contrary to the maxims and
spirit of our institutions; that to grant half-pay for
life to the officers was establishing a privileged class
of men, who were to live upon the public for the rest
of their days; and that the officers entered the ser-
vice on the pay and inducements originally offered,
without any promise or prospect of such a reward.
This kind of impracticable adherence to a principle,
working in this instance the greatest injustice and
leading ultimately to a breach of public faith, was
the principal cause that prolonged the war, and
made it cost so much suffering, so much blood, and
so much treasure. The people of the United States
adhered so tenaciously to the principles and axi-
oms of freedom, that, even when they had under-
taken a war for their own security and independence
against a foreign foe, they would not establish a gov-
ernment with the power of direct taxation, or organ-
1 On the 21st of April, in the pay”;—an amendment which re-
resolution reported by a committee, veals very plainly the character of
the words “ an establishment of the popular objections. Journals,
half-pay for life ” were, on motion, IV. 228.
changed to “ a provision of half-
von. r. 21
162 TEE FEDERAL CONSTITUTION. [BOOK 11.
ize an army with suitable rewards for service. The
want of such a power in their government led to the
enormous emissions of paper money, which brought
with' them a long train of sufferings and disasters,
ending at last in national bankruptcy. The want of
justice to the army placed the civil liberty of the
country in imminent danger, and finally led to the
cruel oppression of men, whose valor had first won,
and whose patriotism then saved it from destruction.
In the six months which followed the vote of the
15th of May, 17 78, the provision which it had made
was found to be wholly inadequate, and General Wash-
ington, then at Philadelphia, again earnestly pressed
the subject upon the attention of Congress. On the
11th of August, 1779, a report from a committee on
this subject being under consideration, a motion was
made to amend it, by inserting a provision that the
half-pay granted by the resolve of the 15th of May,
1778, be extended so as to continue for life; and this
motion was carried by a vote of eight States against
four.1 On the 17th, Congress resolved that the con-
sideration of that part of the report for extending the
half-pay be postponed, and that it be recommended
to the several States that had not already adopted
measures for that purpose, to make such further pro-
vision for the officers and soldiers enlisted for the
war, who should continue in service till the estab-
lishment of peace, as would be an adequate compen-
sation for their dangers, losses, and hardships, either
1 Journals, V. 312.
on. 1.] THE OONEEDERATION 163
by granting to the officers half-pay for life and proper
rewards to the soldiers, or in such other manner as
might appear most expedient to the legislatures of
the several States?
Before the passage of this resolve, the State of
Pennsylvania had placed her officers upon an estab-
lishment of half-pay for life, and with the happiest
consequences. But no other State followed her ex-
ample; and in the autumn of 1780, it became neces-
sary for Washington to apply to Congress again?
At length, in consequence of his earnest and re-
peated appeals, a resolve was passed, on the 21st of
October, that the ofiicers who should continue in
service to the end of the war should be entitled to
half-pay during life, to commence from the time of
their reduction.3
From this time, therefore, the officers of the army
continued in the service, relying upon the faith of
the country, as expressed in the vote of the 21st of
October, 17 80, and believing, until they saw proof to
the contrary, that the public faith thus pledged to
them would be observed? But they were destined to
a severe disappointment; and one of the causes of
that disappointment was the adoption of the Articles
of Confederation. The very change in the constitu-
tional position of the country, from which the most
happy results were anticipated, and which undoubt-
1 Ibid.‘316, 317. 4 See General Washington’s let-
2 Writings of Washington, VII. ter to General Sullivan (in Con-
165, 246. gress), November 20, 1780. Writ
3 Journals, VI. 336. ings, VII. 297.
164 THE FEDERAL CONSTITUTION. [BOOK II.
edly cemented the Union, became the means by which
they were cheated of their hopes. The Congress of
1780, which had pledged to them a half-pay for life,
was the Revolutionary Congress; but the Congress
which was to redeem this pledge was the Congress
of the Confederation, which required a vote of nine
States for an appropriation of money, or a call upon
the States for their proportions. When the vote
granting the half-pay for life was passed, there were
less than nine States in favor of the measure; and
after the Confederation was established, the delegates
of the States which originally opposed the provision
could not be brought to consider it in its true light,—
that of a compact with the Officers. It was even con-
tended that the vote, having passed before the Con-
federation was signed and acted upon, was not Oblig-
atory upon the Congress under the Confederation, as
that instrument required the votes of nine States for
an appropriation of money. In this manner, men
deluded themselves with the notion, that a change in
the form of a government, or in the constitutional
method of raising money to discharge the obligations
of a contract, can dissolve those obligations, or alter
the principles Of justice on which they depend. The
States in the Opposition to the measure refused to be
coerced, as they were pleased to consider it, and in
the autumn of 1782, the oflicers became convinced
that they had nothing to hope for from Congress,
but a reference of their claims to their several States.‘
1 See the letter of General Lin- ington, cited by Mr. Sparks, VIII
ooln, Secretary at War, to Wash- 356.
cs. 1.] THE CONFEDERATION. . 165
In November, 1782, preliminary and eventual arti-
cles of peace were agreed upon between the United
States and Great Britain, by their plenipotentiaries.
Nothing had been done by Congress for the claims
of the army, and it seemed highly probable that it
would be disbanded without even a settlement of the
accounts *of the officers, and if so, that they would
never receive their dues. Alarmed and. irritated by
the neglect of Congress ; destitute of money and cred-
it and of the means of living from day to day; op-
pressed with debts; saddened by the distresses of their
families at home, and by the prospect of misery be-
fore them, —— they presented a memorial to Congress
in December, in which they urged the immediate
adjustment of their dues, and offered to commute the
half-pay for life, granted by the resolve of October,
1780, for full pay for a certain number of years, or
for such a sum in gross, as should be agreed on by
their committee sent to Philadelphia to attend the
progress of the memorial through the house. It is
manifest from statements in this document, as well
as from other evidence, that the officers were nearly
driven to desperation, and that their offer of commu-
tation was wrung from them by a state of public
opinion little creditable to the country. They recited
their hardships, their poverty, and their exertions in
the cause; and all that they said was fully borne out
by"s their great commander, in his‘personal remon-
strances with many of the members .of Congress.
The oflicers asserted, that many of their brethren,
who had retired on the half-pay promised by the re-
166 _ THE FEDERAL CONSTITUTION. [BOOK II.
solve of 17 80, were not only destitute of any effect-
ual provision, but had become objects of obloquy;
and they referred with chagrin to the odious view in
which the citizens of too many of the States endeav-
ored to place those who were entitled to that pro-
VlSlOIl.
But, from the prevailing feeling in Congress and in
the country, nothing better was to be expected than
a compromise in place of the discharge of a solemn
obligation; and this feeling no American historian
should fail to record and to condemn. If these men
had borne only the character of public creditors, a
state of public feeling which drove them into a com-
promise of their claims ought always to be severely
reprehended. But, beyond the capacity of public
creditors, they were the men who had fought the
battles which liberated the country from a foreign
yoke; who had endured every extremity of hardship,
every form of suffering, which the life of a soldier
knows; who had stood between the common soldiery
and the civil power; and often, at the hazard of their
lives, preserved that discipline and subordination
which the civil power had done too much to hazard.
They were, in a word, the men of whom their com-
mander said, that they had exhibited more virtue,
fortitude, self-denial, and perseverance, than had per-
haps been then paralleled in the history of ‘ human
enthusiasm. ‘
Painful, therefore, as it is, this lesson, of the wrong
that may be done by a breach of public faith, must be
read. It lies open on the page of history, and is the
OH. I. , THE coNEEnERATIoN. 167
case of those to whose right arms the people of this
country owe the splendid inheritance of liberty. All
real palliations should be sought for and admitted.
The country was poor: no proper system of finance
had been, or could be, developed by a government
which had no power of taxation; and the ideas and
feelings of the people of many of the States were pro-
vincial, and without the liberality and enlargement
of thought which comes of intercourse with the
world. But, after every apology has exhausted its
force, the conscientious student of history must mark
the dereliction from public duty; must admit what
the public faith required; and must observe the dan-
gerous consequences which attend, and must ever
attend, the breach of a public obligation.
The immediate consequences which followed, in
this instance, were predicted by General Washington,
who gave the clearest warning, in advance of the
oflicers’ memorial, of the hazards that would attend
the further neglect of their claims. But his warn-
ing seems to have been unheeded, or to have made
but little impression against the prevailing aversion
to touch the unpopular subject of half-pay. The
committee of the officers were in attendance upon
Congress during the whole winter, and early in
March, 17 83, they wrote to their constituents that
nothing had been done.
At this moment, the predicament in which Wash-
ington stood, in the double relation of citizen and
soldier, was critical and delicate in the extreme. In
the course of a few days, all his firmness and patriot-
168 THE FEDERAL CONSTITUTION. [BOOK II.
ism, all his sympathies as an officer, on the one side,
and his fidelity to the government on the other, were
severely tried. On the 10th of March, an anonymous
address was circulated among the ofiicers at N ew-
burgh, calling a meeting of the general and field
oflicers, and of one Officer from each company, and
one from the medical staff, to consider the late letter
from their representatives at Philadelphia, and to
determine what measures should be adopted to ob-
tain that redress of grievances which they seemed
to have solicited in vain. It was written with great
ability and skill.‘ It spoke the language of ured
feeling; it pointed directly to the sword, as the rem-
edy for injustice; and it spoke to men who were suf-
fering keenly under public ingratitude and neglect.
Its eloquence and its passion fell, therefore, upon
hearts not insensible, and a dangerous explosion
seemed to be at hand. Washington met the crisis
with firmness, but also with conciliation. He issued
orders forbidding an assemblage at ,the call of an
anonymous paper, and directing the Officers to assem-
ble on Saturday, the 15th, to hear the report of their
committee, and to deliberate what further measures
ought to be adopted as most rational and best calcu
1 The “ Newburgh Addresses ”
were written by John Armstrong,
(afterwards General Armstrong,)
then a young man, and aide-de-
camp to General Gates, with the
rank of Major. (Sparks’s Life of
Gouverneur Morris, I. 253. Unit—
ed States Magazine for January 1,
1823, New York.) The Style
of these papers, considering the
period when they appeared, is re-
markably good. They are writ
ten with great point and vigor of
expression and great purity of Eng-
lish. For the purpose for which
they were designed, --a direct ap-
peal to ‘feeling, —— they Show the
hand of a master.
cs. 1.] THE CONFEDERATION. 169
lated to obtain the just and important object in view.
The senior officer in rank present was directed to
preside, and to report the result to the Commander-
in-chief.
On the next day after these orders were issued, a
second anonymous address appeared from the same
writer. In this paper, he affected to consider the
orders of General Washington, assuming the direc-
tion of the meeting, as a sanction of the whole pro-
ceeding which he had proposed. Washington saw,
at once, that he must be present at the meeting him-
self, or that his name would be used to justify meas-
ures which he intended to discountenance and pre-
vent. He therefore attended the meeting, and under
his influence, seconded by that of Putnam, Knox,
Brooks, and Howard, the result was the adoption of
certain resolutions, in which the officers, after reas-
serting their grievances, and rebuking all attempts to
seduce them from their civil allegiance, referred the
whole subject of their claims again to the considera-
tion of Congress.
Even at this distant day, the peril of that crisis can
scarcely be contemplated without a shudder. Had
the Commander-in-chief been other than Washing-
ton, had the leading officers by whom he was sur-
rounded been less than the noblest of patriots, the
land would have been deluged with the blood of a
civil war. But men who had suffered what the great
officers of the Revolution had sufi'ered, had learned
the lessons of self-control which suffering teaches.
The hard school of adversity in which they had
von. 1. 22
170 THE FEDERAL CONSTITUTION. [BOOK 11.
passed so many years made them sensible to an ap-
peal which only such a chief as Washington could
make; and, when he transmitted their resolves to
Congress, he truly described them as “ the last glori-
ous proof of patriotism which could have been given
by men who aspired to the distinction of a patriot
army; not only confirming their claim to the justice,
but increasing their title to the gratitude, of their
country.” 1
The effect of these proceedings was the passage by
Congress of certain resolves, on the 22d of March,
1783, commuting the half-pay for life to five years’
full pay after the close of the war, to be received, at
the option of Congress, in money, or in such securi-
ties as were given to other creditors of the United
States.2 On the 4th of July, the accounts of the
army were ordered to be made up and adjusted, and
certificates of the sums due were required to be given
in the form directed by the Superintendent of the
Finances. On the 18th of October, a proclamation
was issued, disbanding the army.
From this time, the ofiicers passed into the whole
mass of the creditors of the United States; and al-
though they continued to constitute a distinct class
among those creditors, the history of their claims is
to be pursued in connection with that of the other
1 March 18, 1783. Writings, and not to the ofiicers individually
VIII. 396. in those lines, to accept or refuse
9 The resolves gave the option the commutation. Journals, VIII
to lines of the respective States, 162.
on. 1.] THE CONFEDERATION. 171
public debts of the country. The value of the Votes
which fixed their compensation, and paid them in
public securities, depended, of course, upon the abili-
ty of the government to redeem the obligations which
it issued. The general financial powers of the Union,
therefore, under the Confederation, must now be con-
sidered.
CHAPTERII.
1781-1783.
FINANCIAL DIFFICULTIES OF THE CONFEDERATION.--REvoLUTIoNARr
DEBT.——REVENUE SYSTEM OF 1783.
IT is not easy to ascertain the amount of the public
debt of the United States, at the time when the Con-
federation went into operation. But on the 1st of
January, 1788, it amounted to about forty-two mil-
lions of dollars. About eight millions were due on
loans obtained in France and Holland, and the resi-
due was due to citizens of the United States. The
annual interest of the debt was a little more than
two million four hundred thousand dollars.‘
1 The debt due to the crown of
France was ascertained in 1782 to
be eighteen millions of livres ; and
by the contract entered into by the
United States with the king of
France, on the 16th of July, 1782,
the principal of this debt was to be
paid in twelve annual instalments of
one million five hundred thousand
livres each, in twelve years, to com-
mence from the third year after a
peace, at the royal treasury in Paris.
The intei'est was payable annually,
at the time and place stipulated for
the payment of the instalments of the
principal, at five per cent. The
king generously remitted the ar-
rears of interest due at the date of
the contract. There was also due
to the king of France ten millions
of livres, borrowed by him of the
States-General of the Netherlands
for the use of the United States,
and the payment of which he had
guaranteed. This sum was to be
paid in Paris, in ten annual instal-
ments of one million of livres each,
commencing on the 5th of Novem-
ber, 1787. The interest on this
loan was payable in Paris imme-
on. 11.] THE CONFEDERATION. 1'73
The Confederation had no sooner gone into opera-
tion, than it was perceived by many of the principal
statesmen of the country, that its financial powers
were so entirely defective, that Congress would never
be able, under them, to pay even the interest on the
public debt. Indeed, before the Confederation was
finally ratified, so as to become obligatory upon all
the States, on the 3d of February, 1781, Congress
passed a resolve, recommending to the several States,
as indispensably necessary, to vest a power in Con-
gress to levy for the use of the United States a duty
of five per cent. ad valorem, at the time and place of
importation, upon all foreign goods and merchandise
imported into any of the States; and that the money
arising from such duties should be appropriated to
the discharge of the principal and interest of the
debts already then contracted, or which might be
contracted, on the faith of the United ‘States, for the
support of the war; the duties to be continued until
the debts should be fully and finally discharged.
diately, and the first payment of
interest became due on the 5th of
ten millions of livres, amounting tt
$ 26,848 ; - making the whole for-
November, 1782. There was also
due to the Farmers-General of
France one million of livres, and
to the king six millions of livres,
on a loan for the year 1783 ; mak-
ing in the whole thirty-eight mil-
lions of livres, or $ 7,037,037,
due in France. There was also
due to money-lenders in Holland
$ 671,000 ; for money borrowed by
Mr. Jay in Spain, $150,000; and a
year’s interest on the Dutch loan of
eign debt 8 7,885,085. The domes-
tic debt amounted to $ 34,115,290.
Five millions of this were due to
the army, under the commutation
resolves of March, 1783. The res-
idue was held by other citizens, or
consisted of arrears of interest.
The whole debt of the United States
was estimated at $ 42,000,375, and
the annual interest of this sum was
$ 2,415,956.
174 THE FEDERAL CONSTITUTION. [BOOK n.
It was at this time that the office of Superintend-
ent of the Finances was established, and Robert
Morris was unanimously elected by Congress to fill
it. He was an eminent merchant of Philadelphia,
of known financial skill, devoted to the cause of the
country, and possessed of very considerable private
resources, which he more than once sacrificed to the
public service. Under his administration, it is more
than probable that, if the States had complied with
the requisitions of Congress, the war would have
been brought to a close at an earlier period. But
there was scarcely any compliance with those requi-
sitions, and, contemporaneously with this neglect,
the proposal to vest in Congress the power to levy
duties met with serious opposition. On the 30th of
October, 17 81, Congress made a requisition upon the
States for eight millions of dollars, to meet the service
of the ensuing year. In January, 1'7 83, one year and
three months from the date of this requisition, less
than half a million of this sum had been received
into the treasury of the United States. After a
delay of nearly two years, one State entirely refused
its concurrence with the plan of vesting in Congress
a p ower to levy duties, another withdrew the assent
it had once given, and a third had returned no an-
swer.
The State which refused to grant this power to
Congress was Rhode Island. On the 6th of Decem-
ber, 1782, Congress determined to send a deputation
to that State, to endeavor to procure its assent to this
constitutional change. The increasing discontents of
on. IL] THE OONEEDERATION. 175
the army, the loud clamors of the public creditors,
the extreme disproportion between the current means
and the demands of the public service, and the im-
possibility of obtaining further loans in Europe un-
less some security could be held out to lenders, made
it necessary for Congress to be especially urgent with
the legislature of Rhode Island. But, at the moment
when the deputation was about to depart on this
mission, the intelligence was received that Virginia
had repealed the act by which she had previously
granted to Congress the power of laying duties, and
the proposal was therefore abandoned for a time?
But the leading persons then in Congress —— who saw
the ruin impending over the country; who were
aware that the whole amount of money which Con-
gress had received, to carry on the public business for
the year then just expiring, was less than two mil-
lions of dollars,2 while the three branches of feeding,
clothing, and paying the army exceeded five millions
of dollars per annum, exclusive of all other depart
ments of the public service; and who were equally
aware that no means whatever existed of paying the
interest on the public debts — resolved still to perse-
vere in their endeavors to procure the establishment
3 Mr. Madison (under the date
of December 24, 1782) says, that,
on the receipt of this intelligence,
‘ ‘ the most intelligent members were
deeply affected, and prognosticated
a failure of the impost scheme, and
the most pernicious efi‘ects to the
character, the duration, and the
interests of the Confederacy. It
was at length, notwithstanding, de-
termined to persist in the attempt
for permanent revenue, and a com-
mittee was appointed to report the
steps proper to be taken. ” Debates
in the Congress of the Confedera-
tion, Elliot, 1. 17.
9 $ 1,545,818%% was the whole
amount.
'
t
176 THE FEDERAL CONSTITUTION. [BOOK II.
of revenues equal to the purpose of funding all the
debts of the United States.
Among these persons, Hamilton and Madison were
the most active; and the part which they took, at
this period, in the measures for sustaining the sink-
ing credit of the country, and the efforts which they
made, are among the less conspicuous, but not less
important services, which those great men performed
for their country. Another plan was devised, after
the failure of that of 17 81, for investing Congress
with a power to derive a revenue from duties, and, in
April, 1783, its promoters procured for it the almost
unanimous consent of Congress. This plan recom-
mended the States to vest in Congress the power of
levying certain duties upon goods imported into the
country, partly specific and partly ad 'valorem ; the
proceeds of such duties to be applied to the discharge
of the interest or principal of the debts incurred by
the United States for supporting the war. The duties
were to be collected by collectors appointed by the
States, but accountable to Congress. It also recom-
mended to the States to establish, for a term of twen-
ty-five years, substantial and effectual revenues, exclu-
sive of the duties to be levied by Congress for sup-
plying their proportions of fifteen millions of dollars
' annually, for the same purpose; and that, when this
plan had been acceded to by all the States, it should
be considered as forming a mutual .compact, irrevo-
cable by one or more of them without the consent
of the whole. It was also proposed that the rule
of ~ proportion fixed by the Confederation should be
CH. 11.] THE CONFEDERATION. 1 7 7
changed from the basis of real estate to the basis of
population.
This plan was sent out to the States, accompanied
by an address, prepared by Mr. Madison, in which
the necessity of the measure was urged with much
ability and force. Annexed to this paper were va-
rious documents, exhibiting the nature and origin of
the public debts, and the meritorious characters of
the various public creditors; the whole of the New-
burgh Addresses, and the proceedings of the ofiicers;
the contracts made with the king of France; and a
very able answer by Hamilton to the objections of
Rhode Island. No stronger and more direct appeal
was ever made to the sense of ‘right of any people.
Never was the cause of national honor, public faith,
and public safety more powerfully and eloquently set ’
forth.1
1 On the final question, as to
the revenue system, Hamilton voted
against it. His reasons were given
in a letter to the Governor of New
York, under date of April 14, 1783.
They were, “First, that it does
not designate the funds (except the
impost) on which the whole inter-
est is to arise; and by which (se-
lecting the capital articles of visi- ,
ble property) the collection would
have been easy, the funds produc-
tive, and necessarily increasing with
the increase of they country. Sec-
ondly, that the duration of the funds
is not coextensive with the debt,
but limited to twenty-five years,
though there is a moral certainty
that in that period the principal
VOL. I. 23
will not, by the present provision,
be fairly extinguished. Thirdly,
that the nomination and appoint-
ment of the collectors of the reve-
nue are to reside in each State. in-
stead of, at least, the nomination
being in the United States; the
, consequence of which will be, that
those States which have little in-
terest in the funds, by having a
small share of the public debt due
to their own citizens, will take care
to appoint such persons as are the
least likely to collect the revenue.”
Still, he urged the adoption of the
plan by his own State, “ because
it is her interest, at all events, to
promote the payment of the public
debt in continental funds, indepen-
178 THE FEDERAL CONSTITUTION. [BOOK II.
And when we consider the various classes of the
public creditors, at the close of the war, and remem-
ber that the debts of the country had been contracted
for the great purpose of establishing its independ-
ence, and that there was scarcely a creditor who had
not some claim to the gratitude of the country, we
cannot but be astonished that such an appeal as was
then made should have fallen, as it did, unheeded
upon the legislatures and people of many of the
States. In the first place, the debts were due to an
ally, the generous’. king of France, who had loaned
to the American people his armies and his treasures;
who had added to his loans liberal donations; and
whose very contracts for repayment contained proof
of his magnanimity. In the next place, they were
due to that noble band of officers and soldiers, who
had fought the battles of their country, and who
now asked only such a portion of their dues as
would enable them to retire, with the means of daily
bread, from the field of victory and glory into the
dent of the general considerations
of union and propriety. I am much
mistaken, if the debts due from the
United States to the citizens of the
State of New York do not consid-
erably exceed its proportion of the
necessary funds; of course, it has
an immediate interest that there
should be a continental provision
for them. But there are‘ superior
motives that ought to operate in
every State,—the obligations of
national faith, honor, and reputa-
tion. Individuals have been too
long already sacrificed to the pub-
lic convenience. It will he shock-
ing, and, indeed, an eternal re-
proach to this country, if we begin
the peaceable enjoyment of our in-
dependence by a violation of all the
principles of honesty and true pol-
icy. It is worthy of remark, that
at least four fifths of the domestic
debt are due to the citizens of the
States from Pennsylvania, inclu-
sively, northward.” Life of Ham-
ilton, II. 185, 186.
on. IL] THE OONEEDERATION. 17 9
bosom of peace and privacy, and such effectual secu-
rity for the residue of their claims, as their country
was unquestionably able to provide. In the last
place, they were due partly to those citizens of the
country who had lent their funds to the public, or
manifested their confidence in the government by
receiving transfers of public securities from those
who had so lent, and partly to those whose prop-
erty had been taken for the public service?
The United States had achieved their indepen-
dence. They were about to take rank among the
nations of the world. As they should meet this cri-
sis, their character would be determined. The rights
for which they had contended were the rights of hu- “
man nature. -These rights had triumphed, and now
formed the basis of the civil polity of thirteen inde-
pendent States. The forms of republican government
were therefore called upon to justify themselves by
their fruits. The higher qualities of national char-
acter — justice, good faith, honor, gratitude —- were
called upon to display an example, that would save
the cause of republican liberty from reproach and
disgrace?
But, unhappily, the establishment of peace tended
to weaken the slender bond which held the Union
together, by turning the attention of men to the in-
ternal affairs of their own States. The advantage
and the necessity of giving the regulation of foreign
commerce to the general government, if perceived at
1 Address. 2 Ibid.
180 THE FEDERAL CONSTITUTION. [BOOK II.
all, was perceived only by a few leading statesmen.
The commercial States fancied that they profited by a
condition of things which enabled them as importers
to levy contribution on their neighbors. The people
did not as yet perceive, that, without some central
authority to regulate the whole trade alike, the clash-
ing regulations of rival States would sooner or later
destroy the Confederacy. Nor were they willing to
be taxed for the payment of the public debts. The
people of the United States had not yet begun to feel,
that such a burden is to be borne as one of the first
of public and social duties. That part of the finan-
cial plan of 17 83, which required from the States a
pledge of internal revenues for twenty-five years, met
with so much opposition, that Congress was obliged
to abandon it, and to confine its efforts to that part
of the Scheme which related to the duties on imports.
In 1786, all the States, except New York, had com-
plied with the latter part of the plan; but the refusal
of that State rendered the whole of it inoperative,
and no resource remained to Congress, after the close
of the war, but the old method of making requi-
sitions on the States, under the rule of the Confed-
eration.‘
1 With what success this was
attended may be seen from the fact,
that, from the year 1782 to the
year 1786, Congress made requi-
sitions on the States for the pur-
pose of paying the interest on the
public debts, of more than six mil-
lions Of dollars, and on the 31st of
March, 1787, about one million only
of this sum had been received. The
interest of the debt due to domestic
creditors remained wholly unpaid;
money was borrowed in Europe to
pay the interest on the foreign
loans; and the domestic debt sunk
to so low a value, that it was often
sold for one tenth of its nominal
amount.
cs. 11.] THE CONFEDERATION. 181
At the return of peace, therefore, the Confedera-
tion had had a trial of two years and six months, as
a government for purposes of war. It was for these
purposes, mainly, that it was established; being in
fact, as it was in name, a league of friendship between
sovereign States, for their common defence, the secu-
rity of their liberties, and their mutual and general
welfare; the parties to which had bound themselves
by it to assist each other against all external attacks.
Doubtless the framers of the Confederation contem-
plated its duration beydnd the period of the war; for,
besides the perpetual character of the Union, which
it sought and professed to establish, it had certain
functions which were manifestly to be exercised in
peace as well as in war. These flmctions, however,
were few. The government was framed during a
revolutionary war, for the purposes of that war, and
it went into operation while the war was still waged;
taking the place and superseding the powers of the
Revolutionary Congress, under which the war had
been commenced and prosecuted.
A written constitution, with a precise and well
defined mode of operation, had thus succeeded to the
vague and indefinite, but ample, powers of the earlier
government. But in the very modes of its operation,
there was a monstrous defect, which distorted the
whole system from the true proportions and charac-
ter of a government. It gave to the Confederation the
power of contracting debts, and at the same time with-
held from it the power of paying them. It created a
corporate body, formed by the Union and known as
182 THE FEDERAL cons'rrru'rron. [BOOK n.
the United States, and gave to it the faculty of bor-
rowing money and incurring other obligations. It
provided the mode in which its treasury should be
supplied for the reimbursement of the public creditor.
But over the sources of that supply, it gave the gov-
ernment contracting the debts no power whatever.
Thirteen independent legislatures granted or With-
held the means which were to enable the general
government to pay the debts which the general con-
stitution had enabled it to contract, according to their
own convenience or their own views and feelings as
to the purposes for which those debts had been in-
curred. Yet the debts were wholly national in their
character, and by the nation they were to be dis-
charged. But, by the operation of the system under
which the nation had undertaken to discharge its
obligations, the duty of performance was parcelled
out among the various subordinate corporations of
States, and the country was thus placed in the po-
sition of an empire whose power was at the mercy
of its provinces, and was sure to be controlled by
provincial objects and ideas. ‘
A government thus situated, engaged in the prose-
cution of a war, perpetually borrowing, but never
paying, and scarce likely ever to pay, was in a po-
sition to prosecute that war with far less than the
real energies and resources of the nation: and it
stands the recorded opinion of him who conducted
his country through the whole struggle, and With-
out whom it could not, under this defective sys-
tem, have'achieved its independence, that the war
on. 11.] THE OONEEDERATION. 183
would have terminated sooner, and would have cost
vastly less both of blood and treasure, if the govern-
ment of the Union had possessed the power of direct
or indirect taxation? But the government of the
Confederation was one that trusted too much .to the
patriotism and sense of honor of the different popu-
lations of the different States. I The moral feelings of
a people will prompt to high and heroic deeds; will
impel them with irresistible force and energy to the
accomplishment of the great objects of liberty and
happiness; and will develop in individuals the high-
est capacity for endurance that human nature' can
- display. They did so in the American Revolution.
The annals of no people, struggling for liberty, ex-
hibit more of the virtues of fortitude, self-denial, and
an ardent love of freedom, than ours exhibit, espe-
cially in the earlier stages of the contest. But any
feelings are an unsafe and uncertain reliance for
the regular and punctual operations of civil govern-
ment. The fiscal concerns of a nation, left to de-
pend principally upon the prevailing sentiments of
justice, ,honor, and gratitude, -—'upon the connection
between these sentiments and that passion for liberty
which animated the earlier struggles for national
independence, —- are exposed to great hazards. If
an appeal to the feelings of a people constitutes the
principal ground of security for the public creditor,
other feelings may intervene, which will lead to a
1 General Washington’s letter to Letter to the Governors ‘of the
Hamilton, March 31, 1783. Writ- States, on disbanding the army.
ings, VIII. 409, 410. Circular Ibid. 439, 451.
Q
184 THE FEDERAL CONSTITUTION. [BOOK 11.
denial of the justice of the claim; for it is the very
nature of such an appeal to submit the Whole ques-
tion of obligation and duty to popular determination.
That government alone is likely to discharge the ust
obligations of any people, which possesses both the
power to declare what those obligations are, and the
power to levy the means of Cfiyinent, Without a refer-
ence of either ‘point to popular sentiment.
The history of the Confederation contains abun-
dant proofs of the soundness of this position. At
the close of the War, a debt of more than forty mil-
lions of dollars was due from the United States to
various classes of creditors, and the whole of it had
been contracted either by the government of the Con-
federation, or by its predecessors, for whose contracts
the Confederation was expressly botmd, by the Arti-
cles, to provide. This debt could not be discharged
Without a grant of internal revenues from the States,
and Without a grant of the power to collect other
revenues from the external trade of the country.
The appeal that was made by the government in
order to obtain these grants was addressed almost
Wholly to the moral sentiments of the people of the
different States; the time had scarcely arrived, al-
though rapidly approaching, ~for an appeal to those
interests which Were involved in the surrender to the
general government of the power of regulating for-
eign commerce ;:l and consequently the arguments
1 None of the documents, con- by Congress in 1783, discussed the
nected with the Address to the question as one of direct interest
People of the United States, issued and advantage, except Hamilton’
on. 11.] THE CONFEDERATION. 185
addressed to the sense of justice and the feeling of
gratitude were answered by discussions of the pro-
priety, ustice, and reasonableness of some of the
claims, for which the States were thus called upon to
provide, as existing debts of the country, not without
the hope, entertained in some quarters, of involving
the whole in confusion and final rejection.2
The design of the framers of the revenue system
of 17 83 was twofold; first, to do justice to the credi-
tors of the country, by procuring adequate power to
fund the public debts; and second, to strengthen and
consolidate the national government, by means of
those debts and of the various interests which would
be combined in the great object of their liquidation.
They foresaw, on the approach of peace, that to
leave these debts to be provided for by the States
individually would lead to a separation of interests
fatal to the continuance of the Union; but that to
make the United States responsible for the whole of
them would be to create a bond of union, that would
answer to the objections of Rhode
Island. The Address itself ap-
pealed entirely to considerations of
honor, justice, and good faith.
Hamilton’s paper, however, showed
with great perspicacity, that the pro-
posed impost would not be unfavor-
able to commerce, but the contrary ;
that it would not diminish the prof-
its of the merchant, being too mod-
erate in amount to discourage the
consumption of imported goods,
and therefore that it would not di-
minish the extent of importations;
von. 1'. 24
but that, even if it had this tenden-
cy, it was a tendency in the right
direction, because it would lessen
the proportion of imports to ex-
ports, and incline the balance in
favor of the country. But the
great question of yielding the con-
trol of foreign commerce to the
Union, for the sakeqf uniformity of
regulation, was not touched in any
of these papers. The time for it
had not arrived.
2 See note at the end of thi
chapter.
186 THE FEDERAL CONSTITUTION. [BOOK n.
be effectual and operative, after the external pressure
of war, which had hitherto held the States together,
should have been removed. For this purpose, they‘
undoubtedly availed themselves of the discontents of
the army, a class of the public creditors the justice
of whose claims there was immediate danger in deny-
ing. There is no reason to suppose that these dis-
contents were promoted by any one concerned in
giving direction to the action of Congress. But be-
fore the crisis had been reached in the “ Newburgh
Addresses,” it was perceived to be extremely impor-
tant to prevent the army from turning away from
the general government, as their debtor, to look
to their respective States; and, after the imminent
hazard of that moment had passed, the claims of the
army were used, and used most rightfully, to impress
upon the States the necessity of yielding to Congress
the powers necessary to do justice.1
In the proposal of this scheme of finance, involving,
as it did, a material change in the operation of the
existing constitution of the country, there was great
wisdom; and it was eminently fortunate that it went
forth before the advent of peace, to be considered and
acted upon by the States. The system of the Con-
federation had utterly failed to supply the means of
sustaining the public credit of the Union, and the
consciousness of that failure tended to produce a res-
olution of the Union into its component elements,
the States. Men had begun to abandon the hope of
1 See note on page 194.
on. II. 1 THE CONFEDERATION. 187
paying the debts of the country; or, if they Were to
i be paid at all, they had begun to look to the States,
in their individual capacities, as the ultimate debtors,
to whom at least a part of the claims was to be
referred. Had the country been permitted to pass
from a state of war to a state of peace, without the
suggestion and ‘proposal of a definite system for fund: I
ing these debts on continental securities, the Union '
would at once have been exhausted of all vitality.
The Confederation, left to discharge the functions
which belonged to it .in peace, without the power of
relieving the burdens which it had entailed upon the
country during the war, would have been everywhere
regarded as a useless machine, the purposes of which
-— poorly answered in the period of its greatest activ-
ity— had entirely ceased to exist. Congress would
have been attended by delegates from few of the
States‘, if attended at all ;1 and the rapid decay of
the Union would have been marked by the feeble,
1 As it was, the approach of have not been during the sitting of
peace had reduced the attendance
upon Congress below the constitu-
tional number of States necessary
to ratify the treaty, when it was
received. On the 23d of Decem-
ber, 1783, a resolve was passed,
“ That letters he immediately de-
spatched to the executives of New
Hampshire, Connecticut, New
York, New Jersey, South Caro-
lina, and Georgia, informing ‘them
that the safety, honor, and good
faith of the United States require
the immediate attendance of their
delegates in Congress; that there
Congress atthis place [Annapolis]
more than seven States represent-
ed, namely, Massachusetts, Rhode
Island, Pennsylvania, Delaware,
Maryland, Virginia, and North
Carolina, and most of those by only
two delegates; and that the ratifi-
cation of the definitive treaty, and
‘ several other matters, of great na-
tional concern, are now pending
before Congress, which require the
utmost despatch, and to which the
assent of at least nine States is ne-
cessary.” (Journals, IX. 12.)
188 THE FEDERAL CONSTITUTION. [BOOK II
spasmodic, and unsuccessful efforts of some of them
to discharge so much of the general burdens as could
have been assigned to them in severalty; the open
repudiation of others; and the final confusion and
loss of the whole mass of the debts, in universal
bankruptcy, poverty, and disgrace.
" But the comprehensive scheme of 17 83, although
never adopted, saved the imperfect Union that then
existed from the destruction to which it was hasten-
ing. It saved it for a prolonged, though feeble ex-
istence, through a period of desperate exhaustion.
It saved it, by ascertaining the debts of the country,
fixing their national character, and proposing a na-
tional system for their discharge. It directed the
attention of the States to the advantage and the
necessity of giving up to the Union some part of
the imposts that might be levied on foreign .com-
modities, and thus led the way to that grand idea of
uniformity of regulation, which was afterwards de-
veloped as the true interest of communities, which,
from their geographical and moral relations, consti-
tute in fact but one country. /
It is not intended, however, in assigning this influ-
ence to the revenue system proposed in 1'7 83, to sug-
gest that it contained the germ of the present Con-
stitution. It was an essentially different system. It
proposed the enlargement of the powers of Congress,
as they existed under the Confederation, only by the
grant to the United States of the right to collect cer-
tain duties on foreign importations, for the limited
period of twenty-five years, to be applied to the dis-
.f ,
i ,, a,
' .- 4 i I l’ "' a
g g , x ; {K}: a‘. kh'tg ,
1 ,aa 2‘: 1'2; ? -. ..: } sh’ " J _- "l k
"Q i
p’! 4' Bah/F.» - 1,
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t ‘ '- ._ n J‘yk‘t‘vggi.‘AA/{1);- }IAM 1} 21M 1) c" . 1 t .
\JwM/JU‘NXL ?\ 1.) LH. H.] THE CONFEDERATION. . 189
charge of the debts contracted for the purposes of the
war, but to be collected by officers appointed by the
States, although amenable to Congress; and the levy
and collection by the States of certain internal taxes,
during the same limited term, for the purpose of rais-
ing certain proportionate sums, to be paid over to the
United States, for the same obj ect. So far, therefore,
as this system suggested any new powers, there is a
wide difference between its features and principles
and those of an entire and irrevocable surrender to
the Union of the‘ whole subject of taxing and regu-
lating foreign commerce. But the influence of this
proposal upon the country, during the four years
which followed, is to be measured by the evident
necessities which it revealed, and by the means to
which it pointed for their relief; —— means which,
though never i‘ applied, and, if applied, would have
proved inadequate, still showed, through the period
‘ of increasing weakness in the Union, the high obli-
gations which rested upon the country, and which
could be discharged only by the preservation of the
Union,
190 THE FEDERAL'CONSTITUTION. [BOOK 11
NOTE TO PAGE 185.
ON THE HALF-PAY FOR THE oFFicERs 01‘ THE REVOLUTION.
IN Connecticut, the opposition to the plan of enabling Congress to fund
the public debts arose from the jealousy with which the provision of half—
pay for the ofiicers of the army had always been regarded in that State.
In October, 1783, Governor Trumbull, in an address to the Assembly de-
clining a reelection, had spoken of the necessity of enlarging the powers
of Congress, and of strengthening the arm of the government. A com-
mittee reported an answer to this address, which contained a paragraph
approving of the principles which the Governor had inculcated, but it
was stricken out in the lower house. Jonathan Trumbull, J r., who had
been one of Washington’s aids, thus wrote to him concerning the rejec-
tion of this paragraph : “It was rejected, lest, by adopting it, they should
seem to convey to [the people an idea of their concurring with the political
sentiments contained in the address; so exceedingly jealous is the spirit
of this State at present respecting the powers and the engagements of
Congress, arising principally from their aversion to the half-pay and com-
mutation granted to the army ; principally, I say, arising from this cause.
It is but too true, that some few are wicked enough to hope, that, by
means of this clamor, they may be able to rid themselves of the whole
public debt, by introducing so much confusion into public measures as
shall eventually produce a general abolition of the whole.” (Writings
of Washington, IX. 5, note.) It appears from the Journals of Congress,
that in November, 1783, the House of Representatives of Connecticut sent
some remonstrance to Congress respecting the resolution which had
granted half-pay for life to the officers, which was referred to a com—
mittee, to be answered. In the report of this committee it was said, that
“ the resolution of Congress referred to appears by the yeas and nays to
have been passed according to the then established rules of that body in
transacting the business of the United States; the resolution itself had
public notoriety, and does not appear to have been formally objected
against by the legislature of any State till after the Confederation was
completely adopted, nor till after the close of the war.” These words
were stricken out from the report by a vote of six States against one,
two States declining to vote. The journal gives no further account of
-the matter. (Journals, IX. '79. March 12, 1784.)
In Massachusetts, the half-pay had always been equally unpopular.
The legislature of that State, on the 11th of July, 1783, addressed a let-
on. 11.] THE CONFEDERATION. 191
ter to Congress, to assign, asa reason for not agreeing to the'impost
duty, the grant of half-pay to the officers, The tone of this letter does
little credit to the State.
“ Commonwealth of Massachusetts.
S “Boston, July '11, 1783.
“ IR : —-
“ The Address of the? United States in Congress assembled has been
received by the legislature of the Commonwealth of Massachusetts ; and, "
while they consider themselves as bound in duty to give Congress the
'highest assurance that no measures consistent with their circumstances,
and the constitution of this government and the Federal Union, shall re-
main unattempted by them to furnish those supplies which justice de-
mands, and which are necessary to support the credit and honor of the
United States, they find themselves under a necessity'of addressing Con-
gress in regard to the subject of the half-pay of the oflicers of the army,
and the proposed commutation thereof; with sorniother matters of a
similar nature, which produce among the people of ‘this Commonwealth
the greatest concern and uneasiness, and involve the legislature thereof
in no small embarrassments. The legislature have not been unacquainted
with the sufferings, nor are they forgetful of the virtue and bravery, of
their fellow-citizens in the army; and while they are sensible that justice
requires they should be fully compensated for 'their services and suffer-
ings, ‘at the same time it is most sincerely wished that they may return
to the bosom of their country, under such circumstances as may place
them in the most agreeable light with their fellow-citizens. Congress,
in the year 1780, resolved, that the‘ ofiicers of the army, who should con—
‘tinue therein during the war, should be entitled to half-pay for life ; and
at the same time resolved, that all such as should retire therefrom, in
consequence of the new arrangement which was then ordered to take
place, should be entitled to the same benefit; a commutation of which
half-pay has since been proposed. The General Court are sensible that
the United States in Congress assembled are, by the Confederation, vested
with a discretionary power to make provision for the support and pay-
‘ ment of the army, and such civil ofiicers as may be necessary for manag-
ing the general affairs of the United States; but in making such provis-
Ion, due regard ‘ever ought, to be had» to the welfare and happiness of
the people, the rules of equity, and the spirit and general design of the
Confederation. We cannot, on this occasion, avoid saying, that, with
due respect, we are of opinion those principles were not duly attended to,
in the grant of half-pay to the ofiicers of the armv; that being, in our
192 THE FEDERAL CONSTITUTION [BOOK n
opinion, a grant of more than an adequate reward for their services, and
inconsistent with that equality which ought to ‘subsist among citizens of
free and republican States. Such a measure appears to be calculated to
raise and exalt some citizens in wealth and grandeur, to the injury and
oppression of others, even if the inequality which will happen among the
oflicers of the army, who have performed from one to eight years’ ser-
vice, should not be taken into consideration. The observations which
have been made with regard to the oflicers of the army will in general
apply to the civil oflicers appointed by Congress, who, in our opinion,
have been allowed much larger salaries than are consistent with the state
of our finances, the rules of equity, and a proper regard to the public
good. And, indeed, if the United States were in the most wealthy and
prosperous circumstances, it is conceived that economy and moderation,
with respect to grants and allowances, in opposition to the measures
which have been adopted by monarchical and luxurious courts, would
most highly conduce to our reputation, even in the eyes of foreigners,
and would cause a people, who have been contending with so much ardor
and expense for republican constitutions and freedom, which cannot be
supported without frugality and virtue, to appear with dignity and con-
sistency; and at the same time would, in the best manner, conduce to
the public happiness. It is thought to be essentially necessary, espe-
cially at the present time, that Congress should be expressly informed,
that such measures as are complained of are extremely opposite and irri
tating to the principles and feelings which the people of some Eastern
States, and of this in particular, inherit from their ancestry. The legis-
lature cannot without horror entertain the most distant idea of the disso-
lution of the Union which subsists between the United States, and the
ruin which would inevitably ensue thereon; but with great pain they
must observe, that the extraordinary grants and allowances which Con'
gress have thought proper to ‘make to their civil and military officers
have produced such effects in this Commonwealth as are of a threatening
aspect. From these sources, and particularly from the grant of half-pay
to the officers of the army, and the proposed commutation thereof, it has
arisen, that the General Court has not been able hitherto to agree in grant-
ing to the United States an impost duty, agreeable to the recommenda-
tion of Congress; while the General Assembly at the same time have
been deeply impressed with a sense of the necessity of speedily adopting
some effectual measures for supplying the continental treasury, for the
restoration of the public credit, and the salvation of the country; —and
propose, as the present session is near terminating, again to take the sub-
ject of the impost duty into consideration early in the next. From these
on. 11.] THE OONFEDERATION. 193
observations, you may easily learn the difficult and critical situation the
legislature is in, and they rely on the wisdom of Congress to adopt and
propose some measure for relief in this extremity.
“ In the name and by order of the General Court,
“ We are your Excellency’s most obedient humble servants,
“ SAMUEL AnAMs,
President of the Senate.
“ TRIsTRAM DALTON,
Speaker cf the House of Representatives.
“ HIS EXCELLENCY THE PRESIDENT or Coueanss.”
This letter was thought worthy an answer, and accordingly a report
uppn it was brought in by Mr. Madison, and adopted in Congress, con-
taining among other things the following : -— ‘
“ Your committee consider the measure of Congress as the result of a
deliberate judgment, framed on a general view of the interests of the
Union at large. They consider it to be a truth, that no State in this
Confederacy can claim (more equitably than an individual in a society)
to derive advantages from a Union, without conforming to the judgment
of a constitutional majority of those who compose it; still, however,
they conceive it will be found no less true, that, if a State every way so
' important as Massachusetts should withhold her solid support to constitu-
tional measures of the Confederacy, the result must be a dissolution of
the Union ; --and then she must hold herself as alone responsible for the
anarchy and domestic confusion that may succeed, and for exposing all
these confederated States (who at the commencement of the late war
leagued to defend her violated rights) an easy prey to the machinations
of their enemies, and the sport of European politics; and therefore they
are of opinion, that Congress should still confide that a free, enlightened,
and ‘generous people will never hazard consequences so perilous and
alarming, and in all circumstances rely on the wisdom, temper‘and vir-
tue of their constituents, which (guided by an all-wise Providence) have
ever interposed to avert impending evils and misfortunes. Your com-
mittee beg leave further to observe, that, from an earnest desire to give
satisfaction to such of the States as expressed a dislike to the half-pay
establishment, a sum in gross was proposed by Congress, and accepted
by the ofiicers, as an equivalent for their half-pay. That your committee
are informed, that such equivalent was ascertained on established princi-
ples which are acknowledged to be just, and adopted in similar cases;
but that if the objections against the commutation were ever so valid, yet,
as it is not now under the arbitration of Congress, but an act finally
vor. 1. 25
194 THE FEDERAL CONSTITUTION. [BOOK 11.
adopted, and the national faith pledged to carry it into effect, they could
not be taken into consideration. With regard to the salaries of civil
oflicers, it may be observed, that the necessaries of life have been very
high during the war: hence it has happened that even the salaries com-
plained of have not been found sufiicient to induce persons properly quali-
fied to accept of manyimportant offices, ‘and the public business is left
undone.” (Journals of Congress, VIII. 3'79 -- 385. September 25, 1783.)

NOTE TO PAGE 186.
ON THE NEWBURGH ADDRESSES.
THERE was a period in this business, when the officers would have
accepted from Congress a recommendation to their several States for the
payment of their dues. Their committee, consisting of General McDou-
gall, Colonel Brooks of Massachusetts, and Colonel Ogden of New Jer-
sey, arrived in Philadelphia about the 1st of January. In their memorial
to Congress, they abstained from designating the funds from which they
desired satisfaction of their demands, because their great object was to
get a settlement of their accounts and an equivalent for the half-pay es-
tablished. But they were, in fact, at one time, impressed with the be-
lief that their best, and indeed their only security, was to be sought for
in funds to be provided by the States, under the recommendation of Con-
gress. This plan would have involved a division of the army into thir-
teen difi‘erent parts, leaving the claims of each part to be satisfied by its
own State : a course that would unquestionably have led to the rejection
of their demands in some States, and probably in many. To prevent
this, there is little doubt that the influence of those members of Congress
who wished to promote their interests, and to identify them with the in-
terests of the other public creditors, was used; and by the middle of
February the committee of the officers became satisfied, that the army
must unitedly pursue a common object, insisting on the grant of revenues
to the general government, adequate to the liquidation of all the public
debts. (Letter of Gouverneur Morris to General Greene, February 15,
1783. Life, by Sparks, I. 256.) The point, however, which they con-
tinued to urge, was the commutation; and upon this they encountered
great obstacles. The committee of Congress to whom their memorial
was referred went into a critical examination of the principles of annuities,
on. 11.] THE CONFEDERATION. 195
in order to determine on an equivalent for the half-pay for life, promised
by the resolve of 1780. The result was a report, declaring that six
years’ full pay was the proper equivalent. This report was followed by
a declaratory resolve, which was passed, “ that the troops of the United
States, in common with all the creditors of the same, have an undoubted
right to expect security; and that Congress will make every effort to ob-
tain, from the respective States, substantial funds, adequate to the object
of funding the whole debt of the United States, and will enter upon an
immediate and full consideration of the nature of such funds, and the
most likely mode of obtaining them.” The remainder of the report,
however, was referred tqa new committee of five, the number of years
being considered too many. The second committee reported five years’
whole pay as an equivalent, after another calculation of annuities; but
the approval of nine States could not be obtained. A desire was then
expressed by some of the members, who were opposed both to the com—
mutation and the half-pay, to have more time for consideration, and this
was granted.
This was the position of the matter on the 8th of February, when the
committee of the oficers wrote to General Knox on the part of the army.
They stated that “ Massachusetts, New York, Pennsylvania, Virginia,
North and South Carolina were for the equivalent; New Hampshire,
Rhode Island, Connecticut, and Jersey against it. There is some pros-
pect of getting one more of these States to vote for the commutation.
If this is accomplished, with Maryland and Delaware, the question will
be carried; whenever it is, as the report now stands, it will be at the
election of the line, as such, to accept of the commutation or retain
their claim to the half-pay, Congress being determined, that no alteraq
tion shall take place in the emolument held out to the army but by their
consent. This rendered it unnecessary for us to consult the army on
the equivalent for half-pay. The zeal of a great number of members
of Congress to get continental funds, while a few wished to have us re-
ferred to the States, induced us to conceal what funds we wished or ex-
pected, lest our declaration for one or the other might retard a settle-
ment of our accounts, or a. determination on the equivalent for half-pay.
Indeed, some of our best friends in Congress declared, however desirous
they were to have our accounts settled, and the commutation fixed, as
well as to get funds, yet they would oppose referring us to the States for
a settlement and security, till all prospect of obtaining continental funds
was at an end. Whether this is near or not, as commutation for the
half-pay was one of the principal objects of the address, the obtaining of
that is necessary, previous to our particularizing what fund will be most
196 THE FEDERAL CONSTITUTION. [iaOOK n.
agreeable to us: this must be determined by circumstances. If Con-
gress get funds, we shall be secured. If not, the equivalent settled, a
principle will be established, which will be more acceptable to the East-
ern States than half-pay, if application must be made to them. As it is
not likely that Congress will be able to determine soon on the commuta-
tion, (for the reasons above mentioned,) it is judged necessary that Colo
nel Brooks return to the army, to give them a more particular detail of
our prospects than can be done in the compass of a letter.” (Writings
of Washington, VIII. 553, 554.)
Two classes of persons existed at this time in Congress, of very
different views ; the one attached to State, the other to continental
politics; the one strenuous advocates for funding the public debts
upon solid securities, the other opposed to this plan, and finally yield-
ing to it only in consequence of the clamors of the army and the other
public creditors. The advocates for continental funds, convinced that
nothing could be done for the public credit by any other measures,
determined to blend the interests of the army and those of the other
creditors in their scheme, in order to combine all the motives that
could operate upon different descriptions of men in the different States.
Washington, who naturally regarded the interests of the army as the first
object in point of importance, and who had not given his attention so
much to the general financial affairs of the country, seems to have thought
it unadvisable to bring the claims of the army before the States, in con-
nection with the other public debts. On the 4th of March, he wrote to
Hamilton (then in Congress), that “the just claims of the army ought
and it is to be hoped will, have their weight with every sensible legisla-
ture in the United States, if Congress point to their demands, and show,
if the case is so, the reasonableness of them, and the impracticability of
complying with them without their aid. In any other point of view, it
would in my opinion be impolitic to introduce the army on the tapis, lest
it should excite jealousy and bring on its concomitants. The States
surely cannot be so devoid of common sense, common honesty, and com-
mon policy, as to refuse their aid on a full, clear, and candid representa—
tion of facts from Congress; more especially if these should be enforced
by members of their own body, who might demonstrate what the inevita-
ble consequences of failure will lead to.” (Writings, VIII. 390.)
But while the advocates of the continental system were maturing their
plans, new difiiculties arose, in consequence of the proceedings of the ofli-
cers at N ewburgh, and of the jealousies which the army began to entertain.
Among the resolutions adopted by the ofiicers was one, which expressed
heir unshaken confidence in the justice of Congress and the country, and
CH. 11.] THE CONFEDERATION. 197
their conviction that Congress would not disband them, until their ac-
counts had been liquidated, and adequate funds established for their pay-
ment. But Congress had no constitutional power, under the Confedera-
tion, to demand funds of the States; and to determine that the army
should be continued in service until the States granted the funds, which
it was intended to recommend, would be to determine that it should re-
main a standing army in time of peace, until the States should comply
with the recommendation. On the other hand, Congress had no present
means of paying the army, if they were to disband them. This dilem-
ma rendered it necessary to evade for a short time any explicit declara
tion of the purposes of Congress as to disbanding the army; and hence
arose a jealousy, on the part of the army, that they were to be used as
mere puppets to operate upon the country, in favor of a general revenue
system. Washington himself communicated the existence of these sus-
picions to Hamilton, on the 4th of April, advising that the army should
be disbanded as soon as possible, consulting its wishes as to the mode.
He also intimated that the Superintendent of the Finances, Robert Mor-
ris, was suspected to be at the bottom of the scheme of keeping the army
together, for the purpose of aiding the adoption of the revenue system.
Hamilton’s reply explains the position of the whole matter, and
the motives and purposes of those with whom he acted. “ But the
question was not merely how to do justice to the creditors, but how to
restore public credit. Taxation in this country, it was found, could not
supply a sixth part of the public necessities. The loans in Europe were
far short of the balance, and the prospect every day diminishing; the
court of France telling us, in plain terms, she could not even do as much
as she had done; individuals in Holland, and everywhere else, refusing
to part with their money on the precarious tenure of the mere faith of
this country, without any pledge for the payment either of principal or
interest. In this situation, what was to be done? It was essential to
our cause that vigorous efforts should be made to restore public credit;
it was necessary to combine all the motives to this end, that could oper-
ate upon difi'erent descriptions of persons in the difi'erent States. The
necessity and discontents of the army presented themselves as a powerful
engine. But, sir, these gentlemen would be puzzled to support their
insinuatious by a single fact. It was indeed proposed to appropriate the
intended impost on trade to the army debt, and, what was extraordinary,
by gentlemen who had expressedgtheir dislike to the principle of the
fund. I acknowledge I was one that opposed this, for the reasons already
assigned, and for these additional ones: that was the fimd on which we
most counted to obtain further loans in Europe; it was necessary we
198 THE FEDERAL CONSTITUTION. [BOOK 11.
should have a fund suflicient to pay the interest of what had been bor-
rowed and what was to be borrowed. The truth was, these people in
this instance Wanted to play 011“ the army against the funding system.
As to Mr. Morris, I will give your Excellency a true explanation of his
conduct. He had been for some time pressing Congress to endeavor to
obtain funds, and had found a great backwardness in the business. He
found the taxes unproductive in the different States; he found the loans
in Europe making a very slow progress; he found himself pressed on
all hands for supplies; he found himself, in short, reduced to this alter-
native,—-either of making engagements which he could not fulfil, or
declaring his resignation in case funds were not established by a given
time. Had he followed the first course, the bubble must soon have
burst; he must have sacrificed his credit and his character, and public
credit, already in a ruined condition, would have lost its last support.
He wisely judged it better to resign ; this might increase the embarrass-
ments of the moment, but the necessity of the case, it was to be hoped,
would produce the proper measures, and he might then resume the direc-
tion of the machine with advantage and success. He also had some hope
that his resignation would prove a stimulus to Congress. He was, how-
ever, ill-advised in the publication of his letters of resignation. This
was an imprudent step, and has given a handle to his personal enemies,
who, by playing upon the passions of others, have drawn some well-
meaning men into the cry against him. But Mr. Morris certainly de-
serves a great deal from his country. I believe no man in this country
but himself could have kept the money machine going during the period
he has been in ofiice. From every thing that appears, his administration
has been upright as well as able. The truth is, the old leaven of Deane
and Lee is at this day working against Mr. Morris. He happened in that
dispute to have been on the side of Deane, and certain men can never
forgive him . . . . . . The matter, with respect to the army, which has
occasioned most altercation in Congress, and most dissatisfaction in the
army, has been the half-pay. The opinions on this head have been two;
one party was for referring the several lines to their States, to make such
commutation as they should think proper; the other, for making the
commutation by Congress, and funding it on continental security. I was
of this last opinion, and so were all those who will be represented as
having made use of the army as our puppets. Our principal reasons
were : —First, by referring the lines to their respective States, those
which were opposed to the half-pay would have taken advantage of the
oflicers’ necessities to make the commutation short of an equivalent.
Secondly, the inequality which would have arisen in the different States
on. 11.] THE CONFEDERATION. 199
when the oflicers came to compare, (as has happened in other cases,)
would have been a new source of discontent. Thirdly, such a reference
was a continuance of the old, wretched State system, by which the ties
between Congress and the army have been nearly dissolved, — by which
the resources of the States have been diverted from the common treasury
and wasted: a system which your Excellency has often justly reprobated.
I have gone into these details to give you a just idea of the parties in
Cbngress. I assure you, upon my honor, sir, I have given you a candid
statement of facts, to the best of my judgment. The men against whom
the suspicions you mention must be directed, are in general the most
sensible, the most liberal, the most independent, and the most respectable
characters in our body, as well as the most unequivocal friends to the
army; in‘ a word, they are the men who think continentally.” (Life of
Hamilton, II. 162 - 164.)
Among the oflicers mentioned in the text, at page 169, as seconding
the exertions of Washington in putting down the Newburgh disturban-
ces, the reader will have observed the name of Putnam. This was»
Rufus Putnam, who had served as a Colonel through the war, and had
been made a Brigadier-General about three months before this occur-
rence. General Israel Putnam was never with the army after Decem-
ber, 1779, at which time he suffered a paralysis.
CHAPTER III.
1'781—1'783.
OPINIONS AND EFFoRTs or WASHINGTON AND OF HAMILTON.-- Dc
CLINE OF THE CoNFEDERA'rIoN
THE proposal of the revenue system went forth
to the country, although not in immediate connec-
tion, yet nearly at the same time, with those compre-
hensive and weighty counsels which Washington ad-
dressed to the States, when the great object for which
he had entered the service of his country had been ac-
complished, and he was about to return to a private
station. His relations to the people of this country
had been peculiar. He had been, not only the leader
of their armies, but, in a great degree, their civil coun-
sellor; for although he had rarely, if ever, gone out
of the province of his command to give shape or
direction to constitutional changes, yet the whole cir-
cumstances of that command had constantly placed
him in contact with the governments of the States,
as well as with the Congress ; and he had often been
obliged to interpose ‘the influence of his own char-
acter and opinions with all of them, in order that the
civil machine might not wholly cease to move. At
the moment when he was about to lay aside the
on. m] THE conrnnnnnrrorv. 201
sword, he saw very clearly that there were certain
principles of conduct which must be called into action
in the States, and among the people of the States, for
the preservation of the Union. He, and he alone,
couldaddress to them with effect the requisite words
of admonition, and point out the course of safety and
success. This great service, the last act of his revo-
lutionary officiaL life, was performed with all the truth
and wisdom of his character, before he proceeded to
resign into the hands of Congress the power which
he had held so long, and which he now surrendered
with a virtue, a dignity, and a sincerity, with which
no such power has ever been laid down by any of the
leaders of revolutions Whom the world has seen.
His object in this Address was not so much to
urge the adoption of particular measures, as to incul-
cate principles which he believed to be essential to
the welfare of the country. So clearly, however, did
it appear to him, that the honor and independence of
the country were involved in the adoption of the rev-
enue system which Congress had recommended, that
he did not refrain from urging it as the sole means by
which a national bankruptcy could be averted, before
any different plan could be proposed and adopted.
But how far, at this time, any other or further
plans, for the formation of a better constitution, had
been formed, or how far any one perceived both
the vicious principle of the Confederation and the
means of substituting for it another and more effi-
cient power, we can judge only by the published
‘writings of the Revolutionary statesmen. It is quite
voL. I. . 26
202 THE FEDERAL CONSTITUTION. [BOOK II.
certain that at this period Washington saw the de-
fects of the Confederation, as he had seen them
clearly, and suffered under them, from the beginning.
He saw that in the powers of the States, which far
exceeded those of the Continental Congress, lay the
source of all the perplexities which he had experi-
enced in the course of the war, and of almost the
whole of the difficulties and distresses of the army;
and that to form a new constitution, which would
give consistency, stability, and dignity to the Union,
was the great problem of the time. He saw, also,
that the honor and true interest of this country were
involved in the development of continental power;
that local and State politics .were destined to interfere
with the establishment of any more liberal and ex-
tensive plan of government, which the circumstances
of the country required, as they had perpetually
weakened the bond by which the Union had thus
far been held together; and that such local influ-
ences would make these States the sport of Euro-
pean policy. He predicted, moreover, that the coun-
try would reach, if it reached at all, some system of
sufiicient capabilities, only through mistakes and dis-
asters, and through an experience purchased at the
price of further difiiculties and distress. Such were
his general views, at the close of the war.1
But there was one man in the country who had
looked more deeply still into its wants, and who
1 Letter to Hamilton, March 31, Ibid. 411. Address to the States,
1783. Writings, VIII. 409. Let- June 8, 1783. Ibid. 439.
ter to Lafayette, April 5, 1783.
on. 111.] THE CONFEDERATION. 203
had formed in his enlarged and comprehenslve mind
the clearest views of the means necessary to meet
them, even before the Confederation had been practi-
cally tried. A reorganization of the government had
engaged the attention of Hamilton, as early as 1780;
and, with his characteristic penetration and power, he
saw and suggested what should be the remedy.
He entertained the opinion, at this time, as he had
always entertained it, that the discretionary powers
originally vested in Congress for the safety of the
States, and implied in the circumstances and objects
of their assembling, were fully competent to the
public exigencies. But their practice, from the time
of the Declaration of Independence through all the
period that preceded the establishment of the Con
federation, had accustomed the country to doubts of
their original authority, and had at last amounted to
a surrender of the ground from which they might
have exercised it. No remedy, therefore, remained,
applicable to the circumstances, and capable of res-
cuing the affairs of the country from their deplorable
situation, but to vest in Congress, expressly and by a
direct grant, the powers necessary to constitute an
eflicient government and a solid, coercive union. The
project then before the country, in the Articles of
Confederation, had been designed to accomplish what
the revolutionary government had failed to do. But
it was manifestly destined to fail-,in its turn; for it
left an uncontrollable sovereignty in the States, capa-
ble of defeating the beneficial exercise of the very
powers which it undertook to confer upon Congress.
204 THE FEDERAL CONSTITUTION. [BOOK H.
It made the army, not a unit, formed and organized
by a central and supreme authority, and looking up
to that authority alone, but a collection of several
armies, raised by the several States. It gave to the
State legislatures the effective power of the purse, by
withholding all certain revenues from Congress. It
proposed to introduce no method and energy of ad-
ministration; and without an executive, it left every
detail of government to be managed by a deliberative
body, whose constitution rendered it fit for none but
legislative functions.
Under these circumstances, it was Hamilton’s ad-
vice, before the Confederation took efi'ect, that Con-
gress should plainly, frankly, and unanimously con-
fess to the States their inability to carry on the con-
test with Great Britain, without more ample powers
than those which they had for’ some time exercised,
or those which they could exercise under the Confed-
eration; and that a convention of all the States be
immediately assembled, with full authority to agree
upon a different system. He suggested that a‘ com-
plete sovereignty should be vested in Congress, ex-
cept as to that part of internal police which relates
to the rights of property and life among individuals,
and to raising money by internal taxes, which he
admitted should be regulated by the State legisla-
tures. But in all that relates to war, peace, trade,
and finance, he maintained that the sovereignty of
Congress should be complete; that it should have
the entire management of foreign affairs, and of
raising and ofiicering armies and navies; that it
on. nr] THE CONFEDERATION. 20.‘)
should have the entire regulation of trade, determin-
ing with what countries it should be carried on, lay-
ing prohibitions and duties, and granting bounties
and premiums; that it should have certain perpetual
revenues of an internal character, in specific taxes;
that it should be authorized to institute admiralty
courts, coin money, establish banks, appropriate
funds, and make alliances offensive and defensive,
and treaties of commerce. He recommended also
that Congress should immediately organize executive
departments of foreign affairs, war, marine, finance,
and trade, with great officers of state at the head of
each of them.l
1 These suggestions were made
by Hamilton, in a letter of great
ability, written in 1780, while he
was still in the army, to James Du-
ane, a member of Congress from
New York. It was not published
until it appeared in his Life, I.
284. At its close, he says: “I
am persuaded a solid confederation,
a permanent army, a reasonable
prospect of subsisting it, would
give us treble consideration in Eu-
rope, and produce a peace this win-
ter. If a convention is called, the
minds of all the States and the peo-
ple ought to be prepared to receive
its determinations by sensible and
popular writings, which should
conform to the views of Congress.
There are epochs in human aflairs
when novelty is useful. If a gen-
eral opinion prevails that the old
way is bad, whether true or false,
and this obstructs or relaxes the
operations of the public service, a
change is necessary, if it be but for
the sake of change. This is exact-
ly the case now. ’Tis an univer-
sal sentiment, that our present sys-
tem is a bad one, and that things
do not go right on this account.
The measure of a convention would
revive the hopes of the people, and
give a new direction to their pas-
sions, which may be improved in
carrying points of substantial util—
ity. The Eastern States have al-
ready pointed out this mode to Con-
gress: they ought to take the hint,
and anticipate the others.” What
is here said of the action of the
Eastern States probably refers, not
to any suggestion of a convention
to revise the powers of the general
government, but to a convention of
committees of the Eastern States,
which first assembled at Hartford.
and afterwards at Boston, in No
206 THE FEDERAL CONSTITUTION.
[Boox II.
Hamilton’s entry into Congress in 1782 marks the
commencement of his public efforts to develop the
idea of a general government, whose organs should
act directly, and without the intervention of any
State machinery. He first publicly propounded this
idea in the paper which he prepared, as chairman of
a committee, to be addressed to the legislature of
Rhode Island, in answer to the objections of that
State to the revenue system proposed in 1781. One
of these objections was, that the plan proposed to
introduce into the Statepfiicers rmknown and unac-
countable to the State itself, and therefore that it was
against its constitution. From the prevalence of this
notion, we may see how difficult it was to create the
idea of a national sovereignty, that would consist
with the sovereignty of the States, and would work
in its appropriate sphere harmoniously with the
State institutions, because directed to a different class
of objects. The nature of a federal constitution was
little understood. It was apparent that the exercise
of its powers must affect the internal police of its
component members, to some extent; but it was not
well understood that political sovereignty is capable
of partition, according to the character of ' its subjects,
so that powers of one class may be imparted to a
federal, and powers of another class remain in a State
vember, 1779, and in August, 1780,
for regulating the prices of commod-
ities. Journals of- Congress, V.
406; VI. 271, 331, 392. But the
writer may have had ‘in his mind
the convention which had just as-
sembled in Massachusetts to form
the constitution of that State. 1
am aware of no public proposal, as
early as 1780, of a general co'nven-
tion to remodel the Confederacy.
on. 111.] THE CONFEDERATION._
207
constitution, without destroying the sovereignty of
the latter. Hamilton presented this view, and at the
same time pointed out, that, unless the constitution
of a State expressly prohibited its legislature from
granting to the federal government new power to
appoint officers for a special purpose, to act within
the State itself, it was competent to the legislative
authority of the State to communicate such power,
just as it was competent to it originally to enter into
the Confederation.1
1 “ It is not to be presumed,”
he said, “that the constitution of
any State means to define and fix
the precise numbers and descrip-
tions of all officers to be permitted
1n the State, excluding the creation
of any new ones, whatever might
be the necessity derived from that
variety of circumstances incident to
all political institutions. The legis-
lature must always have a discre-
tionary power of appointing offi—
cers, not expressly known to the
constitution, and this power will
include that of authorizing the fed-
eral government to make the ap-
pointments in cases where the gen-
eral welfare may require it. The
denial of this would prove too
much; to wit, that the power giv-
en by the Confederation to Con-
gress, to appoint all oflicers in the
post-ofiice, was illegal and uncon-
stitutiorial. The doctrine advanced
by Rhode Island would perhaps
prove also that the federal govern-
ment ought to have the appoint-
ment of no internal ofiicers what-
ever a position that would defeat
all the provisions of the Confedera
tion, and all the purposes of the
union. The truth is, that no fed-
eral constitution can exist without
powers that in their exercise effect
the internal police of the component
members. It is equally true, that
no government can exist without a
right to appoint ofiicers for those
purposes which proceed from, and
concentre in, itself; and therefore
the Confederation has expressly de-
clared, that Congress shall have
authority to appoint all such ‘ civil
ofiicers as may be necessary for
managing the general affairs of the
United States .under their direc-
tion.’ All that can be required is.
that the federal government confine
its appointments to such as it is
empowered to make by the original
act of union, or by the subsequent
consent of the parties; unless there
should be express words of exclu-
sion in the constitution of a State,
there can be no reason to doubt
that it is within the compass of
legislative discretion to communi-
cate that authority. The propriety
208 THE FEDERAL CONSTITUTION.
[Boox II.
In the same paper, also, he urged the necessity of
vesting the appointment of the collectors of the pro-
posed revenue in the general government, because it
was designed as a security to creditors, and must
therefore be general in its principle and dependent
on a single will, and not on thirteen different author-
ities. This was the earliest suggestion of the princi-
ple, that, in exercising its powers, the federal govern
ment ought to act directly, through agents of its
own appointment, and thus be independent of State
negligence or control. When the debate came on
in January, 17 83, upon the new project of a revenue
system, he again urged the necessity of strengthen-
ing the federal government, through the influence of
of doing it upon the present occa-
sion, is founded on substantial rea-
sons. The measure proposed is a
measure of necessity. Repeated
experiments have shown, that the
revenue to be raised within these
States is altogether inadequate to
the public wants. The deficiency
can only be supplied by loans. Our
applications to the foreign powers
on whose friendship we depend,
have had a success far short of our
necessities. The next resource is
to borrow from individuals. These
will neither be actuated by gener-
osity nor reasons of state. ’T is
to their interest alone we must
appeal. To conciliate this, we
must not only stipulate a proper
compensation for what they lend,
but we must give security for the
performance. We must pledge an
ascertained fund, simple and pro-
ductive in its nature, general in
its principle, and at the disposal of
a single will. There can be little
confidence in a security under the
constant revisal of thirteen different
deliberatives. It must, once for all,
be defined and established on the
faith of the States, solemnly pledged
to each other, and not revocable by
any without a breach of the gen-
eral compact. ’T is by such expe-
dients that nations whose resources
are understood, whose reputations
and governments are erected on the
foundation of ages, are enabled to
obtain a solid and extensive credit.
Would it be reasonable in us to
hope for more easy terms, who have
so recently assumed our rank among
the nations’.l Is.it not to be ex-
pected, that individuals will be can
tions in lending their money to a
people in our circumstances, and
I
on. 111.; THE CONFEDERATION. 209
ofiicers deriving their appointments directly from Con-
gress ; - a suggestion that was received at the mo-
ment with pleasure by the opponents of the scheme,
because it seemed to disclose a motive calculated
to touch the jealousy rather than to propitiate the
favor of the States. But the temporary expedients
of the moment always pass away. The great ideas
of a statesman like Hamilton, earnestly bent on the
discovery and inculcation of truth, do not pass away.
Wiser than those by whom he was surrounded,
with a deeper knowledge of the science of govern-
ment and the wants of the country than all of them,
and constantly enunciating principles which extend-
ed far beyond the temporizing policy of the hour,
that they will at least require the
best security we can give’.l We
have an enemy vigilant, intriguing,
well acquainted with our defects
and embarrassments. We may ex-
pect that he will make every effort
to instil diifidences into individuals,
and in the present posture of our
internal affairs he will have too
plausible ground on which to tread.
Our necessities have obliged us to
embrace measures, with respect to
our public credit, calculated to in-
spire distrust. The prepossessions
on this article must naturally be
against us, and it is therefore indis-
pensable we should endeavor to re-
move them, by such means as will
be the most obvious and striking.
It was with these views Congress
determined on a general fund; and
the one they have recommended
must, upon a thorough examina-
VOL. I. 27
tion, appear to have fewer incon-
veniences than any other. It has
been remarked as an essential part
of the plan, that the fund should
depend on a single will. This will
not be the case, unless the collec-
tion, as well as the appropriation,
is under the control of the United
States ; for it is evident, that, after
the duty is agreed upon, it may, in
a great measure, be defeated by an
ineffectual modemf levying it. The
United States have a common in-
terest in a uniform and equally en-
ergetic collection ; and not only pol-
icy, but justice to all the parts of
the Union, designates the utility
of lodging the power of making it
where the interest is common.
Without this, it might in reality
operate as a. very unequal tax.”
Journals of Congress, VIII. 153.
210 THE FEDERAL CONSTITUTION. [BOOK n.
the smiles of his opponents only prove to posterity
how far he was in advance of them.1
The efforts of Hamilton to effect a change in the
rule of the Confederation, as to the ratio of contribu-
tion by the States to the treasury of the Union, also
evince both the defects of the existing government
and the foresight with which he would have obviated
them, if he could have been sustained. The rule of
the Confederation required that the general treasury
should be supplied by the several States in propor-
tion to the value of all lands within each State,
granted or surveyed, with the buildings and improve-
ments thereon, to be estimated according to such
mode as Congress should from time to time direct
and appoint; the taxes for paying such proportion
to be laid and levied by the State legislatures, within
the time fixed by Congress. But Congress had never
appointed any mode of ascertaining the valuation of
lands within the States. The first requisition called
for after the Confederation took effect was appor
1 He said, as an additional rea-
son for the revenue being collected
by officers under the appointment
of Congress, that, "‘ as the energy
of the federal government was evi-
dently short of the degree necessary
for pervading and uniting the States,
it was expedient to introduce the
influence of officers deriving their
emoluments from, and consequently
interested in supporting the power
of Congress.” Upon this Mr.
,Madison observes: “This remark
was imprudent, and injurious to
the cause it was intended to serve.
This influence was the very source
of jealousy which rendered the
States averse to a revenue under
collection, as well as appropria—
tion, of Congress. All the mem-
bers of Congress who concurred
in any degree, with the’ States in
this jealousy, smiled at the dis-
closure. Mr. Bland, and still more
Mr. Lee, who were of this number,
took notice, in private conversa-
tion, that Mr. Hamilton had let
out the secret.” Elliot’s Debates,
I. 35.
~_
on. 111.] THE CONFEDERATION. 211
tioned among the several States without any valua
tion, — provision being made by which each State
was to receive interest on its payments, as far as they
exceeded what might afterwards be ascertained to be
its just proportion, when the valuation should have
been made.1 At the outset, therefore, a practical
inequality was established, which gave rise to com-
plaints and jealousies between the States, and in-
creased the disposition to withhold compliance with
the requisitions. The dangerous crisis in the inter-
nal affairs of the country which attended the ap-
proach of peace, had arrived in the winter and spring
of 1783, and nothing had ever been done to carry
out the rule of the Confederation, by fixing upon a
mode of valuation. When the discussion of the new
measures for sustaining the public credit came on,
three courses presented themselves, with regard to
this part of the subject; — either, first, to change the
principle of the Confederation entirely; or, secondly,
to carry it out by fixing a mode of valuation, at once;
or, thirdly, to postpone the attempt to carry it _out,
until a better mode could be devised than the exist-
ing state of the country then permitted.
Hamilton’s preference was for the first of these
courses, as the one that admitted of the application
of those principles of government which he was en-
deavoring to introduce into the federal system; for he
saw that in the theory of the Confederation there
was an inherent inequality, which would constantly
1 March 18 and 23, 1781. Journals, VII. 56, 67. ’
212 THE FEDERAL CONSTITUTION [BOOK H.
increase in practice, and which must either be re-
moved, or destroy the Union. He maintained, that,
where there are considerable differences in the rela-
tive wealth of different communities, the propor-
tion of those differences can never be ascertained
by any common measure; that the actual wealth
of a country, or its ability to pay taxes, depends
on an endless variety of circumstances, physical and
moral, and cannot be measured by any one general
representative, as land, or numbers ; and therefore
that the assumption of such a general represent-
ative, by whatever mode its local value might be
ascertained, would work inevitable inequality. In
his view, the only possible way of making the States
contribute to the general treasury in an equal pro-
portion to their means, was by general taxes imposed
under continental authority; and it is a striking proof
of the comprehensive sagacity with which he looked
forward, that, while he admitted that this mode would,
for a time, produce material inequalities, he foresaw
that balancing of interests which would arise in a
continental legislation, and would relieve the hard-
ships of one tax in a particular State by the lighter
pressure of another bearing with proportional weight
in some other part of the Confederacy.1
Accordingly, after an attempt to postpone the con-
sideration of a mode of carrying out the Confedera-
tion, he made an effort to have its principle changed,
by substituting specific taxes on land and houses, to
1 Life of Hamilton, II. 50-57.
on III.] THE CONFEDERATION. 213
be collected and appropriated, as well as the duties,
under the authority of the United States, by officers
to be nominated by Congress, and approved by the
State in which they were to exercise their functions,
but accountable to and removable by Congress.1
These ideas, however, as he himself saw, were not
agreeable to the spirit of the times, and his plan was
rejected. After many fruitless projects had been
suggested and discussed, for making the valuation
required by the Confederation, — some of them pro-
posing that it should be done by commissioners’ ap-
pointed by the United States, and some by commis-
sioners appointed by the States,—it was determined to
propose no other change in the principle of making
requisitions on the States, than to substitute popula-
tion in the place of land, as the rule of proportion.2
numbers of inhabitants, in conse-
1 March 20, 1783. Journals,
VIII. 157- 159.
2 The census was to be of “ the
whole number of white and other
free citizens and inhabitants, of
every age, sex, and condition, in-
cluding those bound to servitude for
a term of years, and three fifths of
all other persons not comprehended
in the foregoing description, except
Indians, not paying taxes, in each
State ; which number shall be tri-
enuially taken and transmitted to
the United States in Congress as-
sembled, in such mode as they shall
direct and appoint.” When the
Articles of Confederation were
framed and adopted in Congress,
a valuation of land as the rule of
proportion was adopted instead of
\
quence of the impossibility of com-
promising the different ideas of the
Eastern and Southern States as to
the rate at which slaves should be
counted; the Eastern States of co urse
wishing to have them counted in a
near ratio to the whites, and the
Southern States wishing to dimin-
ish that ratio. Numbers would
have been preferred by the South-
ern States to land, if half their
slaves only could have been taken;
but the Eastern States were op-
posed to this estimate. (Elliot’s
Debates, V. ‘79.) In 1783, when
it was proposed to change the rule
of proportion from land to numbers,
the first compromise suggested (by
Mr. Wolcott of Connecticut) was
214 THE FEDERAL CONSTITUTION. [BOOK n.
Equally extensive and important were his views
on the subject of a peace establishment, for which
he saw the necessity of providing, as the time ap-
‘ proached when the Confederation would necessarily
be tested as a government for the purposes of peace.
To adapt a constitution, whose principal powers were
originally designed to be exercised in a state of war,
to a state of peace, for which it possessed but few
powers, and those not clearly defined, was a problem
in the science of government of a novel character.
It might prove to be an impossible task; for on
applying the constitutional provisions to the real
Wants and necessities of the country, it might turn
out that the Confederation was in some respects des-
titute of the capacity to provide for them; and in
undertaking to carry out its actual and sufficient
powers, which had never hitherto been exercised,
opposition might spring up, from State jealousy and
local policy, which, in the real weakness of the fed-
eral government, would be as effectual a barrier as
the want of constitutional authority. Still the effort
was to be made; and Hamilton approached the sub’
ject with all the sagacity and statesmanship for which
he was so distinguished.
He saw that the Confederation contained provis-
ions which looked to the continuance of the Union
after the war had terminated, and that these pro-
to include only such slaves as were proportion by ages, it would be best
between the ages of sixteen and to fix it in absolute numbers, and
sixty; this was found to be im- the rate of three fifths was agreed
practicable; and it was agreed on upon. (Ibid. 81, 82.)
all sides, that, instead of fixing the
ca. 111.] THE CONFEDERATION. 215
visions required practical application, through a ma-
chinery which had never been even framed. The Ar-
ticles of Confederation vested/in Congress the exclusive
management of foreign relations; but the department
of foreign affairs had never been properly organized.
They also gave to Congress the exclusive regulation
of trade and intercourse with the Indian nations;
but no department of Indian affairs had been estab-
lished with properly defined powers and duties.
Nothing had been done to carry out the provision
for fixing the standard of weights and measures
throughout the United States, or to regulate the
alloy and value of coin. Above all, the great ques-
tion of means, military and naval, for the external
‘ and internal defence of the country during peace, for
the preservation of tranquillity, the protection of com-
merce, the fulfilment of treaty stipulations, and the
maintenance of the authority of the United States,
had not been so much as touched. To regulate these
important subjects was the design of a committee, at
the head of which Hamilton was placed; and his
earliest attention was directed to the most serious
'and difficult of them, — the provision for a peace
establishment of military and naval forces.1
The question whether the United States could
constitutionally maintain an army and navy, in time
of peace, was, under the Articles of Confederation,
not free from difficulty; but it became of imminent
practical importance, under the treaty of peace. That
1 Life of Hamilton, II. 204 -212.
216 THE FEDERAL CONSTITUTION. [BOOK II.
treaty provided for an immediate withdrawal of the
British forces from all posts and fortifications within
the United States ; and it became at once an impors
tant question, whether these posts and fortifications
-- especially those within certain districts, the juris-
diction and property of which had not been constitu-
tionally ascertained —- should be garrisoned by troops
of the United States, or of the States within which
they were situated. There was also territory apper-
taining to the United States, not within the original
claim of the United States. The whole of the West-
ern frontier required defence. The navigation of the
Mississippi and the lakes, and the rights of the fish-
eries and of foreign commerce, all belonging to the
United States, and depending on the laws of nations .
and treaty stipulations, demanded the joint protec-
tion of the Union, and could not with propriety be
left to the separate establishments of the States.
But the Articles of Confederation contained no.
express provision for the establishment and mainte-
nance of any military and naval forces during peace.
They empowered the United States, generally, (and
without mention of peace or war,) to build and equip
a navy, and to agree upon the number of land forces
to be raised, and to call upon the States to furnish
their quotas. But they also declared that no vessels
of war should be kept up by any State in time of
peace, except such number only as should be deemed
necessary by Congress for the defence of such State
or its trade; and that no body of forces should be
kept up by any State in time of peace, except such
on. 111.] THE CONFEDERATION. 217
number only as Congress should‘ deem requisite to
garrison the posts necessary for the defence of such
State. This provision might be construed to imply,
that, in time of peace, the general defence was a to be
provided for by the forces of each State, and, in time
of war, by those of the Union. But it was the opin-
ion of Hamilton, that the restrictions on the powers
of the States, with regard to maintaining forces dur-
ing peace, could not with propriety be said to contain
any directions to the United States, or to contravene
the positive power vested in the latter to raise both
sea and land forces, without mention of peace or war.
He strengthened this view by the capital inconven-
ience of the contrary construction, and by the mani-
fest necessities of the country, which could only be
provided for by the power of the Union. If the
United States could have neither army nor navy,
until war had been declared, they would be obliged
to begin to create both at the very moment when
both were needed in actual hostilities‘; and, if the
States were to be intrusted with the defence of the
country in time of peace, that defence would be left
to thirteen different armies and navies, under the
direction of as many different governments.1
He contemplated, therefore, the formation of a
peace establishment, to consist of certain corps of in-
fantry, artillery, cavalry, engineers, and dragoons ;2 a
1 Ibid. ' cers, and that the men should be
9 vHe proposed that the States enlisted under continental direc-
should transfer to Congress the tion.
right to appoint the regimental ofli- ‘
von. 1. 28
218 THE FEDERAL CONSTITUTION. [BOOK 11.
general survey, preparatory to the adoption of a gen‘
eral system of land fortifications; the establishment
of arsenals and magazines, and the erection of foun-
deries and manufactories of arms. He advised the
establishment of ports and maritime fortifications, and
the formation and construction of a navy; and his
report embraced also a plan for classing and disci-
plining the militia.
1 That the subject of a peace es-
tablishment originated with Ham-
ilton is certain, from the fact that
early in April, soon after the ap-
pointment of the committee, he
wrote to General Washington,
wishing to know his sentiments at
large on such institutions of every
kind for the interior defence of the
States as might be best adapted to
their circumstances. (Writings of
Washington, VIII. 417.) Wash-
ington wrote to all the principal
ofiicers of the army then in camp,
for their views, and from the me-
moirs which they presented to him
an important document was com-
piled, which was forwarded by him
to the committee of Congress. In
one of these memoirs Colonel Pick-
ering suggested the establishment
of a military academy at West
Point. “If any thing,” he said,
“like a military academy in Amer-
ica be practicable at this time, it
must be grounded on the permanent
military establishment of our fron-
tier posts and arsenals, and the
wants of the States, separately, of
oflicers to command the defences
of their sea-coasts. On this prin-
ciple, it might be expedient to es-
tablish a military school, or acad-
emy, at West Point. And that a
competent'number of young gentle-
men might be induced to become
students, it might be made a rule,
that vacancies in the standing regi-
ments should be supplied from
thence; those few instances ex-
cepted where it would be just to
promote a very meritorious ser-
geant. For this end, the number
which shall be judged requisite to
supply vacancies in the standing
regiment might be fixed, and that
of the students, who are admitted
with an exception of filling them,
limited accordingly. They might
be allowed subsistence at the pub-
lic expense. If any other youth
desired to pursue the same studies
at the military academy, they might
be admitted, only subsisting them-
selves. Those students should be
instructed in what is usually called
military discipline, tactics, and the
theory and practice of fortification
and gunnery.
and one or two other oflicers of the
standing regiment, and the engi-
neers, making West Point their
The commandant
on. 111.]
THE CONFEDERATION. 219
In all this design, Hamilton pursued the purpose,
which he had long entertained, of strengthening and
consolidating the Union, and guarding against its
dissolution, by providing the means necessary for its
defence. Federal, rather than State provision for
the defence of every part of the Confederacy, in peace
as well as in war, seemed to him essential. He
thought, that the general government should have
exclusively the power of the sword, and that each
State should have no forces but its militia.1
But his
general residence, would be the
masters of the academy; and the
inspector-general superintend the
whole.” (Ibid.) The subject of
a peace establishment was made
one of the four principal topics on
which Washington afterwards en-
larged in his circular letter to the
States, in June; but his sugges-
tions related chiefly to a uniform
organization of the militia through-
out the States. He subsequently
had several conferences with the
committee of Congress, on the
whole subject, but nothing was
done. (Vide note, infra.)
1 Life of Hamilton, II. 214 — 219.
The State of New York precipi-
tated the constitutional question, by
demanding that the Western posts
within her limits should be garri-
soned by troops of her own, and
by instructing her delegates in Con-
gress to obtain a declaration, con-
formably to the sixth article of the
Confederation, of the number of
troops necessary for that purpose.
Hamilton forbore to press this ap-
plication while the general subject
of a peace establishment was under
consideration. But the doubts that
arose as to the constitutional power
of Congress to raise an army for
the purposes of peace, and the ur-
gency of the case, made it neces-
sary to adopt a temporary measure
with regard to the frontier posts,
and to direct the commander-in-
chief to garrison them with a part
of the troops of the United States
which had enlisted for three years.
This was ordered on the 12th of
May. Soon after, the mutiny of a
portion of the new levies of the
Pennsylvania line occurred, which
drove Congress from Philadelphia
to Princeton, on the 21st of June.
At Princeton, they remained dur-
ing the residue of the year, but
with diminished numbers and often
without a constitutional quorum of
States. In September, General
Washington wrote to Governor
Clinton: “ Congress have come to
no determination yet respecting a
peace establishment, nor am I able
to say when they will. I have
lately had a conference with a com-
220 ‘
[Boox II.
THE FEDERAL CONSTITUTION.
great plans were arrested, partly in consequence of
the doubts entertained on the point of _ constitutional
power, and partly by reason of the great falling off
of the attendance of members in Congress. . At the
very time when this important subject was under
consideration, Congress were driven from Philadel-
phia, by the mutiny of a handful of men, whom they
could not curb at the moment without the aid of the
local authorities, and that aid was not promptly and
efliciently given.1
mittee on this subject, and have re-
iterated my former opinions: but
it appears to me, that there is not
a suflicient representation to dis-
cuss great national points; nor do
I believe there will be, while that
honorable body continue their ses-
sions at this place. The want of
accommodation, added to a disin-
clination in the Southern delegates
to be farther removed than they
formerly were from the centre of
the empire, and an aversion in the
others to give up what they con-
ceive to be a point gained by the
late retreat to this place, keep mat-
ters in an awkward situation, to the
very great interruption of national
concerns. Seven States, it seems,
by the Articles of Confederation,
must agree, before any place can
be fixed upon for the seat of the
federal government; and seven
States, it is said, never will agree;
consequently, as Congress came
here, here they are to remain, to the
dissatisfaction of the majority and
a great let to business, having none
of the public ofiices about them, nor
any place to accommodate them, if
they were brought up; and the
members, from this or some other
cause, are eternally absent.”.
1 Mr. Madison has given the
following account of this occur-
rence:-—“On the 19th of June,
Congress received information from
the Executive Council of Pennsyl-
vania, that eighty soldiers, who
would probably be followed by
others, were on the way from Lan-
caster to Philadelphia, in spite of
the expostulations of their oflicers,
declaring that they would proceed
to the seat of Congress and de-
mand justice, and intimating de-
signs against the Bank. A com-
mittee, of which Colonel Hamilton
was chairman, was appointed to
confer with the executive of Penn-
sylvania, and to take such meas-
ures as they should find necessary.
After a conference, the committee
reported that it was the opinion of
the executive that the militia of
Philadelphia would probably no
CH 111.] THE CONFEDERATION. 221
Convinced, at length, that no temporary expedi
ents would meet the wants of the country, and that a
radical reform of its constitution could alone preserve
the Union from dissolution, Hamilton surveyed the
Confederation in all its parts, and determined to lay
before the country its deep defects, with a view to the
establishment of a government with proper depart-
ments and adequate powers. In this examination,
he applied to the Confederation the approved max-
ims of free government, which had been made famil-
be willing to take arms before they
should be provoked by some actual
outrage; that it would hazard the
authority of government to make
the attempt; and that it would be
necessary to let the soldiers come
into the city, if the ofiicers who had
gone out to meet them could not
stop them. The next day the sol-
diers arrived in the city, led by
their sergeants, and professing to
have no other object than to obtain
a settlement of accounts, which
they supposed they had a better
chance for at Philadelphia than at‘
Lancaster. On the 21st, they were
drawn up in the street before the
State-House, where Congress were
assembled. The Executive Council
of the State, sitting under the same
roof, was called on for the proper
interposition. The President of
the State (Dickinson) came in and
explained the difficulty of bringing
out the militia of the place for the
suppression of the mutiny. He
thought that, without some outrages
on persons or property, the militia
could not be relied on. General
St. Clair, then in Philadelphia, was
sent for, and desired to use his in-
terposition, in order to prevail on
the troops to return to the barracks.
But his report gave no encourage-
ment. In this posture of things,
it was proposed by Mr. Izard that
Congress should adjourn. Colonel
Hamilton proposed that General
St. Clair, in concert with the Ex-
ecutive Council of the State, should
take order for terminating the mu-
tiny. Mr. Reed moved that the
General should endeavor to with-
draw the mutineers, by assuring
them of the disposition of‘ Congress
to .do them justice. Nothing, how-
ever, was done. The soldiers re-
mained in their position, occapion-
ally uttering offensive words and
pointing their muskets at the win-
dows of the hall of Congress. At
the usual hour of adjournment the
members went out, without ob- _
struction; and the soldiers retired
to their barracks. In the evening
Congress reassembled, and appoint
222 THE FEDERAL CONSTITUTION.
[Boox 11.
iar in the formation of the State constitutions, and
which point to the distinct separation of the legisla-
tive, executive, and judicial fiinctions. The Confed-
eration vested all these powers in a single body, and
thus violated the principles on which the govern-
ment of nearly every State in the Union was founded.
It had no federal judicature, to take cognizance of
matters of general concern, and especially of those in
which foreign nations and their subjects were con-
cerned; and thus national treaties, the national faith,
and the public tranquillity were exposed to the con-
flict of local regulations against the powers vested in
the Union. It gave to Congress the power of ascer-
taining and appropriating the sums necessary for the
public expenses, but withheld all control over either
the imposition or collection of the taxes by which
they were to be raised, and thus made the inclina-
tions, not the abilities, of the respective States, the
criterion of their contributions to the common ex-
penses of the Union. I It authorized Congress to bor-
row money, or emit bills, on the credit of the United
States, without the power‘ of providing funds to
secure the repayment of the money, or the redemp-
tion of the bills emitted.
ed amommittee to confer anew with
the executive of the State. This
conference produced nothing ‘but
a repetition of the doubts concern-
ing the disposition of the militia to
act, unless some actual outrage were
offered to persons or property, the
insult to Congress not being deemed
a sufiicient provocation. On the
24th, the efforts of the State au-
thority being despaired of, Con-
gress were summoned by the Pres-
ident to meet at Trenton.” (El-
liot’s Debates, I. 92-94.) The
mutiny was afterwards suppressed
by marching troops into Pennsyl-
vania under Major-General Howe.
(Journals, VIII. 281.)
S
on. 111.] THE CONFEDERATION. 223
It made no proper or competent provision for inte-
rior or exterior defence ; for interior defence, because
it allowed the individual States to appoint all regi-
mental officers of the land forces, and to raise the
men in their own way, while at the same time an
ambiguity rendered it ‘uncertain whether the defence
of the country in time, of peace was not left to the
particular ' States, both by sea and land; #- for exte-
rior defence, because it authorized Congress to build
and equip a navy, without providing any compulsory
means of manning it. .
It failed to vest in the United' States a general
superintendence of trade, equally necessary both
with a view to revenue and regulation.
It required the assent of nine States in Congress
to matters of principal importance, and of seven to
all others except adj ournments from day to day, and
thus subjected the sense of a majority of the people
of the United States to that of a minority, by putting
it in the power of a small combination to defeat the
most necessary measures.
Finally, it vested in the federal government the
sole direction of the interests of the United States in
their intercourse with foreign nations, without .em-
powering it to pass all general laws in aid and sup- ~
port of the laws of nations; thus exposing the faith, =
reputation, and peace of the country to the irregu-
lar action of the particular States.1
Having thus fully analyzed for himself the nature
1 Life of Hamilton, II. 230-237.
224; THE FEDERAL CONSTITUTION. [BOOK II
of the existing constitution, Hamilton proposed to
himself the undertaking of inducing Congress freely
and frankly to inform the country of its imperfec-
tions, which made it impossible to conduct the pub-
lic affairs with honor to themselves and advantage
to the Union; and to recommend to the several
States to appoint a convention, with full powers
to revise the Confederation, and to adopt and pro
pose such alterations as might appear to be neces-
sary, which should be finally approved or rejected
by the States.1
But he was surrounded by men, who were not
equal to the great enterprise of guiding and enlight-
ening public sentiment. He was in advance of the
time, and far in advance of the men of the time.
He experienced the fate of all statesmen, in the
like position, whose ideas have had to wait the slow
development of events, to bring them to the popular
comprehension and assent. He saw that his plans
could not be adopted; and he passed out of Congress
to the pursuits of private life, recording upon them
his conviction, that their public proposal would have
failed for want of support.2
There was in fact a manifest indisposition in Con
gress to propose any considerable change in the prin-
ciple of the government. Hence, nothing but the
revenue system, with a change in the rule by which
a partition of the common burdens was to be made,
was publicly proposed. Although this system was a
1 Life of Hamilton, H. 230-237. 9 Ibid
On. 111.] THE conrnnnnnrmn. 225
great improvement upon that of the Confederation,
it related simply to revenue, in regard to which it
proposed a reform, not of the principle of the gov-
ernment, but of the mode of operation of the old
system; for it embraced only a specific pledge by the
States of certain duties for a limited term, and not a
grant of the unlimited power of levying duties at
pleasure. There was confessedly a departure from
the strict maxims of national credit, by not making
the revenue coextensive with its object, and by not
placing its collection in every respect under the au-
thority charged with the management and payment
of the debt which it was designed to meet.1
These relaxations were a sacrifice to the ealousies
of the States; and they show that the time had not
come for ‘a change from a mere federative union to a
constitutional government, founded on the popular
will, and therefore acting by an energy and volition
of its own. '
The temper of the time was wholly unfavorable to
such a change. The early enthusiasm with which
the nation had rushed into the conflict with Eng
land, guided by a common impulse and animated by "
a national spirit, had given place to calculations of
local interest and advantage; and the principle of
the Confederation was tenaciously adhered to, while
the events which accompanied and followed the peace
were rapidly displaying its radical incapacity. The
1 See the Address to the States, the pen of Mr. Madison. Jour-
accompanying the proposed reve- nals, VIII. 194-201.
nue system, April 26, 1783, from
von. 1. 29
226 THE FEDERAL CONSTITUTION. [BOOK II.
'4'
formation of the State governments, and the con-
sequent growth and importance of State interests,
which came into existence with the Confederation,
and the fact that the Confederation was itself an
actual diminution of the previous powers of the
Union, may be considered the chief causes of the
decline of a national spirit. That spirit was des-
tined to a still further decay, until the conflict of
State. against State, and of section against section, by
shaking the government to its foundation, should
reveal both the necessity for a national sovereignty
and the means by which it could be called into life.
As a consequence and proof of the decline of na-
tional power, it is worthy of observation, that, at the
close of the year 1783, Congress had practically
dwindled to a feeble junto of about- twenty persons,
exercising the various powers of the government, but
without the dignity and safety of a local habitation.
Migrating from city to city and from State to State,
unable to agree upon a seat of government, from
jealousy and sectional policy; now assembling in
the capitol of a State, and now in the halls of a col-
lege; at all times dependent upon the protection
and even the countenance of local authorities, and
without the presence of any of the great and power-
ful minds who led the earlier counsels of the coun-
try, this body presented a not inadequate type of the
decaying powers of the Union.1 At no time in the
1 The first Continental Congress of the U'nion of any of the princi-
was called to meet at Philadelphia, pal cities in the United States.
that being the nearest to the centre Succeeding Congresses had been
CH. 111.]
227
THE CONFEDERATION.
history of the Confederation, had all the States been
represented at once; and the return of peace seemed
held there, with the exception of
the period when the city was in
the possession of the enemy, in the
year 1777, until, on the 21st of
June, 1783, in consequence of the
mutiny of the soldiers, the Presi-
dent was authoriz‘ed to summon the
members to meet at Trenton, or
Princeton, in New Jersey, “in
order that further and more effec-
tual~ measures may be taken for
suppressing the present revolt, and
maintaining the dignity and author-
ity of the United States.” On the
30th, Congress assembled at Prince-
ton, in the halls of the college,
which were tendered by its oflicers
for their use. In August, a prop-
osition was made to return to Phil-
adelphia, and that, on the second
Monday in October,Congress should
meet at Annapolis, unless in the
mean time it had been ordered other-
wise. But this was not agreed to.
A committee was then appointed
(in September), “to consider what
jurisdiction may be proper for Con-
gress in the place of their perma-
nent residence.” This seems to
have been followed by propositions
from several of the States, from
New York to Virginia inclusive, re-
specting a place for the permanent
residence of Congress, although the
Journal does not state what they
were. A question was then taken
(October 6), in which State build-
ings should be provided and erected
for the residence of Congress, be-
ginning with New Hampshire and
proceeding with all the States in
their order. Each State was neg-
atived in its turn. The highest
number of votes given (by States)
were for New Jersey and Mary-
land, which had four votes each.
A resolution was then carried,
“ that buildings for the use of
Congress be erected on or near the
banks of the Delaware, provided a
suitable district can be procured
on or near the banks of said river,
for a federal town; and that the
right of soil, and an exclusive or
such jurisdiction as Congress may
direct, shall be vested in the United
States ”; and a committee was ap-
pointed, to repair to the falls of the
Delaware, to view the country, and
report a proper district for this purl
pose. A variety of motions then
followed, for the selection of a place
of temporary residence, but none
was adopted. On the 17th of Oc-
tober, a proposition was made by
a delegate of Massachusetts (Mr.
Gerry), to have buildings provided
for the alternate residence of Con-
gress in two places, with the idea
of “ securing the mutual confidence
and affection of the States, and pre-
serving the federal balance of pow
er ”; but the question was lost
Afterwards, the following resolu»
tion was agreed to: “Whereas,
there is reason to expect that the
providing buildings for the alter-
nate residence of Congress in two
places will be productive of the
most salutary effects, by securing
228 THE FEDERAL CONSTITUTION. [BOOK n.
likely to reduce the entire machinery of the govern-
ment to a state of complete inaction.1
The Confederation, at the close of the war, is
found to have accomplished much, and also to have
failed to accomplish much more. It had effected the
cession of the public lands to the United States ; for
although that cession was not completed until after
the peace, still the arch on which the Union was
ultimately to rest for whatever of safety and per-
petuity remained for it through the four following
years, was deposited in its place, when the Confed-
eration ‘was established. It had also placed the
United States, as a nation, in a position to contract
some alliances with foreign powers. It had finished
the war; it had achieved the independence of the
nation; and had given peace to the country. It had
thus demonstrated the value of the Union, although
its defective construction aided the development of
the mutual confidence and affec-
tions of the States, Resolved, That
buildings be likewise erected, for
the use of Congress, at or near
the lower falls of the Potomac, or
Georgetown, provided a suitable
district on the banks of the river
can be procured for a federal town,
and the right of soil, and an exclu-
sive jurisdiction, or such as Con-
gress may direct, shall be vested in
the United States; and that until
the buildings to be erected on the
banks of the Delaware and Poto-
mac shall be prepared for the re-
ception of Congress, their residence
shall be alternately, at equal peri-
ods of not more than one year and
not less than six months, in Tren-
ton and Annapolis ; and the Presi-
dent is herehy authorized and di-
rected to adjourn Congress on the
twelfth day of November next, to
meet at Annapolis on the twenty-
sixth day of the same month, for
the despatch of public business.”
(Journals of Congress from June
to November, 1783.)
1 Report of a committee appoint-
ed to devise rfieans for procuring a
full representation in Congress,
made November 1, 1783. Jour-
nals, VIII. 480-482.
‘on. m] THE conrnnnnn'rron. 229
tendencies which weakened and undermined its
strength. I
But its imperfect performance of the great tasks
to which it‘ had been called, displayed its inherent
defects. It had often ‘been unequal to the purpose
of effectually drawing forth the resources of its mem-
bers for the common ‘welfare and defence. It had
often wanted an army adequate to the protection
and proportioned to the abilities of the country. It
had, therefore, seen important posts reduced, others
, imminently endangered, and whole States ‘and large
parts of others overrun by small bodies of the. ene-
my; -had been destitute of sufficient means of feed-
ing, clothing, paying, and appointing its troops, and
had thus exposed them to sufferings for which his-
tory scarcely affords a parallel. It had been com
pelled to make the administration of its affairs a
succession of temporary expedients, inconsistent with
order, economy, energy, ,or a scrupulous adherence
to public engagements. It found itself, at the close
of the war, Without any certain means of doing jus- .
tice to those who had been the principal supporters
of the Union; — to an army which had bravely
fought, and patiently suffered, -— to‘ citizens and to
foreigners, who had cheerfully lent their money, —-
and to others who had contributed property and per-
sonal service to the common cause. It was obliged
to rely, for the last hope of doing that justice, on the
precarious concurrence of thirteen distinct legisla-
tures, the dissent of either of which might defeat the
plan, and leave the States, at an early period of their
230 THE FEDERAL CONSTITUTION. [BOOK n.
existence, involved in all the disgrace and mischiefs
of violated faith and national bankruptcy.1
While, therefore, the United States emerged from
the war, which for seven long years had wasted the
energies and drained the resources of the people,
with national independence, dark and portentous
clouds gathered about the dawn of peace, as the
future opened before them. The past had been
crowned with victory; - dearly bought, but not at
too dear a price, for it brought with it the vast boon
of civil liberty. But the dangers and embarrassments
through which that victory had been achieved made
it apparent that the government of the country was
unequal to its protection and prosperity. That gov-
ernment was now called to assume the great duties
of peace, without the acknowledged power of main-
taining either an army or a navy, and without the
means of combining and directing the forces and
wills of the several parts to a general end; without
the least control over commerce; without the power
to fulfil a treaty; without laws acting upon individ-
uals; and with no mode of enforcing its own will,
but by coercing a delinquent State to its federal obli-
gations by force of arms. How it met the great de-
mands upon its energy and durability which its new
duties involved, we are now to inquire.
1 Hamilton’s proposed Resolutions; Life, II. 230 -230- 237.
BOOK III.
THE‘ CONSTITUTIONAL HISTORY OF THE UNITED
sTATEs, FROM THE PEACE- OF 1783 TO THE
FEDERAL CONVENTION OF 1787.!
09
CHAPTER 1.
JANUARY, 1‘l84—MAY, 1'78‘7'.
Du'rlns AND Nncnssr'rms or Concnnss. -— Rnoursr'rrous 0N 'rns
STATES.—-REVENUE SYs'rEM OF 1783.
THE period which now claims our attention is
that extending’ from the Peace of 17 83 to the call-
ing- of the Convention which framed the Constitu-
tion, in 1787. It was a period full of dangers and
difliculties. The destinies ofP/the Union seemed to be
left to all the hazards, arising from a defective gov-
ernment and the/ illi/be'fal and contracted policy of
its members. Pat mtism was generally thought to
consist in adh \ ii to State interests, and a reluc-
tance to intriist power to the organs of the nation.
The national obligations were therefore disregarded;
treaty stipulations remained unfulfilled; the great
duty of ustice failed to be discharged; rebellion
raised a dangerous and nearly successful front; and
the commerce of the country was exposed to the
injurious policy of other nations, with no means
of counteracting or escaping from its effects. At
length, the people of the United States began to
see danger after they had felt it, and the growth

of sounder itiews and higher principles of public
von. 1. 30
234‘ THE FEDERAL CONSTITUTION. [BOOK m.
8'
conduct gave to the friends of order, public faith,
and national security a controlling influence in the
country, and enabled the men, who had won for it
the blessings of liberty, to establish for it a durable
and sufficient government.
Four years only elapsed, betwee the return of
peace and the downfall of a goverlilllnent which had
been framed with the hope and promise of perpetual
duration; — an interval of time no longer than that
during which the people of the United States are
now accustomed to witness a change of their rulers,
Without injury to any principle or any form of their
institutions. ‘ But this brief - interval was full of suf-
fering and peril. There are ‘scarcely any evils or
dangers, of a political nature, and springing from
political and social causes, to which a free people can
be exposed, which the people of the United States
did not experience during this period. That these
evils and dangers did not precipitate the country into
civil war, and that the great undertaking of forming
a new and constitutional government, by delegates
of the people, could be entered upon and prosecuted,
with the calmness, conciliation, and concession essen-
tial to its success, is owing partly to the fact that the
country had scarcelyrecovered from the exhausting
effects of the Revolutionary struggle; but mainly to
the existence of a body of statesmen, formed during
that struggle, and fitted by hard experience to build
up the government. But before their efforts and their
influences are explained, the period which developed
the necessity for their interposition must be described.
on. 1.1
THE CONFEDERATION. 235
He who would know what the Constitution of the
United States was designed to accomplish, must un-
derstand the circumstances out of which it arose.
On the 3d of November, 1783, a new Congress,
according to annual custom, was assembled at An-
napolis, and attended by only fifteen members, from
seven States. Two great acts awaited the attention
of this assembly ; --'both of an interesting and impor-
tant character, both of national concern. The one
was the resignation of Washington; a solemnity
which appealed to every feeling of national gratitude
and pride, and which would seem to have demanded
whatever of pomp and dignity and power the United
States could display. The other was a legislative
act, which was to give peace to the country, by the
ratification of the Treaty. Several weeks passed on,
and yet the attendance was not much increased.
Washington’ivifignation was received, at a public
audience of s States, represented by about twenty
delegates ;1 and on the same day letters were de-
1 The Journals give the follow-
ing account of General Washing-
ton’s resignation : -
“ According to order, his Excel-
‘ency the Commander-in-chief was
tdmitted to a public audience, and
being seated, the President, after
a pause, informed him that the Unit-
ed States in Congress assembled
were prepared to receive his com-
trrunications; whereupon he arose
and addressed as follows: ‘ Mn.
PnnsrnEN'r,—-The great events on
which my resignation depended
having at length taken place, I
have now the honor of offering my
sincere congratulations to Con-
gress, and of presenting myself
before them to surrender into their
hands the trust committed to me,
and to claim the indulgence of re-
tiring from the service of my coun-
try. Happy in the confirmation of
our independence and sovereignty,
and pleased with the opportunity
afforded the United States of be-
coming a respectable nation, I re-
sign with satisfaction the appoint-
ment I accepted with difiidence;
a diflidcnce in my abilities to ac-
236 THE FEDERAL CONSTITUTION. [BOOK n1
spatched to the other States, urging them, for the
safety, honor, and good faith of the United States,
to require the immediate attendance of their mem-
complish so arduous a task; which, farewell to this august body, under
however, was superseded by a con- whose orders I have so long acted,
fidence in the rectitude of our I here offer my commission, and
cause, the support of the supreme take my leave of all the employ-
power of the Union, and the patron- ments of public life.’ He then ad-
age of Heaven. The successful vanced and delivered to the Presi-
termination of the war has verified dent his commission, with a copy
the most sanguine expectations ; of his address, and having resumed
and my gratitude for the interposi- his place, the President (Thomas
tion of Providence, and the assist— Mifllin) returned him the following
ance I have received from my answer: ‘S1R,--The United States
countrymen, increases with every in Congress assembled receive with
review of the momentous contest. emotions too affecting for utterance
While I repeat my obligations to the solemn resignation of the au-
the army in general, I should do thorities under which you have led
injustice to my own feelings not to their troops with success through
acknowledge, in this place, the pe- a. perilous and doubtful war. Called
culiar services and distinguismé—Jagsn—byyear—eeantry—te—defem‘rits
merits of the gentlemen who have invaded rights, you accepted the
been attached to my person during sacred charge, before it had formed
the war. It was’ impossible the alliances, and whilst it was without
choice of confidential ofiicers to funds or a government to support
compose my family should have you. You have conducted the great
been more fortunate. Permit me, military contest with wisdom and
sir, to recommend in particular fortitude, invariably regarding the
those who have continued in the rights of the civil power through
service to the present moment, as all disasters and changes. You
worthy of the favorable notice and have, by the love and confidence
patronage of Congress. I consider of your fellow-citizens, enabled
it an indispensable duty to close them to display their martial gen-
this last act of my official life by ins, and transmit their fame to pos-
commending the interests of our terity. You have persevered, till
dearest country to the protection these United States, aided by a
of Almighty God, and those who magnanimous king and nation,
have the superintendence of them have been enabled, under a just
to his holy keeping. Having now Providence, to close the war in
finished the work assigned me, I freedom, safety, and independence;
retire from the great theatre of ac- on which happy event we sincerely
tion, and, bidding an affectionate join you in congratulations. Hav-
CH. 1.]
run conrnnnnx'rron. 237
bers.1 It was not, however, until the 14th of J anu-
ary that the Treaty could be ratified by the constitu-
tional number of nine States; and, when this took
place, there were present but three-and-twenty mem-
bers.2 ,
It should undoubtedly be considered, that, from
the nature and form of the government, the delegates
in Congress had in some sense an ambassadorial char-
acter, and were assembled as the representatives of sov-
ereign States. But with whatever dignity, real or fic-
titious, they may be considered as having been clothed,
the government itself was one that created a constant
tendency to the neglect of its functions, and therefore
produced great practical evils. The Articles of Con-
federation provided that del’egags sh ould be annually
appointed by the States, to meet in Congress on the
first Monday in November in every year; and al-
though they also gave to Congress the power of ad-
ing defended the standard of liberty
in this New World, having taught
a lesson useful to those who inflict
and to those who feel oppression, you
retire from the great theatre of ac-
tion with the blessings of your fel—
low-citizens; but the glory of your
virtues will not terminate with your
military command; it will continue
to animate remotest ages. We feel
with you our obligations to the
army in general, and will particu-
larly charge ourselves with the in-
terests of those confidential oflicers
who have attended your person to
this affecting moment. We join
you in commending the interests
of our dearest country to the pro-
tection of Almighty God, beseech-
ing him to dispose the hearts and
minds of its citizens to improve
the opportunity afl'orded them of
becoming a happy and respectable
nation. And for you we address
to him our earnest prayers that a
life sd beloved may be fostered with
all his care; that your days may be
happy as they have been illustri-
one; and ‘that he will finally give
you that reward which this world
cannot give.” Journals, IX. 12,
13. December 22, 1783.
1 Ibid.
2 Journals, IX. 30. January 14,
1784.
238 THE FEDERAL CONSTITUTION. [BOOK III.
j ournment for a recess, during which the government
was to be devolved on a Committee of the States,
they fixed no period for the termination of a session.
While the war lasted, it had been both customary and
necessary for the old Congress, and for its successors
under the Confederation, to be perpetually in ses-
sion ; and this practice was continued after the peace,
with very short intervals of Committees of the States,
partly from habit, and partly in consequence of the
reduction of the delegations to the lowest constitu-
tional number. This rendered despatch impossible,
by putting it in the power of a few members to With-
hold from important matters the constitutional con-
currence of nine States. Without any reference to
population by the Articles of Confederation, not less
than two nor more than seven delegates were allowed
to each State; and by casting the burden of main-
taining its own delegates upon each State, they
created a strong motive for preferring the smaller
number, and often for not being represented at all.
This motive became more active after the peace,
when the immediate stimulus of hostilities was with-
drawn; and it was at the same time accompanied, in
most of the States, by a great jealousy of the powers
of Congress, a disinclination to enlarge them, and a
prevalent feeling that each State was sufficient unto
itself for all the purposes of government.1 The con-
sequence was, that the Congress of the Confedera-
tion, from the ratification of the Treaty of Peace to
1 See Washington’s letter to of January 18, 1784. Writings,
Governor Harrison, of the date . IX. 11.
CH. 1.] THE CONFEDERATION. 239
the adoption of the Constitution, although entitled to
ninety-one members, was seldom attended by one
third of that number; and the state of the represen-
tation was sometimes so low, that one eighth of the
whole number present could, under the constitu-
tional rule, negative the most important measures.1
Such was the government which was now called
to provide for the payment of at least the interest
on the public debts, and to procure the means for
1 Twenty-three members voted
on the ratification of the Treaty,
January 14, 1784. On the 19th
of April of the same year, the same
number being present, eleven States
only being represented, and nine
of these having only two members
each, the following resolution was
passed: “ Resolved, That the leg-
islatures of the several States he
informed, that, whilst they are re-
spectively represented in Congress
by two delegates only, such a una-
nimity for conducting the most im-
portant public concerns is neces-
sary as can he rarely expected;
that if each of the thirteen States
should be represented by two mem-
bers, five out of twenty-six, being
only a fifth of the whole, may neg-
ative any measures requiring the
voice of nine States; that of eleven
States now on the floor of Con-
gress, nine being represented by
only two members from each, it is
in the power of three out of twenty-
five, making only one eighth of the
whole, to negative such a measure,
notwithstanding that by the Arti-
cles of Confederation the dissent
of five out of thirteen, being more
than one third of the number, is
necessary for such a negative;
that in a representation of three
members from each State, not less
than ten of thirty-nine could so
' negative a matter requiring the
voice of nine States; that, from
facts under the observation of Con-
gress, they are clearly convinced
that a representation of two mem-
bers from the several States is ex-
tremely injurious, by producing de-
lays, and for this reason is likewise
much more expensive than a gen-
eral representation of three mem-
bers from each State; that there
fore Congress conceive it to be in-
dispensably necessary, and earnest-
ly recommend, that each State, at
all times when Congress are sit-
ting, be hereafter represented by
three members at least; as the
most injurious consequences may
be expected from the want of such
representation. ” At the time when
the report of the Convention, trans-
mitting the Constitution, was re-
ceived (September 28, 1787), there
were thirty-three members in at-
tendance, from twelve States.
Rhode Island was not represented.
240 THE FEDERAL CONSTITUTION. [BOOK III.
its own support; to carry out the Treaty of Peace,
and secure to the country its advantages; to com-
plete the cessions of the Western lands, and provide
for their settlement and government; to guard the
commerce of the country against the hostile policy of
other nations; to secure to each State the forms and
principles of a republican government; to extend
and secure the relations of the country with foreign
powers ; and to preserve and perpetuate the Union.
By tracing the history of its efforts and its failures
with regard to these great objects, we may under-
stand the principal causes which brought about the
conviction on the part of the people of the United
States, that another and a stronger government must
take the place of the Confederation.
It was ascertained in April, 17 84, that a sum ex-
ceeding three millions of dollars would he wanted to
pay the arrears of interest, and to meet the interest and
current expenses of the public service for the year.1
Two sources only could be looked to for this supply.
It must either be obtained by requisitions on the
States, according to the old rule of the Confederation,
or from the new duties and taxes proposed by the
revenue system of 1783. But that proposal was still
under the consideration of the State legislatures; some
of them having as yet acceded to the impost only,
and others having decided neither on the impost
nor on the supplementary taxes. Some time must
therefore elapse before the final confirmation of this
1 The sum reported by a com- cessary,was$3,812,539.33. Jour—
mittee, and finally agreed to be ne- nals, IX. 171. April 27, 1784.
on. 1.] THE CONFEDERATION. 241
system, even if its final confirmation were probable;
and, after it should have been confirmed, further time
would be requisite to bring it into operation. It was
quite clear, therefore, that other measures must be re-
sorted to. Requisitions presented the sole resource.
But in what mode were they to be made? The pre-
ceding Congress had offered two recommendations to
the States on the subject of the rule of the Confeder-
ation, which directed that the quotas of the several
States should be apportioned according to the value
of their lands. The Congress of 1783, in order to give
this rule a fair trial, had recommended to the States
to make returns of their lands, buildings, and inhab-
itants ;1 but, apprehending that the insufliciency of
the rule would immediately show itself, they had fol-
lowed this recommendation with another, to change
the basis of contribution from land to numbers of
inhabitants.2 Both of these propositions were still
under the consideration of the State legislatures, and
four States only had acceded to them.3 A new requi-
sition, therefore, if made at all, must be made under
the old rule of the Confederation, and with entirely
imperfect means of making it with justice and equal-
ity. It was found, however, that large arrears were
still due from the States, of the old requisitions made
during the war.‘ A new call upon them to pay
one half of these arrears, deducting therefrom the
1 J ournals,'VIII. 129. Febru- 4 Of the old requisition of
ary 1'7, 1783. $8,000,000,made October 30,1781,
2 Ibid. 198. April 26, 1783. only $ 1,486,511.71 had been paid
3 Connecticut, New Jersey, by all the States before December
Pennsylvania, and South Carolina. 31, 1783.
Von. 1. 31
242 THE FEDERAL CONSTITUTION. [BOOK III.
L
amount of their payments to the close of the year,
would, if complied with, produce a sum nearly suffi
cient for the wants of the government. This re-
source was accordingly tried.1
’ In the year 1785, three millions, it was ascer-
tained, would be required for the service of the year.
A renewed call was made for the remaining unpaid
moiety of the old requisition of eight millions, and
for the whole of the old requisition of two millions;
but, considering that the public faith required Con-
gress to continue their annual demand for money,
they issued a new requisition for three millions, and
adjusted it according to the best information they
could obtain.2
In the year 1'7 86, a sum of more than three mil-
lions was wanted for the current demands on the
treasury, and a new requisition was made for it,
under the old rule of the Confederation.3 Two of
the States, Rhode Island and New Jersey, thereupon
passed acts, making their own paper currency receiv-
able on all arrears of taxes due to the United States,
and proposing to pay their quotas in such currency!‘
1 Journals, IX. 171-1'79. April to admit the receipt of bills of
27, 1784.
2 Journals, X. 325-334. Sep-
tember 27, 1785.
3 Journals, XI. 167.
2, 1786.
4 Ibid. 224. September 18,
1786. Upon this attempt of
Rhode Island and New Jersey
to pay their proportions in their
own paper currency, the report
of a committee declared, “ That,
August
credit, issued under the authority
of an individual State, in discharge
of their specie proportions of a
requisition, would defeat its object.
as the said bills do not circulate
out of the limits of the State in
which they are emitted, and be-
cause a paper medium of any State,
however well funded, cannot, either
in the extensiveness of its circula_
tion, or in the course of its ex-
On. 1.]
THE CONFEDERATION. 243
But the entire inadequacy of this source of supply
to maintain the federal government, and to discharge
the annual public engagements, had now become
but too apparent. From the 1st of November, 17 81,
to the 1st of January, 1786, less than two and a half
millions of dollars had been received from requisi-
tions made during that period, amounting to more
than ten millions.1 For the last fourteen months of
that interval, the average receipts from requisitions
amounted to less than four hundred thousand dol-
lars per annum, while the interest alone due on the
foreign debt was more than half a million; and, in
the course of each of the nine following years, the
average sum of one million, annually, would become
due by instalments on the principal of that debt.2
In addition to this, the interest on the domestic
debt; the security of the navigation and commerce
of the country against the Barbary powers; the im-
mediate protection of the people dwelling on the
frontier from the savages; the establishment of mili-
tary magazines in different parts of the Union, quite
indispensable to the public safety; the maintenance
change, be equally valuable with
gold and silver. That if the bills
of credit of the States of Rhode
Island and New Jersey were to be
received from those States in dis-
charge of federal taxes, upon the
principles of equal justice, bills
emitted by any other States must
be received from them also in pay-
ment of their proportions, and
thereby, instead of the requisitions
yielding a sum in actual money,
nothing but paper would be brought
into the federal treasury, which
would be wholly inapplicable to
the payment of any part of the
interest or principal of the for
eign debt, or the maintenance
of the government of the United
States.” '
1 Journals, XI. 34-40. Feb-
ruary 15, 1786.
.2 Ibid.
244 THE FEDERAL CONSTITUTION. [BOOK In.
of the federal government at home, and the support
of the public servants abroad, — each and all de-
pended upon the contribution of the States under the
annual requisitions, and were each and all likely to
be involved in a common failure and ruin.1
There can be no doubt that the continuance of the
practice of making requisitions, after the proposal of
the revenue system of 1783, had some tendency to
prevent the adoption of > that system by the States.
But there was no other alternative within the consti-
tutional reach of Congress; and in the mean time,
the revenue system, submitted as it necessarily was
to the legislatures of thirteen different States, was,
as far as it was assented to, embarrassed with the
most discordant and irreconcilable provisions. It
was' ascertained in February, 1786, that seven of the
States had granted the impost part of the system, in
such a manner, that, if the other six States had made
similar grants, the plan of the general impost might
have been immediately put into operation.2 Two of
the other States had also granted the impost, but
had embarrassed their grants with provisos, which
. suspended their operation until all the other States
should have passed laws in full conformity with the
whole system.3 Two other States had fully acceded
to the system in all its parts ;‘* but four others had
not decided in favor of any part of it.5
1 Journals, XI. 34-40. Feb- 3 Pennsylvania and Delaware.
ruary 15, 1786. 4 Delaware and North Caro
2 New Hampshire, Massachu- lina.
setts, Connecticut, New Jersey, 5 Rhode Island, New York
Virginia, North Carolina, and Maryland, and Georgia.
South Carolina. ‘
on. 1.] THE cournnnnx'rron. 245
No member of the Confederacy had, at this time,
suggested to Congress any reasonable objection to
the principles of the system; and the contradictory
provisions by which their assent to it had been
clogged, present ‘a striking proof of the inherent
difficulties of obtaining any important constitutional
change from the legislatures of the States. The gov-
ernment was founded upon a principle, by which all
its powers were derived from the States in their cor-
porate capacities; in other words, it was a govern-
ment created by, and deriving its authority from, the
governments of the States. They alone could change
the fundamental law of its organization; and they
were actuated by such motives and jealousies, as ren-
dered a unanimous assent to any change a great im-
probability. Still, the Congress of 17 86 hoped that,
by a clear and explicit declaration of the true posi-
tion of the country, the requisite compliance of the
States might be obtained. They accordingly made
known, in the most solemn manner, the public em-
barrassments, and declared that the crisis had arrived,
when the people of the United States must decide
whether they were to continue to rank as a nation,
by maintaining the public faith at home and abroad;
or whether, for want of timely exertion in estab-
lishing a general revenue, they would hazard the
existence of the Union, and the great national privi-
leges which they had fought to obtain.1
1 The report on this Occasion requisitions of Congress for eight
(February 15, 1786), drawn by years past have been so irregular
Rufus King, declared, “that the in their operation, so uncertain in
246 THE FEDERAL CONSTITUTION.
[Boon 111.
Under the influence of this urgent representation,
all the States, except New York, passed acts grant-
ing the impost, and vesting the power to collect it in
Congress, pursuant to the recommendations of 1783,
but upon the condition that it should not be in force
until all the States had granted it in the same man-
ner. The State of New York passed an act,1 reserv-
ing to itself the sole power of levying and collect-
ing the impost; making the collectors amenable to
and removable by the State, and not by Congress;
and making the duties receivable in specie or bills
of credit, at the option of the importer. Such a de-
parture from the plan suggested by Congress, and
adopted by the other States, of course made the
whole system inoperative in the other States, and
there remained no possibility of procuring its adop-
tion, but by inducing the State of New York to re-
consider its determination. All hope of meeting the
public engagements, and of carrying on the govern-
ment, now turned upon the action of a single State.
The principal argument made use of, by those who
their collection, and so evidently
unproductive, that a reliance on
them in future as a source from
whence moneys are to be drawn to
discharge the engagements of the
Confederacy, definite as they are
in time and amount, would be not
less dishonorable to the understand-
ings of those who entertain such
confidence, than it would be dan-
gerous to the welfare and peace of
the Union. The committee are
therefore seriously impressed with
the indispensable obligation that
Congress are under, of representing
to the immediate and impartial con-
sideration of the several States the
utter impossibility of maintaining
and preserving the faith of the
federal government by temporary
requisitions on the States, and the
consequent necessity of an early
and complete accession of all the
States to the revenue system of the
18th of April, 1783.”
1 May 4, 1786.
cs. 1.] THE CONFEDERATION. 247
supported the conduct of New York, was, that Con-
gress, being a single body, might misapply the money
arising from the duties. ‘An answer to this pretence,
from the pen of Hamilton, declared that the interests
and liberties of the people were not less safe in the
hands of those whom they had delegated to represent
them for one *year in Congress, than they were in the
hands of those whom they had delegated to represent
them for one or four years in the legislature of the
State; that all government implies trust, and that
every government must be trusted so far as it is ne-
cessary to enable it to attain the ends for which it is
instituted, without which insult and oppression from
abroad, and confusion and convulsion at home, must
ensue.1 The real motive, however, with those who
ruled the counsels of New York at this period, was a
hope of the commercial aggrandizement of the State;
' and the jealousies and fears of national power, which
were widely prevalent, were diligently employed to
defeat the system proposed by Congress.
After the passage of the act of New York, and the
adjournment of the legislature, Congress earnestly
recommended to the executive of that State to con-
vene the legislature again, to take into its considera-
ti on the recommendation of the revenue system, for
the purpose of granting the impost to the United
States, in conformity with the grants of other States,
so as to enable the United States to carry it into im-
mediate effect.2 The Governor declined to accede to
1 Life of Hamilton, II. 385. 9 August 11, 1786.
248 THE FEDERAL CONSTITUTION. [BOOK 111
this recommendation.1 Congress repeated it, declar-
ing that the critical and embarrassed state of the
finances required that the. impost should be carried
into immediate operation, and expressing their opin-
ion, that the occasion was sufficiently important and
extraordinary for them to request that the legislature
should be specially convened.2 The executive of
New York again refused the request of Congress,
and the fate of the impost system remained suspended
until the meeting of the legislature, at its regular
session in January, 1787. It was never adopted
by that State, and consequently never took effect.
’
1 The ground of his refusal was, laid before them, and so recently
“ that he had not the power to con- as at their last session received
vene the legislature before the time their determination, it cannot come.
fixed by law for their stated meet- within that description.” Life of
ing, except upon ‘extraordinary Hamilton, II. 389.
occasions,’ and as the present busi- 9 August 23, 1786.
uses had already been particularly
CHAPTER II.
1784-1787. ,
INFRACTIONS OF THE TREATY OF PEACE.
THE Treaty of Peace, ratified on the 14th of J anu-
ary, 1784, contained provisions of great practical and
immediate importance. One of its chief objects, on
the part of the United States, was, of course, to effect
the immediate withdrawal of the British troops, and
of every sign of British authority, from the country
whose independence it ack'nowledged. A stipula-
tion was accordingly introduced, by which the King
bound himself, with all convenient speed, and. with-
out causing any destruction, or_ carrying away any
negroes or other property of the American inhabit-
ants, to withdraw all his armies, garrisons, and fleets
from the United States, and from every post, place,
and harbor within the same. Although the ratifica-
tion of the Treaty was followed by the departure of
the British forces from the Atlantic coast, many im-
portant posts in the Western country, within the in-
contestable limit/softhe United States, with a consider-
able territory around eemho\fthem, were still retained.1

1 Secret Journals of Congress, IV. 186, 187.
rm. 1. 32
250 THE FEDERAL CONSTITUTION. [BOOK III.
On the part of England, it was of great conse-
quence to secure to British subjects the property, and
rights of property, of the enjoyment of which the
state of hostilities had deprived them. A war be-
tween colonies and the parent state, which had sun-
dered the closest intimacies of social and commercial
intercourse, involved of necessity vast private inter-
ests. There were‘ two large classes of English cred-
itors, whose interests required protection; the Brit-
ish merchants to whom debts had been contracted
before the Revolution, and the Tories, who had been
obliged to depart from the United States, leaving
debts due to them, and landed property, which had
been seized. Clear and explicit stipulations were
inserted in the Treaty, in order to protect these inter-
ests. It was provided that creditors on either side
should meet with no lawful impediments to the re-
covery of the full value in sterling money of all bona
fide debts contracted before the date of the Treaty.1
It was also agreed, _ that Congress should earnestly
recommend to the legislatures of the respective States
to provide for the restitution of all estates, rights,
and properties, which had been confiscated, belong-
ing to real British subjects, and to persons resident
in districts in the possession of his Majesty’s arms,
and who had not borne arms against the United
States; that persons of any other description should
have free liberty to go into any of the States, and
remain for the period of twelve months unmolested
1 Article IV.
on. 11.] . THE CONFEDERATION. 251
in their endeavors to obtain the restitution of their
property and rights which had been confiscated; that
Congress should recommend to the States a recon-
sideration and revision of all their confiscation laws,
and a restoration of the rights and property of the
last-mentioned persons, on their refunding the bona
fide price which any purchaser might have given for
them since the confiscation. It was also agreed, that
all persons having any interest in confiscated lands,
either by debts, marriage settlements, or otherwise,
should meet with no lawful impediment in the prose-
cution of ‘their just rights.1
It was further provided, that there should be no
future confiscations made, nor any prosecutions com-
menced against any person on account of the part he
might have taken in the war, and that no person
should, on that account, suffer any future loss or
damage, either in person, liberty, or property, and
that those who might be in confinement on such
charges, at the time of the ratification of the Treaty
in America, should be immediately set at liberty, and
the prosecutions be discontinued.2
These provisions related to a great subject, with
which, in the existing political system of this coun-
try, it was difficult to deal. The action ,of the States,
with regard to some of the interests involved in these
stipulations, had been irregular from an early period
of the war. The Revolutionary Congress, on the
commencement of hostilities, had suffered the oppor-
1 Article V. 9 Article VI.
252 THE FEDERAL CONSTITUTION [BOOK m.
tunity of asserting their rightful control over the
subject of alien interests, except as to property found
on the high seas, to pass away; and the consequence
was, that the States had, on some points, usurped an
authority which belonged to the Union. A Union,
founded in compact, and vesting the rights of war
and peace in Congress, was formed in 17 75; and
from that time the Colonies, or, as they afterwards
became, States, were never rightfully capable of pass-
ing laws to sequester or confiscate the debts or prop-
erty of a national enemy.1 After the great acts of
national sovereignty which took place in 17 7 5 - 6, a
British subject could not, with any propriety, be con-
sidered as the enemy of Massachusetts, or of Vir-
ginia; he was the enemy of the United States, and
by that authority alone, as the belligerent, was his
property, in strictness, liable to be seized, or the debts
due to him sequestered. But neither the Revolution-
ary Congress, nor that of the Confederation, appear
to have ever exercised the power of confiscating
the debts or property of British subjects, within the
States, or to have recommended such confiscation to
the States themselves.2 On the other hand, they did
not interfere when the States saw fit to _do it.
With regard to those inhabitants of the States who,
adhering to the British crown, had abandoned the
country, and left property behind them, it cannot so
clearly be affirmed that the States should not have
1 See the Report made to Con— tober, 1786. Secret Journals. IV.
gress on this subject by Mr. Jay, 209.
Secretary of Foreign Affairs, 00- 2 Ibid.
C11. 11.] THE CONFEDERATION. 253
dealt with their persons or property. Congress, as
we have seen, at an early period of the war, commit-
ted the whole subject of restraining the persons of
the Tories to the Colonies or States; and as Congress
never assumed or exercised any jurisdiction over
their property, it was of course left to be dealt with
by the legislatures of the States, to whom Congress
had declared that their several inhabitants owed
allegiance.1 But as these persons, by adhering to
the crown, might claim of the crown the rights
and protection of British subjects, the propriety of
confiscating or withholding their property would re-
main for solution, at the negotiation of the Treaty of
Peace, as a question of general justice and‘ equity,
rather than of public law.
The interests of both of these classes of persons
were too important to be overlooked. Three mil-
lions sterling were due from the ‘inhabitants of the
Colonies to merchants in Great Britain, at the com-
mencement of the war. At the return of peace, the
laws of five of the States were found either to pro-
hibit the recovery of the principal, or to suspend its
collection, or to prohibit the recovery of interest, or
to make land a good payment in place of money.2
1 Resolve of June 24, 1776.
J ournals,II. 216. Ante, p. 52, note.
9 _An act passed by the legisla-
ture of Massachusetts, November
9, 1784, suspended judgment for
interest on British debts, until
Congress should have put a con-
struction upon the Treaty declar-
ing that it was due. An act of
the State of New York, of July
12, 1782, restrained the collection
of debts due to persons within the
enemy’s lines. Pennsylvania, soon
after the peace, passed a law re-
straining the levy of executions.
Virginia, at the time of the peace,
had existing laws inhibiting the
recovery of British debts. South
254 THE FEDERAL CONSTITUTION. [BOOK 111.
The purpose of the Treaty was to declare, that all
bona fide debts, contracted before the date of the
Treaty, and due to citizens of either country, re-
mained unextinguished by the war; and consequent-
ly, that interest, when agreed to be paid, or payable
by the custom, or demandable as damages for delay
of payment, was justly due. Over this whole subject
of foreign debts, the national sovereignty, of right,
had exclusive control; for confiscation of the prop-
erty of a national enemy belongs exclusively to the
power exercising the rights of war; and therefore
whatever State laws might have been passed during
the war, exercising rights which belonged to the na-
tional sovereign, they could have no validity when
that sovereign came to resume its control over the
subject, and to stipulate that the right of confiscation,
if it ever existed, should not be exercised. The State
laws, however, existed, and remained in conflict with
the Treaty, for several years, producing consequences
to which we shall presently advert.
The fifth article of the Treaty was infringed by an
act passed by the State of New York, authorizing
actions for rent to be brought by persons who had
been compelled to leave their lands and houses by
the enemy, against those who had‘ occupied them
while the enemy were in possession, and declaring
that no military order or command of the enemy
should be pleaded in justification of such occupation.1
Carolina had made iland a good 1 Passed March 17, 1783. Se-
' payment, in place of money. (See cret Journals, IV. 267.
Mr. J ay’s Report.)
on. 11.] THE CONFEDERATION. 255
The sixth article was also violated by an act of the
same State, which made those inhabitants who ha
adhered to the enemy, if found within the State",
guilty of misprision of treason, and refiered them i.
incapable of holding office, or of voting at elections.1
The powers of the government were entirely inade-
quate to meet this state of things. The Confedera-
tion gave to the United States in Congress assembled
the sole and exclusive right of determining on peace
and war, and of entering into treaties and alliances.
The nature of the sovereignty thus established made
a treaty the law of the land, and binding upon every
member of the Union; but there existed no means \
of enforcing the obligation. If the legislatures of
the States passed laws restraining or interfering with
the provisions of a treaty, Congress could only de-
clare that they ought to be, and recommend that
they should be, repealed. The simple and effectual
intervention of a national judiciary, clothed with the
' power‘ of ‘ declaring void any State legislation that
conflicted with the national sovereignty, and of giv-
ing the means of enforcing all rights which that sov-
ereignty had guaranteed by compact with a foreign
power, did not exist. Resort, it is true, could be
had to the State tribunals; and, on one memorable
occasion, such resort was had to them with success.
But the legislative power assailed the independence
of the judiciary, and indignantly declared a decision,
made with fairness by a competent tribunal, subver-
1 Passed May 12, 1784, after the Treaty had been ratified. Secret
lournals, IV. 269—274.
256 THE FEDERAL CONSTITUTION. [BOOK HI
sive of law ‘and good order, because it recognized the
paramount authority of a treaty over a statute of the
State.1
The efl'e'é:l of such State legislation upon the rela
tions of the two countries was direct and mischievous.
The Treaty of Peace was designed, and was adapted,
to produce a fair and speedy adjustment of those re-
lations, upon principles of equity and justice. But
its obligations were reciprocal, and it could not exe-
cute itself. It was made, on the one side, by a power
capable of performing, but also capable of waiting for
the performance of the obligations which rested upon
the other contracting party. On the other side, it
was made by a power possessed of very imperfect
means of performance, yet standing in constant need
of the benefit which a full compliance with its obli-
gations would insure. After the lapse of three years
from the signature of the preliminary articles, and of
more than two years from that of the definitive Treaty,
the military posts in the Western country were still
neld by British garrisons, avowedly on account of the
infractions of the Treaty on our part. The Minister
1 This happened in New York,
in a case under the “ Trespass
Act,” where a suit was brought in
the Mayor’s Court of the City of
New York, “to recover the rents
of property held by the defendant
under an order of Sir Henry Clin~
ton. Hamilton, in the defence of
this case, contended, with great
power, that the act was a violation
of the Treaty, and the court sus-
tained his position. But the legis~
lature passed resolves, declaring
the decision to be subversive of law
and good order, and recommending
the appointing power “to appoint
such persons Mayor and Recorder
of New York as will govern them-
selves by the known law of the
land.” Life of Hamilton, II.
244, 245.
on. 11.] THE cour‘nnnnn'rmn. 257
of the United States at St. J ames’s was told, in an-
swer to his complaints, that one party could not be
obliged to a strict observance of the engagements of
a treaty, and the other remain free to deviate from its
obligations; and that whenever the United ‘States
should manifest a real determination to fulfil their
part of the Treaty, Great Britain would be ready to
carry every article of it into complete effect.1 An
investigation of the whole subject, therefore, became
necessary, and Congress directed the Secretary of
Foreign Affairs to make inquiry into the precise
state of things. His report ascertained that the
fourth and fifth articles of the Treaty had been con-
stantly violated on our part by legislative acts still in
existence and operation; that on the part of Eng-
land, the seventh article had been violated, by her
continuing to hold the posts from which she had
agreed to withdraw her garrisons, and by carrying
away a considerable'body of negroes, the property of
American inhabitants, at the time of the evacuation
of New York.2
The serious question recurred, -— what was to be
done’! The United States had neither committed
nor approved of any violation of the Treaty; but an
appeal was made to their ustice, relative to the con-
duct of particular States, for which they were obliged
the British government, on the sub-
ject of the Western posts, in Feb-
ruary, 1786. Secret Journals, IV
187 .
2 Secret Journals, IV. 209
1 Mr. John Adams was sent as
the first Minister of the United
States to the Court of St. J ames’s
in 1785. He received this reply to
a memorial which he addressed to
von. 1. 33
l
l
f
258 THE FEDERAL CONSTITUTION. [BOOK III
eventually to answer. They could only resolve and
recommend; and accordingly, after having declared
that the legislatures of the States could not, of right,
do any thing to explain, interpret, or limit the opera-
tionqaf a treaty, Congress recommended to the States
to pass a general law, repealing all their former acts
that might be repugnant to the Treaty, and leaving
to their courts of justice to decide causes that might
arise under it, according to its true intent and mean-
ing, by determining what acts contravened its pro-
visions.1 This recommendation manifestly left the
interests of the Union exposed to two hazards; the
one, that the legislatures of the States might not pass
the repealing statute, which would submit the proper
questions to their courts, and the other, that their
courts might not decide with firmness and impar-
tiality between the policy of the State, on the one
hand, and the interests of foreigners and obnoxious
Tories, on the other.
But this was all that could be done, and partial
success only followed the effort. Most of the States
passed acts, in compliance with the recommendation
of Congress, to repeal their laws which prevented
the recovery of British debts.2 But the State of Vir-
ginia, although it passed such an act, suspended its
operation, until the Governor of the State should
issue a proclamation, giving notice that Great Brit-
ain had delivered up the Western posts, and was
1 March 21, 1787. Delaware, Maryland, Virginia, and
9 New Hampshire, Massachu- North Carolina passed such act-s
setts, Rhode Island, Connecticut,
ca. 11.; THE GONFEDERATION. 259
taking measures for the further fulfilment of the
Treaty, by delivering up the negroes belonging tc
the citizens of that State, which had been carried
away, or by making compensation for their value.1
The two countries were thus brought to a stand, in
their efforts to adjust the matters in dispute, and the
Western posts remained in the occupation of British
garrisons, inflaming the hostile temper of the Indian
tribes, and enhancing the difficulty of settling the
vacant lands in the fertile region of the Great Lakes.21
1 Pitkin’s History of the United 2 Marshall’s Life of Washing-
States, II. 198. ton, V. 67, 68.
CHAPTER III.
1786-1787.
No SEcuRrTY AFFoRDED BY THE CoNFEDERATroN TO THE STATE Gav
ERNusNTs—SHAYs’s REBELLION IN MAssAcnusETTs, AND rrs KIN
DRED DISTURBANCES.
N o federative government can be of great perma-
nent value, which is not so constructed that it may
stand, in some measure, as the common sovereign of
its members, able to protect them against internal
disorders, as well as against external assaults. The
Confederation undertook but one of these great du-
ties. It was formed at a time when the war with
England was the great object of concern to the re-
volted Colonies, and when they felt only the exigen-
cies which that war created. Hence its most impor
tant powers, as well as its leading purpose, concerned
the common cause of resistance to a foreign domina-
tion. A federal league of States independent of each
other, formed principally for mutual defence against
a common enemy, was all that succeeded to the gen-
eral superintending power of the British crown, by
which the internal affairs of each of them had al-
ways been regulated and controlled, in the last re-
sort. When the tie was broken by which they had
Ca. :11] THE cournnnnxrrou. 261
been held to the parent state, each of them created
for itself a new government, resting for its basis on
the popular will, and deriving its authority directly
from the people; but none of them provided for the
creation of a power, external to itself, which might
stand as the guarantor and protector of their new in-
stitutions, and secure the principles on which they
rested against violence and overthrow. Yet the con-
stitutions thus formed, from their peculiar nature,
eminently needed the safeguards which such a power
could afford.
These constitutions were admirably constructed.
They contained principles imperfectly known to the
ancient governments; found in modern times only in
the government of England; and applied there with
far less consistency and completeness. They em-
braced the regular distribution of political power
into distinct departments; legislative checks and
balances, by means of two cotirdinate branches of
the legislature; a judiciary in general holding oflice
during good behaviour; and the representation of
the people in the legislature, by deputies of their
own actual election, in which the theory of such rep-
resentation was more perfectly carried into practice
than it had ever been in the country from which it
was derived. But the fundamental \principle on
which they all rested, and without which they could
not maintain existence, required means of defence.
They were established upon the great doctrine, that
it is the right of every political society to govern
itself, and for the purposes of such self-government,
262 THE FEDERAL CONSTITUTION. [BOOK III.
to create such constitutions and ordain such funda-
mental laws as'its own judgment and its own intelli-
gent choice may find best ‘suited to its own interests.
But society can act only by an expression of the
aggregate of its members; and as there may be
members who dissent from the views and determina-
tions of the great mass of society, and it is therefore
necessaryto decide with whom the power of compel-
ling obedience resides, - since there must be obe-
dience in order that there may be peace, —- nature
and reason have determined that this power is {to
reside with a majority of the members. The Ameri-
can constitutions, therefore, are founded wholly upon
the principle, that a majority expresses the will of
the whole society, and may establish, change, and
abrogate ‘forms of government at its pleasure.1 It
follows, as a necessary deduction from this funda-
mental doctrine, that so soon as society has acted in
the formation and establishment of a government,
upon this principle, no change can take place, but
in the constitutional organs of their
own will, has‘ had a fair trial.
1 Gibbon, with that graceful
satire which knew how to hit two
objects with the same stroke of his
pen, describes hereditary monarchy
as “ an expedient which deprives
the multitude of the dangerous, and
indeed the ideal, power of giving
themselves a master.” The his-
torian of the Decline and Fall be-
gan to publish his great work, just
as the American Revolution burst
upon the world. Since that sen-
tence was penned, the experiment
of a system, by which the multi-
tude give to themselves a master,
' We may-notfsaythat its trial is
past, or that . the, system. is estab-
lished beyond" ltht'ev possibility of
further dangers] vBut we may
with a just pride point to its es-
cape, in the days of its first estab-
lishment and greatest danger, and
to the securities which the Consti-
tution of the United States now
afi'ords, against similar perils, when
they threaten the constitutions of
the States.
on. 111.] THE CONFEDERATION. 263
by a new expression of the will of society through
the voice of a majority; and whether a majority de-
sires or has actually decreed a change, is a fact that
must be made certain, and can only be made certain
in one of two modes, -— either by the evidence and
through the channels which the society has previous-
ly ordained for this purpose, or by the submission of
all its members to a violent and successful revolu-
tion.
The first constitution of Massachusetts did not
designate any mode in which it was to be amended
or changed. But no peaceable change can take
place in any government founded on the expressed
Will of a majority of the people, consistently with
the principle on which it had been established, until
it has been ascertained, in some mode, that a change
is demanded by the same authority. The vital im-
portance of ascertaining this fact with precision was
not so clearly perceived, at that early period, as it is
now.
Seizing upon the newly established doctrine, which
made them the sources of all political power, the
people did not at once apprehend the rule which
preserves and upholds that power, and makes the
doctrine itself both practicable and safe. Hence,
when troubles arose, individuals were led to suppose
that they had only to declare a grievance, to demand
a change, and to compel a compliance with their de-
mand by force. So far as they reasoned at all, they
persuaded themselves that, as their government was
the creation of the people, by their own direct act.
264 THE FEDERAL coNsTrTuTroN. ~ [BOOK HI.
bodies of the people could assemble in their primary
capacity, and, by obstructing any of its functions
which they connected with a particular grievance,
produce a reform, which the people have always a
right to make. By overlooking, in this manner, the
only safe and legitimate mode in which the popular
will can be really ascertained, they passed into the
mischiefs of anarchy and rebellion, mistaking the
voices of a minority for the ascertained will of society.
To these tendencies, the recently established gov-
ernments of New England, where the spirit of liberty
was most vigorous, could oppose no efficient check;
while, in any open outbreak, they were without any
external defender, on whose power they could lean.
The Confederation succeeded to the Revolutionary
Congress, as we have more than once had occasion
to observe, with less power than its predecessor might
have exercised. It was formed by a written consti-
tution, yet it was, strictly speaking, scarcely a gov-
ernment. It was a close union of the States ; but it
was a union from which all powers had been jeal-
ously withheld which would have enabled it to inter-
fere with vigor and success between an insurgent
minority of the people of a State and its lawful
rulers. The Revolutionary Congress was once pos-
sessed of such large, indefinite powers, that, upon
principles of public necessity, it might have assumed,
in a great emergency, to hold a direct relation to
the internal concerns of any Colony. It was, in
fact, looked to, in some degree, for direction in the
formation of the State governments, after it had
on. m] 'rrrn cournnnnx'nou. 265
broken the bonds of colonial allegiance to the Eng-
lish crown; and it might very properly have under-
taken to support the governments whose establish-
ment it had recommended. But such a relation
between the early States and the ‘continental pow-
er, though it certainly existed in 1776, was soon
lost in the independent and ealous attitude which
they began to occupy, and the Union rapidly assumed‘
a position, where the character of sovereignty which
it appeared to wear when it promulgated the Decla- '
ration of Independence ‘was scarcely to be discerned.
‘At no period in the history of the Confederation did ‘
it act upon the internal concerns or condition of a
State. Its written articles of union hardly admitted
of a construction which would have enabled it to do
so, and certainly contained no express delegation of
such a power. .
At the same time, some of the State governments,
during the period of which we are treating, were sin-
gularly exposed tov the dangers of anarchy. None of
them had any standing forces of any consequence,
three years after the peace, and the New England
States had no military forces whatever but their mili-
tia. N 0 State could call upon its neighbors for aid
in quelling an insurrection, for their militia would
not have obeyed the summons, if it had been issued;
and no State could call upon the federal govern-
ment, such an; emergency, with any certainty
of success in the application.1
1 A power to interfere in the in- only have been exercised by a broad
ternal concerns of a State could construction of the third of the Ar-
von. 1.' 34
\\ ,!
Ix ' I, {-_-_
266 THE FEDERAL CONSTITUTION. [BOOK m.
In such a state of things, the year 1786 witnessed
an insurrection in Massachusetts of a very dangerous
character, which, from the fortunate circumstance
that her counsels were then guided by a man of sin
gular energy and firmness of character, she was ust
able to subdue. The remote causes of this insurrec-
tion lie too far from the path of our main subject to
be more than summarily stated.
At the close of the Revolutionary war, the State
of Massachusetts was oppressed with an enormous
debt. At the breaking out of that war, the debt of
the Colony was less than one hundred thousand
pounds. The private debt of the State, in the year
1786, was ‘one million three hundred thousand
ticles of Confederation, which was
in these words: “ The said States
hereby severally enter into a firm
league of friendship with each
other, for their common defence,
the security of their liberties, and
their mutual and general welfare;
binding themselves to assist each
other against all force offered to
or attacks made upon them, or any
of them, on account of religion,
sovereignty, trade, or any other
pretence whatever.” When this
is compared with the clear and ex-
plicit provision in the Constitution,
by which it is declared that “the
United States shall guarantee to
every State in this Union a repub-
lican form of government,” there
can be no wonder that a doubt was“
felt in the Congress of 1786—87
as to their powers upon this sub-
ject It is true that the Massa-
chusetts delegation, when they laid
before Congress the measures which
had been taken by the State gov-
ernment to suppress the insurrec-
tion, expressed the confidence of
the legislature that the firmest sup
port and most effectual aid would
have been afforded by the United
States, had it been necessary, and
asserted that such support and aid
were expressly and solemnly stip
ulated by the Articles of Confeder
ation. (Journals, XII. 20. Marc]
9, 1787.) But this was clearly
not the case; and it was not gen
erally supposed in Congress that
the power existed by implication.
All that was done by Congress to-
wards raising troops, at the time
of the insurrection, was done for
the ostensible purpose of protecting
the frontiers against an Indian in-
vasion, as we shall see hereafter.
ea. in. 1 THE CONFEDERATION. 267
pounds, besides two hundred and fifty thousand
pounds due to the ofiicers and soldiers of the State
line of the Revolutionary army. The State’s propor-
tion of the federal debt was not less than one million
and, a half of pounds? According to the customary
mode of taxation, one third of the whole debt was to
be paid by the ratable polls, which scarcely ex-
ceeded ninety thousand.2 The Revolution had made
the people of Massachusetts familiar with the great
general doctrines of liberty and human rights ; but
it had given them little insight into the principles
of revenue and finance, and little acquaintance with
the rules of public economy. No sufficient means,
therefore, to relieve the people from direct taxation,
by encouraging a revival of trade and at the same
time drawing from it a revenue, were devised by the
legislature. The exports of the State, moreover, had
suffered a fearful diminution. The fisheries, which
had been a fruitful source of prosperity to the colony,
had been nearly destroyed by the war, and the mar-
kets of the West Indies and of Europe were now
closed to the products of this lucrative industry, by
which wealth had formerly been drawn from the
wastes of the ocean. The State had scarcely any
other commodity to exchange for the precious metals
in foreign commerce. Its agriculture yielded only a
scanty support to its population, if it yielded so
much; its manufactures were in a languishing con-
dition; and its carrying trade had been driven from
1 Minot’s History of the Insurrection, p. 6. 2 Ibid.
268 THE FEDERAL CONSTITUTION. [BOOK III.
the seas during the war, and was afterwards annihi-
lated by the oppressive policy of England, which suc-
ceeded the Peace. The people were every year grow-
ing poorer than they had ‘been the year before, and
taxes, onerous taxes, beyond their resources and al-
ways odious, were pressing upon them with a con-
stantly increasing accumulation, from which the po-
litical state of the country seemed to promise no relief.’1
\/ But the demand of the tax-gatherer was not the
sole burden which individuals had to encounter.
Private debts had accumulated during the war, in
almost as large a ratio as the public obligations. The
collection of such debts had been generally suspended,
while the struggle for political freedom was going
on ; but that struggle being over, creditors necessa-
rily became active, and were often obliged to be
severe. Suits were multiplied in the courts of law
beyond all former precedent, and the first effect of
this sudden influx of litigation was to bring popular
odium upon the whole machinery of ustice. In a
state of society approaching so nearly to a democracy,
the class of debtors, if numerous, must be politically
formidable. They had begun to be so before the
close of the war. Their clamors and the supposed
necessity of the case led the legislature, in 17 82, to a
violation of principle, in a law known as the Tender
Act, by which executions for debt might be satisfied
by certain articles of property, to be taken at an ap-
praisement. This law was limited in its operation to
1 See the next chapter for some particulars respecting the trade of
Massachusetts.
Ca. m] THE CONFEDERATION. 269
one year; but in the course of that year it taught
the debtors their strength, and gave the first signal
for an attack upon property. A levelling, licentious
spirit, a restless desire for change, and a disposition
to throw down the barriers of“ private rights, at length-
broke forth in conventions, which first voted them-
selves to be the people, and then declared their pro-
ceedings to be constitutional. At these assemblies,
the doctrine was publicly broached, that property
ought to be common, because all had aided in saving
it from confiscation by the power of England. Taxes
were voted to be unnecessary burdens, the courts of
justice to be intolerable grievances, and the legal pro
fession a nuisance. A revision of the constitution
was demanded, in order to abolish the Senate, reform‘
the representation in the House, and make all the
civil officers of the government eligible by the people.
A passive declaration of their grievances did not, V
however, content the disaffected citizens of Massachu-
setts. They proceeded to enforce their demands. The
courts of justice were the nearest objects for attack,
as well as the most immediately connected with the
chief objects of their complaints. Armed mobs sur-
rounded the court-houses in several counties, and
sometimes effectually obstructed the sessions of the
courts. These acts were repeated, until, in the
autumn of 1786, the insurrection broke out in a
formidable manner in the western part of the State.
The insurgents actually ‘embodied, and in arms
against the government, in the month of Decem-
ber, in the counties of Worcester and Hampshire,
270 THE FEDERAL CONSTITUTION. [BOOK In.
numbered about fifteen hundred men, and were
headed by one Daniel Shays, who had been a cap-
tain in the continental army.1
The executive chair of the State was at that time
filled by James Bowdoin; a statesman, firm, pru-
dent, of high principle, and devoted to the cause of
constitutional order. In .the first stages of the dis-
affection, he had been thwarted by a House of Rep-
resentatives, in which the majority were strongly
inclined to sympathize with the general spirit of
the insurgents; but the Senate had supported him.
Afterwards, when the movement grew more danger-
ous, the legislature became more reconciled to the
use of vigorous means to vindicate the authority of
the government, and a short time before it actually
took the form of an armed and organized rebellion
against the Commonwealth, they had encouraged the
Governor to use the powers vested in him by the
constitution to enforce obedience to the laws. The
Executive promptly met the emergency. A body of
militia was marched against the insurgents, and by
the middle of February they were dispersed or cap-
tured, with but little loss of life.
The actual resources of the State, however, to meet
an emergency of this kind, were feeble and few. A
voluntary loan, from a few public-spirited individu-
als, supplied the necessary funds, of which the treas-
ury of the State was wholly destitute.2 At one time,
so general was the prevalence of discontent, even
1 Minot’s History of the Insur- 9 Governor Bowdoin’s Speech to
rection, p. 82 et seq. the Legislature, February 3, 1787.
on. 111.] THE coNEEnEEATroN. 271
among the militia on whom the government were I
obliged to rely, that men were known openly to
change sides in the field, when the first bodies of
troops were called out? Had the government of the
State been in the hands of a person less firm and less
careless of popularity than Bowdoin, it would have
been given up to anarchy and civil confusion. The
political situation of the country did not seem to
admit of an application to Congress for direct assist-
ance, and there is no reason to suppose that such an
application would have been effectively answered, if
it had been made.2
When the news of the disturbances in Massachug
setts, in the autumn of 1786, was received in Con-
gress, it happened that intelligence from the Western
country indicated a hostile disposition on the part
of several Indian tribes against the frontier settle-
ments. A resolve was unanimously adopted, direct-
ing one thousand three hundred and forty additional
troops to be raised, for the term of three years, for
the protection and support of the States bordering on
the Western territory and the settlements on and
near the Mississippi, and to secure and facilitate the
surveying and selling of the public lands.3 From '
the fact that the whole of these troops were ordered
to be raised by the four New England States, and
1 Minot.
9 In the spring of 1786, the State
had asked the loan from Congress
of sixty pieces of field artillery.
The application was refused, by
the negative vote of six States out
of eight, one being divided, and
the delegation from Massachusetts
alone supporting it. Journals, XI.
65-67. April 19, 1786.
3 Journals, XI. 258.
30, 1786.
October
at‘
‘r
"‘ \
t
272 THE FEDERAL CONSTITUTION. [BOOK III.
one half of them by the State of Massachusetts, and
from other circumstances, it is quite apparent that
the object assigned was an ostensible one, and that
Congress intended by this resolve to strengthen the
government of that State and to overawe the insur-
gents.1 But this motive could not be publicly an-
nounced. The enlistment went on very slowly, how-
ever, until February, when a motion was made by
Mr. Pinckney of South Carolina to stop it altogether,
upon the ground that the insurrection in Massachu-
setts, the real, though not the ostensible, object of
the resolve, had been crushed. Mr. King of Massa-
‘chusetts earnestly entreated that the federal enlist-
ments might be permitted to go on, otherwise the
greatest alarm would be felt by the government of
the State and its friends, and the insurrection might
be rekindled. Mr. Madison advised that the pro-
posal to rescind the order for the enlistments should
be suspended, to await the course of events in Massa-'
chusetts. At the same time, he admitted that it would
be dificult to reconcile an interference of Congress
in the internal controversies of a State with the
tenor of the Articles of Confederation.2 The whole
subject was postponed, and the direct question of the
power of Congress was not acted upon. In the Con-
1 It was well understood, for in-
stance, in the legislature of Vir-
ginia, that this was the real pur-
pose; for Mr. Madison says that
this consideration inspired the ardor
with which they voted, towards
their quota of the funds called for
to defray the expenses of this levy,
a tax on tobacco, which would
scarcely have been granted for any
other purpose, as its operation was
very unequal. Elliot’s Debates,
V. 95. February 19, 1787.
2 Ibid.
CH. 111] THE comnnmrrox. 273
vention which framed the Constitution, it was very
early declared, that the Confederation had neither
constitutional power, nor means, to interfere in case
of a rebellion in any State.1
This generation can scarcely depict to itself the
alarm which these disturbances spread through the
country, and the extreme peril to which the whole
fabric of society in New England was exposed. The
numbers of the disaffected in Massachusetts amounted
to one fifth of the inhabitants in several of the popu-
lous counties. Their doctrines and purposes were
embraced by many young, active, and desperate men
in Rhode Island, Connecticut, and New Hampshire,
and the whole of this faction in the four States was
capable of furnishing a body of twelve or fifteen thou-
sand men, bent on annihilating property, and can-
celling all debts, public and private.2
But this great peril was not without beneficial
consequences. It displayed, at a critical moment,
when a project of amending the Federal Constitution
for other purposes was encountering much opposi-
tion, a more dangerous deficiency than any to which
the public mind had hitherto been turned. While
thoughtful and considerate men were speculating
upon the causes of diminished prosperity and the
general feebleness of the system of government, a
gulf suddenly yawned beneath their feet, threatening
1 Ibid, 127, to General Washington. See a
2 This was the estimate of their letter from General Washington to
numbers formed by General Knox, Mr. Madison. Works, IX. 207.
on careful inquiry, and by him given
von. 1. 35
274 THE FEDERAL CONSTITUTION. [BOOK n1.
- its place.
ruin to the whole social fabric. It was but a short
time before, that the people of this country had shed
their blood to obtain constitutions of their own choice
and making. Now, they seemed as ready to over-
turn them as they had once been to extort from
tyranny the power of creating and erecting them in
It was manifest, that to achieve the inde-
pendence of a country is but half of the great under-
taking of liberty; — that, after freedom, there must
come security, order, the wise disposal of power, and
great institutions on which society may repose in
safety. It was clear, that the Federal Union alone
could certainly uphold the liberty which it had
gained for the people of the States, and that, to
enable it to do so, it must become a government.1
From his retreat at Mount Vernon, Washington
observed the progress of these disorders with intense
anxiety. To him, they carried the strongest evi-
dence of a want of energy in the system of the
Federal Union. They did more than all things else
to convince him that “ a liberal and energetic consti-
tution, well checked and well watched to prevent
encroachments, might restore us to that degree of
respectability and consequence to which we had the
fairest prospect of attaining.”2 He was kept accu-
1 Washington, writing to Henry
Lee in Congress, October 31, 1786,
says : “ You talk, my good sir, of
employing influence to appease the
present tumults in Massachusetts.
I know not where that influence is
to be found, or, if attainable, that
it would be a proper remedy for
the disorders. Influence is not gov-
ernment. Let us have a govern-
ment by which our lives, liberties,
and properties will be secured, or
let us know the worst at once ‘
Works, IX. 204.
2 Ibid. 208.
on. 111.] THE CONFEDERATION. 275
rately informed of the state of things in New Eng-
land, and the probability that he would be obliged
to come forward, and take an active part in the sup-
port of order against civil discord, was directly inti-
mated to him? He had foreseen the possibility of
this ; but the successful issue of the struggle relieved
him from the contemplation of this painful task, and
left to him only the duty of the whole weight
of his influence and presence in the Convention,
which was to assemble in the following May, for the
revision of the Federal Constitution.
1 Ibid. 221.
CHAPTER IV.
ORIGIN AND NEOESSITY or THE POWER TO REGULATE CoMMERcn.
AMONG all the causes which led to the establish-
ment of the Constitution of the United States, there
is none more important, and none that is less appre-
ciated at\ the present day, ‘than the inability of the
Confederation to manage the foreign commerce of the
country. We have seen that, when the Articles of Con-
federation were proposed for adoption by the States,
the State of New Jersey remonstrated against the ab-
sence of all provision for placing the foreign trade of
the States under the regulation of the federal gov-
ernment. But this remonstrance was without effect,
and the instrument went into operation in 1'7 81,
with no other restriction upon the powers of the
States to regulate trade according to their pleasure,
than a prohibition against levying imposts or duties
which would interfere with the treaties then pro-
posed. While the war continued, the subject was
of comparatively little importance. But the return
of peace found this country capable of becoming a
great commercial‘, as Well as agricultural nation; and
it could not be overlooked, that its government pos-
sessed very inadequate means for establishing such
on. Ivl] THE CONFEDERATION. 2'77
relations with foreign powers as would best develop
its resources and‘ conduce to its internal harmony
and prosperity. How early this great interest had
attracted the attention of those who were most capa-
ble of enlarged and statesmanlike views of the actual
nature of the Union and the wants of the States,
there are perhaps as yet before the world no suffi-
cient means of determining. We know, however,
that, before the peace, Hamilton saw clearly that it
was essential for the 'United States to be vested with
a general s'uperintendence ‘of trade, both for pur-
poses of revenue and regulation; that he foresaw the
encouragement of our own products and manufac-
tures, by means of general prohibitions of particular
articles and a judicious arrangement of duties, and
that this could only be effected by a central author-
ity; and that the due observance of any commercial
treaty which the United States might make with a
foreign power could not be expected, if the different
States retained the regulation of their own trade, and
thus held the practical construction of treaties in
their own hands.1 ' '
But it does not appear that, among the other prin-
cipal statesmen of the Revolution, these ideas had
made much progress, until the entire incapacity of _
the Confederation to negotiate advantageous com-
mercial treaties, for want of adequate power to en-
. 1 Life of Hamilton, II. 233, 234. 1783, and especially the eighth res-
See also his resolutions on the de- olution. Works of Hamilton, I]
fects of the federal government, in- 269.
tended to be offered in Congress in
278 THE FEDERAL coNsTITUTIoN. [BOOK In.
force them, had displayed the actual weakness of its
position, and the oppressive measures of other coun-
tries had taught them that there was but one remedy
,for such evils. Then, indeed, they saw that the
United States could have a standing as a commercial
power among the other powers of the world, only
when their representatives could be received and
dealt with as the representatives of one, and not of
thirteen sovereignties; and that, if the measures of
other countries, injurious to the trade of America,
were to be counteracted at all, it must be by a power
that could prohibit access to all the States alike, or
grant it as to all, as circumstances might require.1
1 Hamilton himself, in some pa-
pers which he published in 1781,
under the title of The Continental-
ist, gave the general sum of Amer-
ican statesmanship and its oppor-
tunities, down to that period. The
events of the next seven years gave
it a wonderful development. “It
would be the extreme of vanity in
us,” said he, “not to be sensible
that we began this revolution with
very vague and confined notions of
the practical business of govern-
ment. To the greater part of us,
it was a novelty; of those who
under the former constitution had
had opportunities of acquiring ex-
perience, a large proportion ad-
hered to the opposite side, and the
remainder can only be supposed to
have possessed ideas adapted to the
narrow colonial sphere in which
they had been accustomed to move,
not of that enlarged kind suited to
the government of an independent
nation. There were, no doubt, ex-
ceptions to these observations ; ——
men in all respects qualified for
conducting the public affairs with
skill and advantage ; —-but their
number was small; they were not
always brought forward in our coun
oils; and when they were, their
influence was too commonly borne
down by the prevailing torrent of
ignorance and prejudice. On a ret-
rospect, however, of our transac-
tions, under the disadvantages with
which we commenced, it is per-
haps more to be wondered at, that
we have done so well, than that
we have not done better. There
are, indeed, some traits in our con
duct, as conspicuous for sound pol
icy as others for magnanimity.
But, on the other hand, it must
also he confessed, there have been
many false steps, many chimerical
cs. IV.] THE CONFEDERATION. 279
The actual commercial relations of the United
States with other countries, when the peace took
place, were confined to treaties of amity and com-
merce with France, Sweden, and the Netherlands;
the two latter transcending, in some degree, the
powers of the Confederation. In 17 7 6, the Revolu-
tionary Congress had adopted a plan of treaties to be
proposed to France and Spain, which contemplated
that the subjects of each country should pay no
duties in the other except such as were paid by na-
tives, and should have the same rights and privileges
as natives in respect to navigation and commerce?
When a treaty of amity and commerce came to
be concluded with France, in 17 7 8, the footing on
which the subjects of the two countries were placed,
in the dominions- of each other, was that of the most
favored nations, instead of that of natives.2 The
Articles of Confederation, proposed in 1777, and
finally ratified in March, 17 81, reserved to the States
the right of levying duties and imposts, excepting
only such as would interfere with any treaties
that might be made “ pursuant to the treaties pro-
posed to France and Spain.” The United States
could therefore constitutionally complete these two
projects and Utopian speculations,
in the management of our civil as
well as of our military affairs. A
part of these were the natural ef-
fects of the spirit of the times, dic-
tated by our situation. An ex-
treme jealousy of power is the at-
tendant on all popular revolutions,
and has seldom been without its
evils. It is to this source we are
to trace many of the fatal mistakes,
which have so deeply endangered
the common cause ; particularly
that defect which will be the object
of these remarks, -— a want of pow-
er in Congress.” Works, II. 186.
1 Secret Journals, II. 7, 8.
2 Ibid: 59.
280 THE FEDERAL CONSTITUTION. [BOOK m.
treaties, and such as were dependent upon them, but
no others which should have the effect of restraining
the legislatures of the States from prohibiting the
exportation or importation of any species of goods or
merchandise, or laying whatever duties or imposts
they thought proper.1
In 1782, negotiations were entered into for a simi-
lar treaty with the States General of the Netherlands.
When the instructions to Mr. Adams to negotiate
this treaty were under consideration in Congress, it
was recollected that the French treaty contained a
stipulation, the effect of which would enable the
heirs of the subjects of either party, dying in the
territories of the other, to inherit real property, with-
out obtaining letters of naturalization.2 The doubt
suggested itself, -- as it well might, — whether such
an indefinite license to aliens to possess real property
within the United States, was not an encroachment
upon the rights of the States. It seems to have been
expected, when the French treaty was entered into,
that the States would acquiesce in this provision, on
account of the peculiar relations of this country to
1 Articles of Confederation, Art.
VI., IX. The expression in the
sixth article was: “ N 0 State shall
lay any imposts, 820. that shall in-
interfere with any stipulations in
treaties entered into by the United
States the general power of levy
ing duties and laying prohibitions.
2 Secret Journals, II. 65, 66.
Art. XIII. of the Treaty of Amity
and Commerce with France. The
expression employed was, “goods
States with any king, prince, or
state, in pursuance of any treaties
already proposed by Congress to
the court of France and Spain.”
The ninth article saved to the
movable and immovable,” and the
right of succession was given, ab
intestato, without first obtaining
letters of naturalization.
on. IV.] THE CONFEDERATION. 281
France, and because of the saving clause in the Arti-
cles of Confederation in favor of the I treaties to be
made with that power and with Spain.1 But such a
stipulation as this was clearly not within the mean-
ing of that clause; and it was received with great re-
pugnance by many of the States.2 In the treaty with
the Netherlands, it was proposed to insert a similar
provision; but it was found to be extremely improb-
able that the States would comply with a similar
engagement with another power. The language was
therefore varied, so as to give the privilege of inherit-
ance only as to the “ effects” of persons dying in the
country; — an expression which would probably ex-
clude real property, but which might possibly be
construed to include it.3
With regard to duties and imposts, the Dutch
treaty contained the same stipulation as the French,
putting the subjects of either power on the footing
of the most favored nations, and thereby holding out
to the subjects of the United Provinces the promise
of an equality, under the laws of the United States,
with the subjects of France.4 The same stipulation
was inserted in a treaty subsequently made at Paris
with the King of Sweden.5
- If these stipulations were supposed or intended to
1 See a report on this prqjet of
the treaty, made by Mr. Madison,
July 17, 1782. Secret Journals,
111' 142 - 144.
2 Ibid. '
3 Art. VI. of the Treaty of Am-
ity and Commerce with the Neth-
vor. 1 36
erlands, executed by Mr. Adams
at the Hague, October 8, 1782
Journals, VH1. 96.
4 Ibid., Art. 11., III.
5 April 3, 1783.
V11]. 386-398.
Journals,
282 THE FEDERAL CONSTITUTION. [BOOK III.
be binding upon the States, so as to restrain them
from adopting, within their respective jurisdictions,
any other rule than that fixed by the French treaty,
for the subjects of the United Provinces and the
King of Sweden, it is quite clear that the Articles
of Confederation gave no authority to Congress to
make them. They could have no effect, therefore, in
producing a uniformity of regulation throughout the
United States, with regard to the trade with Sweden
and the Netherlands. '
The relations of the United States with Great
Britain .were, however, far more important; than their
relations with Sweden or Holland. When’ the war
was drawing to a close, and the provisional articles
of peace had been agreed upon, a measure was in
preparation in England, under the auspices of Mr.
Pitt, designed as a temporary arrangement of com-
mercial intercourse between Great Britain and the
United States, and which would have enabled‘ the
government of this country to have formed a treaty
so advantageous, that the States would doubtless
vhave conformed their legislation to its provisions.
That great statesman perceived, that it was ex-
tremely desirable to establish the intercourse of the
two countries on the most enlarged principles of
reciprocal benefit, and his purpose was, by a pro-
visional arrangement, to evince the disposition of
England to be on terms of amity with the United
States, preparatory to the negotiation of a treaty.1
1 Mr. Pitt’s bill was brought out of oflice immediately atter-
in in March, 1783, and he went wards.
Q
on. 1v] THE CONFEDERATION. 283
But the administration, in which he was thenwChan-
cellor of the Exchequer, went out of office imme-
diately after he had proposed this measure, and their
successors, following a totally different line of pol-
icy, procured an 'act of Parliament authorizing the
King in Council to regulate the commercial inter-
course between the, United States and Great Britain
and her dependencies? . .
Mr. Pitt’s bill . was designed to admit the vessels
and subjects of the United States into all the ports
of Great Britain, in the same manner as the subjects
and vessels of other independent‘ sovereign~ states,
and to admit merchandise and goods, the growth,
produce, or manufacture of this country, under the
same duties and charges- as if they were the property
of British subjects, imported in British vessels. It
also 1' proposed to establish an entirely free trade be-
tween the United States and the British islands, col-
onies, and plantations in America. The new admin- '
istration, on the contrary, believing that this would
encourage the American marine, to the ruin of that
of Great Britain, and would deprive the latter of a
monopoly in the consumption of her colonies, and
in their carrying trade, resolved to reverse this entire
policy. In this course, they were encouraged by . the
views which they took of the internal situation of
this country, and which were, to a great extent, jus-
tified by the fact. They believed that we could not
act, as‘ a nation, upon questions of commerce; that
1 April, 1783
284 THE FEDERAL CONSTITUTION. [BOOK m
the climates, the staples, and the manners of the
States were different, and their interests therefore
opposite; and that no combination was likely to
take place, from which England would have reason
to fear retaliation. They supposed, that, inasmuch
as the Confederation had no power to make any but
general treaties, and as the States had reserved to
themselves nearly every power concerning the regu-
lation of trade, no treaty could be made that would
be binding upon all the States; and that, if treaties
should become necessary, they must be made with
the States respectively. But they denied that treaties
were necessary, and maintained that it would be
unwise to enter at present into any arrangements by
which they might not wish afterwards to be bound.
They determined, therefore, to deal with this country
as a collection of rival States, with each of which
they could make their own terms, after the pressure
of their policy, and the impossibility of escaping
from its effects, had begun to be felt. They accord-
ingly began, by excluding from the British West
Indies, under Orders in Council, the whole Ameri-
can marine, and by prohibiting fish, and many im-
portant articles of our produce, from being carried
there, even in British vessels.1
At the termination of the war, the foreign com-
merce of the United States was capable of great ex-
1 July, 1783. Their idea was, would soon enter into all necessary
that, if the American States should regulations with the consul, and
choose to send consuls, they should that nothing more was necessary.
be received, and consuls sent to See Lord Shet‘field’s Observations
them in return - that each State on American Commerce.
on. N] THE CONFEDERATION. 285
pansion. It consisted of three important branches,—
the trade of the Eastern, that of the Middle, and that
of the Southern States; each of which required at
once the means of reaching foreign markets. The
rice and indigo of the South might be carried to
Europe. The Middle States might export to Europe
tobacco, tar, wheat, and flour; and to the West
Indies, pork, beef, bread, flour, lumber, tar, and iron.
The Eastern States might supply the markets of
Europe with spars, ship-timber, staves, boards, fish,
and oil, and those of the West Indies with‘ lumber,
pork, beef, live cattle, horses, cider, and fish. The
whole of these great interests of course received a
sudden and almost fatal blow from the English
Orders in Council, and no means whatever existed
of countervailing their effects, but such as each State
could provide for its own people, by its own legisla-
tion. 7
Congress, however, awoke to the perception of an
eflicient and appropriate remedy, of a temporary
character, and prepared to apply it, through an
amendment of their powers. For ~ the purpose of
meeting the policy of Great Britain with similar
restrictions on her commerce, they recommended to
the States to vest in Congress, for the term of fifteen
years, authority to prohibit the vessels of any power,
not having treaties of commerce" with the United
States, from ‘importing or exporting any commodities
into or ‘from any‘ of the States, and "also with the
power of ‘prohibiting, for a like term, the ‘subjects of
any foreign country, unless authorized \ by treaty,
286 THE FEDERAL CONSTITUTION. [BOOK 111
from importing into the United States any merchan-
dise not the produce or manufacture of such coun-
try.1 There was already before the States, as we
have seen, in the revenue system of 17 83, a proposal
to them to vest in Congress power to levy certain
duties on foreign commodities, for the same period;
and if these two grants of power had been made, and
made promptly, by the States, Congress would have
possessed, for a time, an effectual control over com-
merce, and the practical means of forming suitable
commercial treaties.
But the proposal of the 30th of April, 1784, met
with a tardy and reluctant attention among the
States. Only one of them had acted upon it, as late
as the following February, when the delegates for
Maryland laid before Congress an act of that State
upon the subj ect.2 New Hampshire was the next
State to comply, in the succeeding J une.3 In the
mean time, however, Congress prepared to prosecute
negotiations in Europe, trusting to the chances of an
enlargement of their powers, in pursuance of their
recommendation. Accordingly, they proceeded, in
the spring of 17 84, to appoint a commission to ne-
gotiate commercial treaties, and settled the prin-
ciples on which such treaties were to be formed.
The leading principle then determined on was, that
each party to the treaty should have a right to carry
their own produce, manufactures, and merchandise
1 April 30, 1784. 3 By an act passed June 22-
2 February 14. 1785. Journals, 23, 1785; laid before Congress
X. 53. October 10, 1785. Ibid. 353.
cs IV.] THE CONFEDERATION. 287
in their own bottoms to the ports of the other, and
to take thence the produce, manufactures, and mer-
chandise of the other, paying, in both cases, such
duties only as were paid by the most favored nation.
The resolves appointing the commission also con-
tained a very explicit direction, that “ the United
States, in all such treaties, and in every case arising
under them, should be considered as one nation,
upon the principles of the Federal Constitution.” 1
Yet the Federal Constitution did not, at that very
moment, make the United States one nation for
this purpose. Its principles gave to Congress no
authority which could prevent the States from pro-
hibiting any exportations or importations whatever,
as to their respective territories ; and the validity of
these treaties, thus proposed to be negotiated with
fifteen European powers, depended altogether upon
the precarious assent of the thirteen States to the
alterations in the principles of the Federal Constitu-
tion which Congress had proposed.
That assent was not likely to be given, so as to
become effectual for the purposes for which it had
been asked. The action of the States was found, in
the spring of 1786, to present a mass of incongrui-
1 The commission consisted of
Mr. John Adams, then at the Hague,
Dr. Franklin, then in France, and
Mr. Jefferson, then in Congress.
Mr. J efl'erson sailed from 'Boston
on the 5th of July, and arrived in
Paris on the 6th of August, 1784.
(Works, I. 49.) The powers
with whom they were to nego-
tiate commercial treaties were Rus-
sia, Austria, Prussia, Denmark,
Saxony, Hamburg, Great Britain,
Spain, Portugal, Genoa, Tuscany,
Rome, Naples, Venice, Sardinia,
and the Ottoman Porte. Secret
Journals, III. 484-489. May 7
1784.
288 THE FEDERAL CoNsTITUTIoN. [BOOK III.
ties, which rendered the whole scheme of thus increas-
ing the federal powers almost hopeless. Four of the
States had passed laws, conforming substantially to
the recommendations of Congress, but restraining
their operation until the other States should have
complied.1 Three of the States had passed the requi-
site acts, and had fixed different periods at which
they were to take effect.2 One State had granted
full powers to regulate its trade, by restrictions or
duties, for fifteen years, with a proviso that the law
should be suspended until all the other States had
done the same.3 Another State had granted power,
for twenty-five years, to regulate trade‘ between the
respective States, and to prohibit or regulate the im-
portation only of foreign goods in foreign vessels, but
restricting the operation of the act until the other
States had passed similar laws.‘ Still another State
had granted powers like the last, but without limi-
tation of time, and with the proviso that, when all
the other States had made the same grants, it should
become an Article of the Confederation.5 The three
remaining States had passed no act upon the sub-
ject.6 Upon these conflicting and irreconcilable pro-
visions, Congress could take no other action, than to
call the attention of the States again to the original
proposal, and request them to revise their laws.7
1 Massachusetts, New York, 5 North Carolina.
New Jersey, and Virginia. 5 Delaware, South Carolina, and
9 Connecticut, Pennsylvania, and Georgia.
Maryland. '7 See a report made in Con-
3 New Hampshire. gress, March 3, 1786. Journals,
4 Rhode Island. XI. 41.
cn. IV.] THE CONFEDERATION. 289
While this discordant legislation was manifesting at
home the entire impracticability of amending the Fed-
eral Constitution by means of the separate action of
the State legislatures, the commissioners abroad were
engaged in efforts, nearly as fruitless, to negotiate
the treaties which they had been instructed to make.
The commission was opened at Paris on the 13th of
August, 1784, and its objects announced to the differ-
ent governments. France was not disposed to change
the existing relations. England perceived the real
want of power in the federal government, and recog-
nized nothing in the commission but the fact that
it had been issued by Congress, while the separate
States had conferred no powers upon either Congress
or the commissioners.1
Prussia alone entered into a
1 The Duke of Dorset, the Eng-
lish Ambassador at Paris, wrote to
the commissioners (March 26, 1785)
as follows : “ Having communi-
cated to my court the readiness you
expressed in your letter to me of
the 9th of December to remove to
London, for the purpose of treating
upon such points as may materially
concern the interests, both political
and commercial, of Great Britain
and America; and having at the
same time represented that you
declared yourselves to be fully au-
thorized and empowered to nego-
tiate, I have been, in answer there-
to, instructed to learn from you,
gentlemen, what is the real nature
of the powers with which you are
invested, — whether you are mere-
ly commissioned by Congress, or
von. 1. 37
whether you have received sepa-
rate powers from the respective
States. A committee of North
American merchants have waited
upon his Majesty’s principal Sec
retary of State for Foreign Affairs,
to express how anxiously they
wished to be informed upon this
subject; repeated experience hav-
ing taught them in particular, as
well as the public in general, how
little the authority of Congress
could avail in any respect, where
the interest of any one individual
State was even concerned, and par-
ticularly so where the concerns of
that State might be supposed to
militate against such resolutions
as Congress might think proper to
adopt. The apparent determina-
tion of the respective States to reg-
290 THE FEDERAL CQNSTITUTION. [BOOK III.
treaty, upon some of the principles laid down in the
commission, and soon after it was executed, ‘the com
missioners ceased to do any thing whatever.1
During the period which elapsed from the Treaty
of Peace with England to the assembling of the Con-
vention at Annapolis, the legislation of the different
States, designed to protect themselves against the
policy of England, was of course without system or
concert, and without uniformity of regulation. At
one time duties were made extravagantly high; at
another, competition reduced them below the point
at which any considerable revenue could be derived,
At one time, the States acted in open hostility to
each other; at another, they contemplated commer-
cial leagues, without regard to the prohibition con-
tained in the Articles of Confederation. N o steady
system was pursued by any of them, and the ineffi-
cacy of State legislation became at length so appar-
ent, that a conviction of the necessity of new powers
in Congress forced itself upon the public mind.
ulate their own separate interests
renders it absolutely necessary, to-
wards forming a permanent system
of commerce, that my court should
oe informed how far the commis-
sioners can be duly authorized to
enter into any engagements with
Great Britain, which it may not
be in the power of any one of the
States to render totally fruitless
and ineffectual.” Diplomatic Cor-
respondence, II. 297.
1 Jefi'erson’s Works, I. 50, 51.
The whole proceedings of this com-
mission may be found in the Diplo-
matic Correspondence, II. 193 - 346.
' CHAPTER V.
1783-1787.
THE Punmc Lamas. —-GOVERNMENT OF THE NORTHWESTERN TERRI-
TORY.-—THREATENED Loss on THE WESTERN SETTLEMENTS.
\
N,
THE Confederation, although preceded b a cession
of Western territory from the ’,State of New York for
the use of the United ' States, dontained no grant of
power to Congress to hold,. manage, or dispose of
such property. :Tlfer‘e .had been, ‘while the Articles
of Confederation were under discussion in Congress, a
proposal to insert a provision, giving to Congress the
sole and exclusive right and power to ascertain and
fix the western boundary of such States as claimed
to the Mississippi or the South Sea, and to lay out
the land beyond the boundary so ascertained into
separate and independent States, from time to time,
as the numbers and circumstances of the inhabitants
might require? This proposal was negatived by the
vote of every State except Maryland and New J ersey.2
Its rejection caused the adoption of the Confedera-
tion to be postponed for a period of more than two
years after it was submitted to the States.3 Virginia
1 October 15, 1777. Secret 9 Ibid.
.lour'als, I. 328. 3 See the account of the adop-
292 THE FEDERAL CoNsTITUTIoN. [BOOK 1n
had set up claims to an indefinite extent of territory,
stretching far into the Western wilderness, which
were looked upon with especial jealousy by Mary-
land; and when the Articles of Confederation came
before the legislature of that State for consideration,
the absence of any provision vesting in the Union any
control over these claims, or any power to ascertain
and fix the western boundaries of the great States,
became at once a cause of irritation and alarm. The
steps taken by Maryland to have this power intro-
duced into the Articles have already been detailed.1
But the Articles could not be amended. Congress
could only make efforts to remove this impediment
to their adoption, by recommending to the States to
cede their territorial claims to the Union. The first
step which they took, for this purpose, was to rec-
ommend to the State of Virginia, and all the other
States similarly situated, not to make sales of unap-
propriated lands during the continuance of the war.2
This was followed by a full consideration of the
subject presented by the objections of Maryland and
the remonstrance of Virginia. Declining to reopen
the question of the merits of policy of attempting
to engraft the proposed power upon the Confedera-
tion, Congress deemed it more advisable to endeavor
to procure a surrender of a portion of the territorial
claims of the several States.3 In pressing a recom-
mendation to this effect, they were greatly a' e by


tion of the Confederation, ante, pp. 2 October 30, 17 \Jmgiajls
131 - 141. V. 401, 402.
1 Ante, pp. 131-136 3 September 6,)“780. ‘
on. v.] THE conrnnnnn'rmn. 293
the course of the State of New York, which had
already authorized its delegates in Congress to limit
its western boundaries, and to cede a portion of its
vacant lands to the United States.1 They then im-
mediately declared, by resolve, the purposes for which
such cessions were to be held. The territories were
to be disposed of for the common benefit of the
United States; to be settled and formed into distinct
republican States, which should become members of
the Federal Union, and have the same rights of
sovereignty, freedom, and independence as the oth-
er States. Each State so formed was to contain a
suitable extent of territory, not less than one hun-
dred, nor more than one hundred and, miles
square; the necessary expenses incurred by any State "
in acquiring the territory ceded, were to be reim-
bursed; and ‘the lands were to be granted or set,
tled at such times, and under such regulations, as
should thereafter be agreed upon by the United
States in Congress assembled, or any nine or more
of them.2
The cessions were made under the guaranties of
this resolve. Strictly speaking, there was no express
‘ constitutional power under which Congress could
that act, either before or after the adoption of the,
Articles of Confederation. Before that period, if the
United States could acquire and hold lands, for any
purpose, it could only be by the common attribute
of sovereignty belonging to every government. Per-
1 February 19, 1780. 9 October 10, 1780.
v‘, '
‘l
294 THE .E‘EDEBAL CONSTITUTION. [BOOK III.
haps this power existed, by implication, in the revo-
lutionary government; but the compact which was
to constitute the new government contained no au-
thority for the establishment of new States within
the limits of the Union. But when, aside from the
Articles of Confederation, and before they had been
adopted, the Revolutionary/Q’Congress undertook, in
17 80, to hold out these inducements to the States,
as motives for their adoption of that instrument, and
these motives were acted upon and the cessions made,
it must be taken that the territory came rightfully
into the possession of the United States. Whether
the adoption of the Articles, containing no power for
the government of such territories, or for the admis-
sion of new States into the Union, did not place the
new government in a position here, if it acted at
all, it would act beyond the sbke of its constitu-
tional authority, certainly admitted of grave ques-
tion.1 But the acquisition of the territory itself
rested upon acts, which were so directly and ex-
pressly connected with the establishment of the new
Union under the Confederation, as to make the ac-
quisition itself part of the fundamental conditions of
that Union, and the principal guaranty of its con-
tinuance. Among the declared purposes f r, wfich
these acquisitions were made, was that oaxwfiriipg
them into new States, to be admitted into nion;
and as all the States acquiesced in and?‘ embraced
this purpose, they may be said to have conferred

1 The Federalist.
on. v.] THE CONFEDERATION. 295
upon Congress an implied power to legislate to car-
ry it into effect. Still, the want of an express au-
thority in the Articles thus to deal with acquired
territory was afterwards felt and insisted upon, as
the Confederation drew towards the close of its ca-
reer?
Virginia, in 1781, offered to make a cession to
the United States of her title to lands northwest of
the Ohio, upon certain conditions, which were not
satisfactory, and the subject had not been acted upon
in Congress when the revenue system of 1783 was
adopted for recommendation to the States. Looking
to the prospect of vacant lands, as a means of hasten-
ing the extinguishment of the public debts, as well
as of establishing the harmony of the Union, Con-
gress accompanied the recommendation of the rev-
enue system by new solicitations to the States which
had made no cessions of their public lands, or had
made them in part only, to comply fully with the for-
mer recommendations. This drew from the State of
New Jersey, apprehensive that the offer of Virginia
might be accepted, a remonstranee against the cession
proposed by that State, as partial, unjust, and illib-
eral.2 Congress again took the subject into consider-
ation, examined the conditions which the legislature
of Virginia had annexed to their proposed grant, de-
clared some of them inadmissible, and stated the con-
ditions on‘which the cession could be received.3 Vir-
ginia complied with the terms proposed by Congress,
1 Ibid. 3 September 13, 1783.
9 June 20, 1783. '
296 TEE FEDERAL CONSTITUTION. [BOOK III.
and upon those terms ceded to the United States all
right, title, and claim, both of soil and jurisdiction,
which the State then had to the territory within the
limits of its charter, lying to the northwest of the
river Ohio. That magnificent region, in which now
lie the powerful States of Ohio, Indiana, Illinois,
Michigan, and Wisconsin, became the property of
the United States, by a grant of twenty lines, exe-
cuted in Congress by Thomas Jefferson and three of
his colleagues, on the 1st day of March, 1784..1
Soon after this cession had been completed, Con-
gress passed a resolve for the regulation of the terri-
tory that had been or might be ceded to the United
States, for the establishment of temporary and per-
manent governments by the settlers, and for the
1 The granting part of the deed
of cession, exclusive of its recitals,
is as follows : “ That we, the said
Thomas Jefferson, Samuel Hardy,
Arthur Lee, and James Munroe,
by virtue of the power and author-
ity committed to us by the act of
the said General Assembly of Vir-
ginia before recited, and in the
name and for and on behalf of the
said Commonwealth, do by these
presents convey, transfer, assign,
and make over unto the United
States in Congress assembled, for
the benefit of the said States, Vir-
ginia inclusive, all right, title, and
claim, as well of soil as of juris-
diction, which the said Common-
wealth hath to the territory or
tract of country within the lines
of the Virginia charter, situate,
lying, and being to the northwest
of the river Ohio, to and for the
uses and purposes, and on the con-
ditions, of the said recited act.”
The cession was made with the
reservation of such a portion of
the territory ceded, between the
rivers Scioto and Little Miami, as
might be required to make up the
deficiencies of land on the south
side of the Ohio, called the Green
River lands, reserved for the Vir-
ginia troops on continental estab-
lishment. (Journals, IX. 67 - 69.)
Subsequently, the act of cession
was altered, so as to admit of the
formation of not more than five, nor
less than three States, of a size
more convenient than that described
in the act of cession and in the re-
solve of October 10, 1780. (Jour-
nals, XI. 139, 140. July 9, 1786.)
0n. v.] THE conrnnnnn'rron. 297
admission of the new States thus formed into the
Union.1 This resolve provided, that the territory
which had been or might be ceded to the United
States, after the extinguishment of the Indian title,
and when offered for sale by Congress, should be
divided into separate States, in a manner specified;
that the settlers on such territory, either on their
own petition or on the order of Congress, should
receive authority to form a temporary government; I
and that when there should be twenty thousand free
inhabitants within the limits of any of the States
thus designated, they should receive authority to call
a convention 2f representatives to establish a per-
manent constitution and government for themselves,
provided that both the temporary and permanent
governments should be established on these princi-
ples, as their basis: --‘1. That they should for ever
remain a part of the Confederacy of the United States
of America. 2. That they should be subject to the
Articles of Confederation and the acts and ordinances
of Congress, like the original parties to that instru-
ment. 3. That they should in no case interfere with
the disposal of the soil by Congress. 4. That they
should be subject to pay a part of the federal debts,
present and prospective, in the same measure of ap-
portionment with the other States. 5. That they
should impose no tax upon lands, the property of
the United States. 6. That their respective govern-
ments should be republican. 7. That the lands of
1 April 23, 1784. Journals, IX. 153.
von. 1. 38
298 THE FEDERAL CONSTITUTION. [BOOK In.
non-resident proprietors should not be taxed higher
than those of residents, in any new State, before its
delegates had been admitted to vote in Congress.
The resolve also contained a provision, which ap-
pears to have been designed to meet the want of con-
stitutional power, under the Articles of Confedera-
tion, relative to the admission of new States. It was
declared, that whenever any of the States thus formed
should have as many free inhabitants as the least
numerous of the thirteen original States, it should
be admitted by its delegates into Congress on an
equal footing with the original\ States, provided the
assent of so many States in Congress should be first
obtained, as might at the time be competent to such
admission. It was further declared, that, in order to
adapt the Articles of Confederation to the condition
of Congress when it should be thus increased, it
should be proposed to the original States, parties
to that instrument, to change the rule, which re-
quired a vote of nine States, to a vote of two thirds
of all the States in Congress; and that when this
change had been agreed upon, it should be binding
upon the new States. i
After the establishment of a temporary govern-
ment, and before its admission into the Union, each
of the new States was to have the right to keep a
member in Congress, with the privilege of debating,
but not of voting. It was also provided, that meas-
ures not inconsistent with the principles of the Con;
federation, and necessary for the preservation of peace
and good order among the settlers in any of the said
on. v.; THE CONFEDERATION. 299
new States, until they had assumed a temporary gov-
ernment, might, from time to time, be taken by the
United States in Congress assembled.
These provisions were to stand as a charter of
compact and as fimdamental constitutions between
the thirteen original States and each of the new States
thus described, unalterable from and after the sale
of any part of the territory of such State, but by the
joint consent of the United States in Congress as-
sembled, and of the particular State to be affected?
New and urgent recommendations f llowed the pas-
sage of this resolve, pressing \the/Stjaites to consider
that the war was now happily brought to a close, by
the services of the army, the supplies of property by
citizens, and loans of money by citizens and foreign-
ers, constituting a body of creditors who had a right
to expect indemnification, and that the vacant terri-
tory was an important resource for this great object.2
The subject does not Ogeem to have again occupied
the attention of Congress until the spring of the
following year, when a proposition was introduced
and committed, to exclude slavery and involuntary
servitude, otherwise than in punishment of crimes,
from the States described in the resolve of April 23d,
1784, and to make this provision part of the COD]:-
pact established by that resolves '
Soon afterwards, a cession was made by Massa-
1 April 23, 1784. Journals, IX. 3 This proposition was intro-
153. duced by Rufus King, March 16,
2 April 29, 1784. Journals, 1785, and was committed by the
IX. 184. votes of eight States against four.
300 THE FEDERAL CONSTITUTION. [BOOK In.
chusetts of all its right and title, both of soil and
jurisdiction, to the Western territory lying within
the limits of the charter of that State.1 In the suc-
ceeding month, Congress adopted an ordinance for
ascertaining the mode of disposing of the Western
lands to settlers.2 In the \cqurse of the next year,
the cession by Connectivcut was made, after" various
negotiations, with a reservation to that State of the
property in a considerable tract of country, since
called the Connecticut Reserve, lying to the south of
Lake Erie, and now embraced within the State of
Ohio.3 . - .
Before this transaction had been completed, it had
become manifest, from the knowledge that had been
obtained of the country northwest of the Ohio, that
it would be extremely inconvenient to lay it out into
States of the extent and dimensions described in the
resolve of October 10, 1780, under which the ces-
sion of Virginia had been made; and the legislature
of that State were accordingly asked to modify their
1 April 19, 1785.
9 May 20, 1785.
3 September 14, 1786. Jour—
nals, XI. 221 - 223. The deed of
cession, and the act of Connecticut
recited in it, do not disclose this
reservation. Thqyterritory ceded
is described by certain lines which
include less than the whole claim
of Connecticut. It appears from
the Journals, under the date of
May 22—26, 1786, and from vari-
ous propositions considered between
those dates, that the State of Con-
necticut claimed to own a larger
extent of territory than she pro-
posed to cede ; and by way of com-
promise, her claim was so far ac-
ceded to, that Congress agreed to
accept of a cession of less than the
whole. The reservation embraced
about six millions of acres. See
Sparks’s Washington, IX. 178,
note, where it appears that the
right of the State to this territory
was considered very feeble at the
time. '
on v.] THE CONFEDERATION. 301
act of cession, so as to enable Congress to lay out the
territory into not more than five nor less than three
States, as the situation and circumstances of the
country might require.1 This suggestion was com-
plied with?
A cession by South Carolina then followed, of all
its claim to lands lying towards the river Missis-
sippi ; 3 but no other cessions were made to the
United States under the Confederation; those of
Georgia and North Carolina having been made after
the adoption of the Constitution.4
It appears, therefore, that, with the exception of
the claims of South Carolina to territory lying due
west from that State towards the river Mississippi,
the United States, before the 13th of July, 17 87 ,
had become possessed of the title to no other terri-
tory than that which had been surrendered to them
by the States of New York, Virginia, Massachusetts,
and Connecticut. The great mass of this territory
was that embraced within the cession of Virginia,
and lying to the northwest of the river Ohio; and
after the whole title to this region, with the excep-
tion of some reserved tracts, had become complete in
the United States, it was subject to the resolves of
1780 and of 1784. The provisions of the resolve
of 1784, however, were soon seen to be inconvenient
and inapplicable to the pressing wants of this region.
Immediate legislation was plainly demanded for this
1 July 9, 1786. , 4 That of North Carolina was
9 December 30, 1788. made February 25, 1790, and that
3 August 9, 1787. of Georgia, April 24, 1802.
302 THE FEDERAL CONSTITUTION. [BOOK 111.
territory, which could not wait the slow process of
forming first temporary and then permanent gov-
ernments, as had been contemplated by that resolve.
Congress had had cast upon it the administration of
an empire, exterior to the Confederation, and rapidly
filling with people, in which the rights and tenure
of property, the preservation of order and tranquillity,
and the shaping of its political and social destinies, re-
quired instant legislation. This legislation was there-
fore provided in the celebrated Ordinance for the
Government of the Northwestern Territoiy, enacted
July 13, 1787, which was designed to supersede and
in terms directly repealed the resolve of 1784. As
this fundamental law for a new and unsettled coun-
try -— at that time a novel undertaking —- must al-
ways be regarded with interest in every part of " the
world, and as it lies at the foundation of the civil
polity of a sixth part of these United States, its prin-
ciples and provisions should be carefully examined.
The territory was, for the purposes of temporary
government, constituted one district, subject to be di-
vided into two, as future circumstances might require.
An equal distribution of property among the chil-
dren of persons dying intestate, with a life estate to
the widow in one third of the ‘real and personal
estate, was made the law of the territory, until it
should be altered by its legislature. Persons of full
age were empowered to dispose of ' their estates by a
written will, executed in the presence of three wit-
nesses. Real estates were authorized to be conveyed
by deed, executed by a person of full age, acknowl-
cs. v.1 THE CONFEDERATION. 303
edged and attested by two witnesses. Both wills
and deeds were required to be registered. Personal
property was transferable by delivery.
The civil government of the territory was to con-
sist of executive, legislative, and judicial branches.
A Governor was to be appointed fi'om time to time
by Congress, and to be commissioned for three years,
subject to removal; but he was to reside in the dis-
trict, and to have a freehold estate there in one thbu-
sand acres of land, while in the exercise of his oflice.
A Secretary was also to be appointed from time to
time by Congress, and to be commissioned for four
years, subject to removal, but to reside in the district,
and to have a freehold estate there in five hundred
acres of land, while in the exercise of his office.
There was also to be appointed a court of common
law jurisdiction, to consist of three judges, any two
of whom should form a court; they were to reside
in the district, and to have each a freehold estate
there in five hundred acres of land, while in the ex-
ercise of their office; their commissions to continue
in force during good behavior.
The Governor and Judges, or a majority of them,
were to adopt and publish in the district such laws
of the original States, criminal and civil, as might
be necessary and best suited to the circumstances of
the district, to be in force in the district until the
organization of the General Assembly, unless disap-
proved by Congress, to whom, from time to time,
they should be reported; - but the legislature, when
constituted, were to have authority to alter them as
they should think fit.
304 THE FEDERAL CONSTITUTION. [BOOK III.
Magistrates and other civil Officers were to be ap-
pointed by the Governor, previous to the organiza-
tion of the General Assembly, for the preservation
of peace and good order; After the organization of
the General Assembly, the powers and duties of
magistrates and other civil officers were to be regu-
lated and defined by the legislature, but their ape
pointment was to remain with the Governor.
For the prevention of crimes and injuries, the
laws to be adopted or made were to have force in all
parts of the district, and for the execution of'process,
criminal and civil, the Governor was to make proper
divisions of the territory, and to lay out the portions
where the Indian titles had been extinguished, from
time to time, into counties and townships, subject to
future alteration by the legislature.
As soon as there should be five thousand free male
inhabitants, of full age, in the district, upon giving
proof thereof to the Governor, they were to receive
authority to elect representatives from their counties
or townships, to represent them in the General As-
sembly. For every five hundred male inhabitants,
there was to be one representative; and so on pro-
gressively the right of representation was to increase,
until the number of representatives should amount
to twenty-five, after which their numbers and pro-
portions were to be regulated by the legislature.
The qualifications of a representative were to be pre-
vious citizenship in one of the United States for
three years, and residence in the district, or a resi-
dence of three years in the district, with a fee-simple
on. v.] THE conrnnnnnrron. 305
estate, in either case, of two hundred acres of land
within the district. The qualifications of electors
were to be a fieehold in fifty acres of land in the
district, previous citizenship in one of the United
States, and residence in the district, or the like free-
hold and two years’ residence in the district.
The Ordinance then proceeded to state certain fun-
damental articles of compact between the original
States and the people and States in the territory,
which were to remain unalterable, except by com-
mon consent. The first provided for freedom of re-
ligious opinion and worship. The second provided
for the right to the writ of habeas cmpus ; for trial
by ury; for a proportionate representation in the
legislature; for judicial proceedings according to the
course of the common law; for offences not capital
being bailable; for fines being moderate, and pun-
ishments not cruel nor unusual; for no man’s being
deprived of his liberty or property, but by the judg-
ment of his peers or the law of the land; for full
compensation for property taken or services demanded
for the public; and that no law should ever be made,
or have force in the territory, that should in any
manner whatever interfere with or affect private con-
tracts or engagements, previously formed, bona fide
and without fraud. The third provided for the en-
couragement of religion and education, for schools,
and for good faith towards the rights and property
of the Indian tribes. The fourth provided that the
territory and the States to be formed therein should
for ever remain a part of the Confederacy, subject to
von. 1 39
306 THE FEDERAL CONSTITUTION. [BOOK III
the constitutional authority of Congress; that the
inhabitants should be liable to be taxed proportion.
ately for the public expenses; that the legislature
in the territory should never interfere with the pri-
mary disposal of the soil by Congress, nor with their
regulations for securing the title to purchasers;
that no tax should be imposed on lands, the prop-
erty of the United States; that non-resident pro-
prietors should not be taxed more than residents;
and that the navigable waters leading into the Mis-
sissippi and St. Lawrence, and the carrying-places
between them, should be common highways and for
ever free.
The fifth provided, that there should be formed in
the territory not less than three, nor more than five
States, with certain boundaries; and that whenever
any of the States should contain sixty thousand free
inhabitants, such State should be (and might be be-
fore) admitted by its delegates into Congress, on an
equal footing with the original States in all respects
whatever, and should be at liberty to form a perma-
nent constitution and State government, provided it
should be republican, and in conformity with these
articles of compact.
The sixth provided, that there should be neither
slavery nor involuntary servitude in the territory,
otherwise than in the punishment of crimes; but
that fugitives owing service in other States might
be reclaimed.
American, legislation has never achieved any thing
more admirable, as an internal government, than this
on. v.] THE CONFEDERATION. 307
comprehensive scheme. Its provisions concerning
the distribution of property, the principles of civil
and religious liberty which it laid at the foundation
of the communities since established under its sway,
and the efficient and simple organization by which it
created the first machinery of civil society, are wor-
thy of all the praise that has ever attended it. It
was not a plan devised in the closet, upon theo-
retical principles of abstract fitness. It was a con-
stitution of government drawn by men who under-
stood, from experience, the practical working of the
principles which they undertook to embody. Those
principles were, it is true, to be applied to a state of
society not then formed; but they were taken from
states of society in which they had been tried with
success. The equal division of property; general,
not universal suffrage, but a suffrage guarded by
some degree of interest in society; representative gov-
ernment; the division of the three grand departments
of political power; freedom of religious opinion and
worship; the habeas corpus, trial by ury, and the
course of the common law; the right to be hailed
for offences not capital, and the prohibition of im-
moderate fines and cruel or unusual punishments;
the great principle of compensation for property or
service demanded by the public, and the legislative
inviolability of contracts; the encouragement of
schools and the means of education, —were all taken
from the ancient or recent constitutions of States.
from which the greater part of the inhabitants of the
new territory would necessarily come. A community
308 THE FEDERAL CONSTITUTION. [BOOK In
founded on these principles was predestined to pros-
perity and happiness.
But it was in the provisions of the Ordinance rela-
tive to the admission into the Union of the new States
to be formed upon this territory, that the relation be-
tween the existing government of the United States
and its great dependency was afterwards found to in-
volve serious difficulties. The Union was at that
time a confederacy of thirteen States, originally formed
mainly with reference to the exigencies of the war;
and, although the Articles of Confederation had been
ratified under circumstances which gave to the United
States the authority to acquire this property, they
had vested in Congress no power to enlarge the Con-
federacy by the admission of new States. Yet the
Ordinance undertook to declare that new States
should be admitted into the Congress of the United
States on an equal footing with the existing States
in all respects whatever, without proposing to sub-
mit that question to the original parties to the Con-
federacy. '
It does not appear from contemporary evidence
that this difficulty attracted public attention, at the
time of the passage of the Ordinance. In the year
1787, the Confederation was laboring under far more
pressing and alarming defects than the want of strict
constitutional power to create new States. Pub-
lic attention was consequently more engaged with
the consideration of evils which affected the pros-
perity of the original States themselves, than with
the destiny of the new communities, or the method
on. v.] THE CONFEDERATION. 309
by which they were to be brought into the Union.
It was not immediately perceived, also, that a prop-
erty, capable at no distant day of becoming a vast
mine of wealth to the United States, as a great and
independent revenue, had come under the manage-
ment of a single body of men, constituted originally
without reference to such a trust, and with no de-
clared constitutional provisions for its administration.
When, however, the Constitution was in the process
of formation, the necessity for provisions under which
Congress could dispose of the public lands, and by
which new States could be admitted into the Union,
was at once felt and conceded on all sides.1
Far more serious difliculties, however, attended the
management by the Confederation of the interests of
the Western country ; — difficulties which commenced
immediately after the Peace, and continued to increase,
until the course taken by Congress had nearly lost to
the Union the whole of that immense region which
now pours its commerce down the Mississippi and its
great tributary waters. These difficulties sprang from
the inherent weakness of the federal government, —
from the absolute incapacity of Congress, constituted
as it was, to deal wisely, safely, and efficiently with
the foreign relations of the country and its internal
affairs, under the delicate and critical circumstances
in which it was then placed. After the Treaty
of Peace, the Western settlements, flanked by the
dependencies of Great Britain at the north and of
1 See Mr. Madison’s notes of Elliot, V. 128, 157, 190, 211,376,
the Debates in the Confederation.I 381
310 THE FEDERAL CONSTITUTION. [BOOK 111
Spain at the south, and rapidly filling with a bold,
adventurous, and somewhat lawless population, whose
ties of connection with the Eastern States were al-
most sundered by the remoteness of their position
and the difliculties of communication, stood upon a
pivot, where accident might have thrown them out
of the Union. This population found themselves
seated in a luxuriant and fertile country, capable of a
threefold greater production than the States eastward
of the Alleghany and Appalachian Mountains, and
intersected by natural water communications of the
most ample character, all tending to the great high-
way of the Mississippi. A soil richer than any over
which the Anglo-Saxon race had hitherto spread itself
upon this continent, in any of its temperate climes;
large plains and meadows, capable, without labor, of
supporting millions of cattle; and fields destined to
vie with the most favored lands on the globe in the
production of wheat, were already accumulating upon
the banks of their great rivers a weight of produce
far beyond the necessities of subsistence, and loudly
demanding the means of reaching the markets of the
world. The people of the Atlantic States knew little
of the resources or situation of this country. They
valued it chiefly as a means of paying the public
debts by the sale of its lands; but until they were in
imminent danger of losing it, from the inefficiency
of the national government, they had little idea of
the supreme necessity of seeming for it an outlet to
the sea, if they would preserve it to the Union.
Washington, in the autumn of 17 84, after his re
on. v.] THE CONFEDERATION. 311
tirement to Mount Vernon, made a tour into the
Western country, for the express purpose of ascer-
taining by what means it could be most effectually
bound to the Union. The policy of opening com-
munications eastward, by means of the rivers flowing
through Virginia to the Atlantic Ocean struck him
at once. On his return, he addressed a letter to the
Governor of the State, in which he recommended the
appointment of a commission, to make a survey of
the whole means of natural water communication
between Lake Erie and the tide-waters of Virginia.
He does not seem at this time to have considered the
navigation of the Mississippi as of great importance;
but he thought rather that the opening of that river
would have a tendency to separate the Western from
the Eastern States? A year later, he held a clear opin-
ion, that its navigation ought not at present to be
made an object by the United‘ States, but that their
true policy was to open all the possible avenues be-
1 His recommendation contem-
plated a survey of James River and
the Potomac, from tide-water to
their respective sources ; then to
ascertain the best portage between
those rivers and the streams capa-
ble of improvement which run into
the Ohio; then to traverse and sur-
vey those streams to their junction
with the Ohio; then, passing down
the Ohio to the mouth of the Mus—
kingum, to ascend that river to the
carrying-place to the Cuyahoga ;
then down the Cuyahoga to Lake
Erie, and thence to Detroit. He
also advised a survey of Big Beaver
Creek, and of the Scioto, and of all
the waters east and west of the
Ohio, which invited attention by
their proximity and the ease of
land transportation between them
and the James and Potomac Rivers.
“These things being done,” he
said, “ I shall be mistaken if prej-
udice does not yield to facts, jeal-
ousy to candor, and finally, if rea-
son and nature, thus aided, do not
dictate what is right and proper to
be done.” (Writings of Washing-
ton, IX. 65.) This suggestion
was adopted, and a commission ap-
pointed.
312 THE FEDERAL CONSTITUTION. [BOOK III.
tween the Atlantic States and the Western territory,
and that, until this had been done, the obstructions to
the use of the Mississippi had better not be removed.1
Those obstructions, however, involved the hazard of
a loss of the territory to which the navigation of that
river had already become extremely important. Their
nature is, therefore, now to be explained.
The Treaty of Peace with Great Britain recognized,
as the southern boundary of the United States, a line
drawn from a point where the thirty-first degree of
north latitude intersected the river Mississippi, along
that parallel due east to the middle of the river
Appalachicola; thence along- the middle of that river
to its junction with the Flint River; thence in a
straight line to the head of St. Mary’s River; and
thence down the middle of that river to the Atlantic
Ocean? At the time of the negotiation of this treaty
‘Vest Florida was in the possession of Spain; and
a secret article was executed by the British and
American plenipotentiaries, which stipulated that in
case Great Britain, at the conclusion of a peace with
Spain, should recover or be put in possession of
West Florida, the north boundary between that prov-
ince and the United States should be a line drawn
from the mouth of the river Yassous, where it unites
with the river Mississippi, due east to the river
Appalachicola? The treaty also stipulated, that the
navigation of the Mississippi, from its source to the
1 Writings, IX. 63, 117- 119. 3 Executed November 30, 1782.
August 22, 1785. Secret Journals, III. 338.
_ 2 Article II. Journals, IX. 26.
on. v.1 THE conrsnnnarrou. 313
ocean, should for ever remain free and open to the
subjects of Great Britain and the citizens of the
United States?
When the treaty came to be ratified and published,
in 17 84, the Spanish government was already ac-
quainted with this secret article. .Iustly assuming
that no treaty between Great Britain and the United
States could settle the boundaries between the terri-
tories of the latter power and those of Spain, or give
of itself a right to navigate a river passing wholly
through their dominions, they immediately caused it
to be signified to Congress, that, until the limits of
Louisiana and the two Floridas should be settled and
determined, by an admission on the part of Spain
that they had been rightfully described in the Treaty
with England, they must assert their territorial claims
to the exclusive control of the river; and also, that
the navigation would under no circumstances be con-
ceded, while Spain held the right to its control? To
accommodate these difficulties, Congress resolved to
send Mr. Jay, their Secretary of Foreign Affairs, to
Spain; but his departure was prevented by the ar-
rival in the United States of Don Diego Guardoqui,
as Minister from Spain, charged with the negotia-
tion of a treaty.3
Preparatory to this negotiation, the first instruc-
tion which Mr. Jay received from Congress was, to
1 Article VIII. Journals, IX. 29. 3 Guardoqui arrived and was rec-
2 June 25, 1784. Communicat- ognized July 2, 1785. Secret J our
ed to Congress November 19, 1784. nals, III. 563.
Secret Journals, III. 517, 518.
von. 1. 40
314 THE FEDERAL CONSTITUTION. [BOOK n1 '
insist upon the right of the United States to the ter-
ritorial boundaries and the free navigation of the
Mississippi, as settled by their treaty with Great Brit-
ain.1 Upon this point, however, the Spanish Min-
ister was immovable. A long negotiation ensued,
in which he evinced entire readiness to make a lib-
eral commercial treaty with the United States, con-
ceding to their trade very important advantages;
but at the same time refusing the right to use the
Mississippi. Such a treaty was regarded as extremely
important to the United States. There was scarcely
a single production of this country that could not
be advantageously exchanged in the Spanish Euro-
pean ports for gold and silver. The influence of
Spain in the Mediterranean, with Portugal, with
France, with the States of Barbary, and the trade
with her Canaries and the adj acent islands, rendered
a commercial alliance with her of the utmost impor-
tance. That importance was especially felt by the
Eastern and Middle States, whose influence in Con-
gress thus became opposed to the agitation of the
subject of opening the Mississippi.2 Indeed, the pre-
vailing opinion in Congress, at this time, was for not
insisting on the right of navigation as a necessary
requisite in the treaty with Spain; and there were
some important and influential persons in that body
ready to agree to the abandonment of the right, rath-
er than defer longer a free and liberal system of trade
1 August 25, 1785. SecretJour- by Mr. Jay to Congress, August
nals, III. 585, 586. 3, 1786. Secret Journals, 1V.
9 See the communication made 43.
cu. v.1 THE conEEnEEATroN. 315
with a power able to give conditions so advantageous
to the United States? The Eastern States considered
a commercial treaty with Spain as the best remedy
for their distresses, which flowed, as they believed,
from the decay of their commerce.
dle States joined in this opinion.
Two of the Mid-
Virginia, on the
other hand, opposed all surrender of the right.2
In this posture of affairs, Mr. Jay proposed to
Congress a middle course. Believing, as Washing-
ton continued to believe,3 that the navigation of the
1 Henry Lee, then in Congress,
wrote to Washington on the 3d of
July, 1786, as follows: “Your
reasoning is perfectly conformable
to the prevalent doctrine on that
subject in Congress. We are very
solicitous to form a treaty with
Spain for commercial purposes.
Indeed, no nation in Europe can
give us conditions so advantageous
to our trade as that kingdom. The
carrying business they are like our-
selves in, and this common source
of difficulty in adjusting commer-
cial treaties between other nations
does not apply to America and
Spain. But, my dear General, I
do not think you go far enough.
Rather than defer longer a free and
liberal system of trade with Spain,
why not agree to the exclusion of
the Mississippi’! This exclusion
will not, cannot, exist longer than
the infancy of the Western emi-
grants. Therefore, to these peo-
ple what is now done cannot be
important. To the Atlantic States
it is highly important; for we have
no prospect of bringing to a con-
clusion our negotiations with the
court of Madrid, but by yielding
the navigation of the Mississippi.
Their Minister here is under posi-
tive instructions on that point. In
all other arrangements, the Span-
ish monarch will give to the States
testimonies of his regard and friend-
ship. And I verily believe, that, if
the above difliculty should be re-
moved, we should soon experience
the advantages which would flow
from a connection with Spain.”
(Writings of Washington, IX.
173, note.)
2 Washington’s Writings, IX.
205, 206, note.
3 Washington had not changed
his opinion, at the time of these
negotiations. On the 18th of June,
1786, he wrote to Henry Lee, in
answer to his letter above quoted :
“ The advantages with which the
inland navigation of the rivers
Potomac and James is pregnant,
must strike every mind that rea-
sons upon the subject; but there
is, I perceive, a diversity of senti-
ment respecting the benefits and
316 ~ TIIE FEDERAL CONsTITUTION. [BOOK III.
Mississippi was not at that time very important, and
that it would not become so for twenty-five or thirty
years, he suggested that the treaty should be limited
to that period, and that one of its articles should
stipulate, that the United States would forbear to use
the navigation of the river below their territories to
the ocean. It was supposed that such a forbearance,
carrying no surrender of the right, would, at the ex-
piration of the treaty, leave the whole subject in as
favorable a position as that in which it now stood.
Besides, the only alternative to obtaining such an
article from Spain was to make war with her, and en-
force the opening of the river.
The experiment, at
consequences which may flow from
the free and immediate use of the
Mississippi. My opinion of this
matter has been uniformly the same ;
and no light in which I have been
able to consider the subject is likely
to change it. It is, neither to re-
linquish nor to push our claim to
this navigation, but in the mean
while to open all the communica-
tions which Nature has afforded be-
tween the Atlantic States and the
Western territory, and to encour-
age the use of them to the utmost.
In my judgment, it is matter of very
serious concern to the well-being
of the former to make it the inter—
est of the latter to trade with them;
without which, the ties of consan-
guinity, which are weakening every
day, will soon be no bond, and we
shall be no more, a few years hence,
to the inhabitants of that country,
than the British and Spaniards are
at this day; not so much, indeed,
because commercial connections, it
is well known, lead to Others, and
united are diflicult to be broken.
These must take place with the
Spaniards, if the navigation of the
Mississippi is opened. Clear I am,
that it would be for the interest of
the Western settlers, as low down
the Ohio as the Big Kenhawa, and
back to the Lakes, to bring their
produce through one of the chan-
nels I have named; but the way
must be cleared, and made easy
and obvious to them, or else the
ease with which people glide down
streams will give a different bias to
their thinking and acting. When-
ever the new States become so pop-
ulous and so extended to the west
ward as really to need it, there
will be no power which can de-
prive them of the use of the Mis-
sissippi. Why, then, should we
on. v.] THE CONFEDERATION. 317
least, it was argued, would do no injury, and might
produce much good?
These arguments prevailed, so far as to cause a
change in Mr. J ay’s instructions, by a vote, which
was deemed by him suflicient to confer authority to
obtain such an article as he had suggested, but which
was clearly unconstitutional. Seven States against
five voted to rescind the instructions of August 25,
1785, by which the Secretary had been directed to
insist on the right of navigation, and not to conclude
or sign any treaty until he had communicated it to
Congress?
Mr. Jay accordingly agreed with the
prematurely urge a matter which
is displeasing, and may produce
disagreeable consequences, if it is
our interest to let it sleep’! It
may require some management to
quiet the restless and impetuous
spirits of Kentucky, of whose con-
duct I am more apprehensive in
this business than I am of all the
opposition that will be given by
the Spaniards.” (IX. 172, 173.)
On the 26th of July of the same
year, he again wrote to the same
gentl%an, expressing the same
opinions; and on the 31st of Oc-
tober, he said that these senti-
ments “ are controverted by only
one consideration of weight, and
that is, the operation which the oc-
clusion of the river may have on
the minds of the Western settlers,
who will not consider the subject
in a relative point of view, or on a
comprehensive scale, and may be
influenced by the demagogues of
the country to acts of extravagance
and desperation, under the popular
declamation, that their interests
are sacrificed.” In July, 1787, he
retained the same views as to the
true policy of the different sections
of the country interested in this
question, but admitted that, from
the spirit manifested at the West,
it had become a moot point to de-
termine, when every circumstance
was brought into view, what was
best to be done. (IX. 172, 180,
205,261.)
1 See Mr. Jay’s reasoning, Se-
cret Journals, IV. 53, 54.
2 August 29, 1786. SecretJour-
nals, IV. 109, 110. The States
which voted to rescind these in-
structions were New Hampshire,
Massachusetts, Rhode Island, Con-
necticut, New York, New Jersey,
Pennsylvania, and Maryland; Vir
ginia, North and South Carolina,
and Georgia, voted not to rescind.
Another resolution was carried on
the following day (August 30), by
318 THE FEDERAL CONSTITUTION. [BOOK III.
Spanish Minister on an article which suspended the
use of the Mississippi, without relinquishing the
right asserted by the United States.1
While these proceedings were going on, and be-
fore the vote of seven States in Congress had been
obtained in favor of the present suspension of this
diflicult controversy, an occurrence took place at
Natchez, which aroused the jealousy of the whole
West. A seizure was made there, by the Spanish
authorities, of certain American property, which had
been carried down the river for shipment or sale at
New Orleans? The owner, returning slowly in the
autumn to his home, in the western part of North
Carolina, by a tedious land journey through Ken-
tucky, detailed everywhere the story of his wrongs
and of the loss of his adventure. The news of this
seizure, as it circulated up the valley from below,
encountered the intelligence coming from the east-
ward, that Congress proposed to surrender the pres-
ent use of the Mississippi. Alarm and indignation
fired the whole population of the Western: settle-
ments. They believed themselves to be on thepoint
of being sacrificed to the commercial policy off-‘the
the votes of seven States, instruct-
ing the Secretary to insist on the
territorial limits or boundaries of
the United States, as fixed in the
Treaty with Great Britain, and not
to form any treaty with the Span-
ish Minister, unless those bounda-
ries. were acknowledged and se-
cured. Ibid. 111- 116.
1 This agreement was made be-
tween the 29th of August, the date
of the rescinding resolution, and
the 6th of October, 1786. See Mr.
J ay’s communication to Congress
‘under the latter date, Secret J our-
nals, IV. 297 - 301.
2 This seizure was made on the
6th of June, 1786. Secret Jour-
nals, IV. 325.
on. v.] THE CONFEDERATION. 319
Atlantic States; and, feeling that they stood in the
relation of colonists to the rest of the Union, they
held language not unlike that which the old colo-
nies had held towards England, in the earlier days
of the great controversy.
They surveyed the magnificent region which they
were subduing flom the dominion of Nature; -- the
inexhaustible resources of its soil already yielding an
abundance, which needed only a free avenue to the
ocean to make them rich and prosperous ;-—andthey
felt that the mighty river which swept by them, with
a volume of waters capable of sustaining the navies
of the world, had been destined by Providence as a
natural channel through which the productions of
their imperial valley should be made to swell the
commerce of the globe. But the Spaniard was seated
at the outlet of this noble stream, sullenly refusing
to them all access to the ocean. To him they must
pay tribute. To enrich him, they must till those
luxuriant lands, which gave, by an almost spontane-
ous production, the largest return which American
labgr had yet reaped under the industry of its own
freQ hands. Their proud spirits, unaccustomed to
restraint, and expanding in a liberty unknown in the
older sections of the country, could not brook this
vassalage. Into the comprehensive schemes of states-
men, who sought to unite them with the East by
a great chain of internal improvements, and thus
to blend the interests of the West with the com-
mercial prosperity of the whole country, they were
too impatient, and too intent upon the engrossing
320 THE FEDERAL CONsTITUTION. [BOOK III
object of their own immediate advantage, to be able
to enter.
What, they exclaimed, could have induced the
‘ legislature of the United States, which had been
applauded for their assertion and defence of the
rights and privileges of the country, so soon to en-
deavor to subject a large part of their dominion to a
slavery worse than that to which Great Britain had
presumed to subject any part of hers’! To give up
to the Spaniards the greatest share of the fruits of
their toils,—to surrender to them, on their own terms,
the produce of‘ that large, rich, and fertile country,
and thus to enable them to command the benefits of
every foreign market, -—- was an intolerable thought.
What advantage, too, would it be to the Atlantic
States, when Spain, from the amazing resources of
the Mississippi, could undersell them in every part
of the world! Did they think by this course of
policy to prevent emigration from a barren country,
loaded with taxes and impoverished by debts, to the
most luxurious and fertile soil within the limits of
the Union’! The idea was vain and presumptu-
ous. As well might the fishes of the sea be 3'i‘épre-
vented from gathering on a bank that afforded them
ample nourishment. The best and largest part of the
United States was not thus to be left uncultivated; a _
home for savages and wild beasts. Providence had
destined it for nobler purposes. It was to be the
abode of a great, prosperous, and cultivated people,—
of Americans in feeling, in rights, in spirit, incapable
of becoming the bondmen of Spain, while the rest
CH. v.1 THE CONFEDERATION. 321
of their country remained free. Their own strength
could achieve for them what the national power re-
fused or was unable to obtain. Twenty thousand
effective men, west of the Alleghanies, were ready to
rush to the mouth of the Mississippi, and drive the
Spaniards into the sea. Great Britain stood with
open arms to receive them. If not countenanced and
succored by the federal government, their allegiance
would be thrown off, and the United States would
find too late that they were as ignorant of the great
valley of the Mississippi, as England was of the Atlan-
tic States when the contest for independence began?
1 See the documents laid before
Congress, April 13, 1787. Secret
Journals, IV. 315-328. On the
30th of January, 1787, Mr. J effer-
son thus writes to Mr. Madison,
from Paris: “ If these transactions
give me no uneasiness, I feel very
differently at another piece of intel-
ligence, to wit, the possibility that
the navigation of the Mississippi
may be abandoned to Spain. I
never had any interest westward of
the Alleghany; and I never will
have any. But I have had great
opportunities of knowing the char-
acter of the people who inhabit
that country; and I will venture to
say, that the act which abandons
the navigation of the Mississippi
is an act of separation between the
Eastern and Western country. It
is a relinquishment of five parts
out of eight of the territory of the
United States; an abandonment of
the fairest subject for the payment
of our public debts, and the chaining
VOL. I. 41
those debts on our own necks, in
perpetuam. I have the utmost con-
fidence in the‘ honest intentions of
those who concur in this measure ;
but I lament their want of acquaint-
ance with the character and physi-
cal advantages of the people, who,
right or wrong, will suppose their
interests sacrificed on this occasion
to the contrary interests of that
part of the Confederacy in posses-
sion of present power. If they de-
clare themselves a separate people,
we are incapable of a single effort
to retain them. Our citizens can
never be induced, either as militia
or as soldiers, to go there to cut
the threats of their own brothers
and sons, or rather, to be them-
selves the subjects instead of the
perpetrators of the parricide. Nor
would that country quit the cost
-of being retained against the will
of its inhabitants, could it be done.
But it cannot be done. They are
able already to rescue .the naviga-
322 THE FEDERAL CONSTITUTION.
[Boon III.
Such was the feeling that prevailed in the Western
country, as soon as it became known that a treaty
was actually pending, by which the right to navigate
the Mississippi might be suspended for a quarter of
a century. That it should have been accompanied
by acts of retaliation and outrage against the prop-
erty of Spanish subjects, was naturally to have been
expected. General George Rogers Clarke, pretend-
ing to authority from the State of Virginia, under-
took to enlist men and establish a garrison at Port
St. Vincennes, ostensibly for the protection of the
district of Kentucky, then under the jurisdiction of
Virginia. He made a seizure there of some Spanish
goods for the purpose of clothing, and subsisting his
men, and sent an officer to the Illinois, to advise the
settlers there of the seizures of American property
made at Natchez, and to recommend them to retali-
ate for any outrages the Spaniards might commit in
that country.1
The executive of Virginia disavowed these acts, as
soon as oflicially informed of them; ordered the par-
ties to be brought to punishment; and sent a formal
tion of the Mississippi out of the
hands of Spain, and to add New
Orleans to their own territory.
They will be joined by the inhab-
itants of Louisiana. This will
bring on a war between them and
Spain; and that will produce the
question with us, whether it will-
not be worth our‘ while to become
parties with them in the war, in
order to reunite them with us, and
thus correct our error. And were
I to permit my forebodings to go
one step further, I should predict
that the inhabitants of the United
States would force their rulers to
take the afiirmative of that ques-
tion. I wish I may be mistaken
in all these opinions.” (J eiferson,
II. 87.)
1 Secret Journals, IV. 311 - 313.
on. v.1 THE CONFEDERATION. 323
disclaimer, through their delegates in Congress, to
the Spanish Minister? Guardoqui was not disturbed.
He expected these occurrences, and maintained his
ground, refusing to yield the right of navigating
the river; and having assented to Mr. J ay’s pro-
posal of an article which suspended the use for a pe-
riod of twenty-five years, he was quite ready to go on
and conclude the treaty.
The people of the Western country, however, be-
gan to form committees of correspondence, in order
to unite their counsels and interests? The inhabit-
ants of Kentucky sent a memorial to the General,
Assembly of Virginia, which induced them to in-
, struct their delegates in Congress to oppose any
attempt to surrender the right of the United States
to the free use of the Mississippi, as a dishonorable
departure from the comprehensive and benevolent
feeling that constituted the vital principle of the
Confederation, and as provoking the ust resentment
and reproaches of the Western people, whose essen-
tial rights and interests would be thereby sacrificed.
They also instructed their delegates to urge such
negotiations with Spain as would obtain her consent
to regulations for the mutual and common use of the
river? The members from Virginia, with one excep-
tion, concurred in the policy of these instructions,‘
1 February 28, 1787. gress, April 19, 1787. Madison.
2 Madison. Elliot’s Debates, Elliot’s Debates, V. 103.
V. 97. ‘1 Henry Lee did not approve of
3 These instructions were adopt- this policy. See Washington’s
ed in November, 1786. Pitkin,~II. Works, IX, 205, note,
207. They were laid before Con- I
324 THE FEDERAL CONsTITUTION. [BOOK m.
and at first addressed themselves to some conciliatory
expedient for obviating the effect of the vote of seven
States.
They first represented to Guardoqui that it would
be extremely impolitic, both for the United States
and Spain, to make any treaty which should have
the effect of shutting up the Mississippi. They
stated to him, that such a treaty could not be en-
forced; that it would be the means of peopling the
Western country with increased rapidity, and would
tend to a separation of that country fi~om the rest of
the Union; that Great Britain would be able to turn
the force that would spring up there against Spanish
America; and that the result would be the creation
of a power in the valley of the Mississippi hostile
both to Spain and the United States. These rep-
resentations produced no impression. The Spanish
Minister remained firm in the position which he had
held from the first, that Spain never would concede
the claim of the United States to navigate the river.
He answered, that the result of what had been urged
was, that Congress could make no treaty at all, and
consequently that the trade of the United States
must remain liable to be excluded from the ports of
Spain.1
Foiled in this quarter, the next expedient, for
those who felt the necessity of preventing such a
1 See Madison’s account of two Guardoqui stated that he had had
interviews with Guardoqui, March no conference with Mr. Jay since
‘13 and 19, 1787. Elliot,V. 98, 100. the previous October, and never
At the first of these interviews. expected to confer with him again.
on. v.] THE cournnnnnrrou. 325
treaty as had been contemplated, was to gain time,
by transferring the negotiation to Madrid; and Mr.
Madison introduced a resolution into Congress for
this purpose, which was referred to the Secretary for
Foreign Affairs? In a few days, the Secretary re
ported against the proposal, and nothing remained
for the opponents of the treaty, but to attack directly
the vote of seven States, under which the Secretary
had acted in proceeding to adjust with the Spanish
Minister an article for suspending the right of the
United States to the common use of the river below
their southern boundary.
The Articles of Confederation expressly declared,
that the United States should not enter into any
treaty or alliance, unless nine States in Congress as-
sented to the same? It was very justly contended,
therefore, that, to proceed to negotiate a treaty au
thorized by a vote of only seven States, would expose
the United States to great embarrassment with the
other contracting party, since the vote made it cer-
tain that the treaty could not be constitutionally
ratified; and that the vote itself, having passed in a
case requiring the assent of nine States, was not
valid for the purpose intended by it. This was not
1 April 18, 1787. Madison. . came under consideration, Mr.
Elliot, V. 102. On the next day Gorham of Massachusetts, accord-
(April 19) the instructions of Vir— ing to Mr. Madison, avowed his
ginia were laid before Congress, opinion, that the shutting of the
but a motion to refer them also to Mississippi would be advantageous
the Secretary was lost, Massachu- to the Atlantic States, and wished
setts and New York voting against to see it shut. Ibid. 103.
it, and Connecticut being divided. 9 Article IX.
Ibid. When Mr. Jay’s report
326 THE FEDERAL coNsTITUTIoN. [BOOK III
denied; but the advocates of the treaty, by means of
a parliamentary rule, resisted the introduction of a
resolution to rescind the vote of seven States?
But while this dangerous subject was pending,
the affairs of the country had taken a new turn.
The Convention at Annapolis had been held, in
the autumn of 1786, and the Convention called
to revise the system of the federal government was
to meet in May, 1787. It had become sure and
plain, that a large increase of the powers of the
national government was absolutely essential to the
continuance of the Union and the prosperity of
the States. Every day the situation of the country
was becoming more and more critical. N 0 money
came into the federal treasury; no respect was paid
to the federal authority; and all men saw and ad
mitted that the Confederation was tottering to its
fall. Some prominent persons in the Eastern States
were suspected of leaning towards monarchy; others
openly predicted a partition of the States into two
or more confederacies; and the distrust which had
been created by the project for closing the Missis-
sippi rendered it extremely probable, that the Western
country at least would be severed from the Union.
The advocates of that project recoiled, therefore,
from the dangers which they had unwittingly created.
They saw, that the crisis required that harmony and
confidence should be studiously cherished, now that
the great enterprise of remodelling the government
1 Madison. Elliot, V. 104, 105.
on. v.] THE CONFEDERATION. 327
upon a firmer basis was to be attempted. They saw
that no new powers could be obtained for the Federal
Constitution, if the government then existing were
to burden itself with an act so certain to be the
source of dissension, and so likely to cause a dismem-
berment of the Confederacy, as the closing of the
Mississippi. Like wise and prudent men, therefore,
they availed themselves of the expected and probable
formation of a new government, as a fit occasion for
disposing of this question; and after an effort to
quiet the apprehensions that had been aroused, the
whole matter was postponed, by general consent, to
await the action of the great Convention of May,
1787? After the Constitution had been formed
and adopted, the negotiation was formally referred
to the new federal government which was about to
be organized, in March, 1789, with a declaration of
the opinion of Congress that the free navigation of
the river Mississippi was a clear and essential right
of the United States, and ought to be so considered
and supported?
1 Ibid.
9 September 16, 1788. Secret Journals, IV. 449-454.
CHAPTER VI.
1'783—1'787.
DECAY AND FAILURE OF THE CoNFEDERATIoN.—-PRoeREss 0F OPIN-
ION.—STEPS WHICH LED TO THE CoNvENTIoN OF 1787.--INFI.U-
ENCE AND ExERTIONs 0F HAMILTON.—MEETING OF THE CONVEN-
TION.
THE prominent defects in the Confederation, which
have been described in the previous chapters, and
which were so rapidly developed after the treaty of
17 83, made it manifest, that a mere league between
independent States, with no power of direct legisla-
tion, was not a government for a country like this,
in a time of peace. They showed, that this compact
between the States, without any central arbiter to
declare or power to enforce the duties which it in-
volved, could not long continue. It had, indeed,
answered the great purpose of forming the Union,
by bringing the States into relations with each other,
the continuance of which was essential to liberty;
since nothing could follow the rupture of those rela-
tions but the re'éstablishment of European power, or
the native despotism which too often succeeds to civil
commotion. By creating a corporate body of con-
federate States, and by enabling them to go into the
‘PO
on. v1.1 THE CONFEDERATION. 3g?
money-markets of Europe for the means of carrying
on and concluding the war, the Confederation had
made the idea and the necessity of a Union familiar
to the popular mind. But the purposesfland obj ects;[
of the war were far less complex tand intricat'ejthan
the concerns of peace. It was comparatively easy
to borrow money. _ It was another thing to pay it.
The federal power, under the Confederation, had
little else to do, before the peace, than to admin-
ister the concerns of an army in the field, and to
attend to the foreign relations of the country, as yet
not complicated with questions of commerce. But
the vast duties, capable of being discharged by no
other power, which came rapidly into existence be-
fore the creation of the machinery essential to their
performance, exhibited the Confederation in an alarm-
ing attitude.
It was found to be destitute of the essence of po-
litical sovereignty, — the power to compel the indi-
vidual inhabitants of the country to obey its decrees.
It was a system of legislation for States in their cor-
porate and collective capacities, and not for the indi-
viduals of whom those States were composed. It
could not levy a dollar by way of impost or assess-
ment upon the property of a citizen. It had no
means of annulling the action of a State legislature,
which conflicted with the lawful and constitutional
requirements of Congress. It made treaties, and was
forced to stand still and see them violated by its
own members, for whose benefit they had been made.
It owed an enormous debt, and saw itself, year by
van. 1. 42
330 THE FEDERAL coNsTITUTIoN. [BOOK 111.
year, growing more and more unable to liquidate
even the annually increasing interest. It stood in
the relation of a protector to the principles of repub-
lican liberty on which the institutions of the States
were founded, and on the first occurrence of dan-
ger, it stretched forward only a palsied arm, to
which no man could look for succor. It under-
took to rescue commerce from the blighting effects
of foreign policy, and failed to achieve a single
conspicuous and important advantage. Every day
it lost something of respect abroad and of confi-
dence at home, until all men saw, with Washing-
ton, that it had become a great shadow without
the substance of a government; while few could
even conjecture what was to rise up and sup-
plant it.
Few men could see, amidst the decay of empire
and the absolute negation of all the vital and essen-
tial functions of government, what was to infuse new
life into a system so nearly effete. Yet the elements‘
of strength existed in the character of the people;
in the assimilation, which might be produced, in the
lapse of years, by a common language, a common
origin, and a common destiny; —in the almost bound-
less resources of the country;—and, above all, in the
principles of its ancient local institutions, that were
capable, to an extent not then conceived, of expan-
sion and application to objects of far greater magni-
tude than any which they had yet embraced. Through
what progress of opinion the people of this country
were enabled to grasp and combine these elements
0H. v1.1 THE CONFEDERATION. 331
into a new system, which could satisfy their wants,
we must now inquire.
In this inquiry, the student of political history /
should never fail to observe, that the great difliculty of the case, which made it so complex and embar-l
rassing, arose from the separate, sovereign, and inde- ,1
pendent existence of the States. The formation of i
new constitutions, in countries not thus divided, in-
volves only the adaptation of new institutions and
forms to the genius, the laws, and the habits of the
people. , The monarchy of France has, in our day,
been first remodelled, and afterwards swept from the
face of Europe, to be followed by a republican consti-
tution, which has in its turn been crushed and super-
seded. But France is a country that has long been
subjected to as complete and powerful a system of
centralization as has existed anywhere since the
most energetic period of the Roman empire; and
whether its institutions of government have or have
not needed to be changed, as they have been from
time to time, those changes have been made in a
country in which an entire political unity has greatly
facilitated the operation.
In the United States, on the contrary, a federal
government was to be created; and it was to be
created for thirteen distinct communities; -- a gov-
ernment that should not destroy the political sover-
eignties of the States, and should yet introduce a new
sovereignty, formed by means of powers, whose sur-
render by the States, instead of weakening their pres-
ent strength, would rather develop and increase it
332 THE FEDERAL CONsTITUTION. [BOOK III
This peculiar difliculty may be constantly traced,
amidst all the embarrassments of the period in which
the fundamental idea of the Constitution was at
length evolved.
The progress of opinion and feeling in this coun-
try, on the subject of its government, from the peace
of 1783 to the year 1787, may properly be intro-
duced by a brief statement of the political tendencies
of two principal classes of men. All contemporary
evidence assures us that this was a period of great
pecuniary distress, arising from the depreciation of
the vast quantities of paper money issued by the Fed-
eral and State governments; from rash speculations ;
from the uncertain and fluctuating condition of trade;
and from the great amount of foreign goods forced
into the country as soon as its ports were opened.
Naturally, in such a state of things, the debtors were
disposed to lean in favor of those systems of govern-
ment and legislation which would tend to relieve or
postpone the payment of their debts; and as such
relief could come only from their State governments,
they were naturally the friends of State rights and
State authority, and were consequently not friendly
to any enlargement of the powers of the Federal
Constitution. The same causes which led individu-
als to look to legislation for irregular relief from the
burden of their private contracts, led them also to
regard public obligations with similar impatience.
Opposed to this numerous class of persons were all
those who felt the high necessity of preserving invio-
late every public and private obligation; who saw
on. V1] THE CONFEDERATION. 333
_\
that the separate power of the States could not ac-
complish what was absolutely necessary to sustain
both public and private credit; and they were as
naturally disposed to look to the resources of the
Union for these benefits, as the other class were to
look in an opposite direction. These tendencies pro-
duced, in nearly every State, a struggle, not as be-
tween two organized parties, but one that was all
along a contest for supremacy between opposite opin-
ions, in which it was at one time doubtful to which
side the scale would turn?
1 “ The war, as you have very
justly observed,” General Wash-
ington wrote to James Warren of
Massachusetts, in October, 1785,
“ has terminated most advanta-
geously for America, and a fair
field is presented to our view ; but
I confess to you, my dear Sir, that
I do not think we possess wisdom
or justice enough to cultivate it
properly. Illiberality, jealousy,
and local policy mix too much in
all our public counsels for the good
government of the Union. In a
word, the Confederation appears to
me to be little more than a shadow
without the substance, and Con-
gress a nugatory body, their ordi-
nances being little attended to.
To me it is a solecism in politics;
indeed, it is one of the most ex-
traordinary things in nature, that
we should confederate as a nation,
and yet be afraid to give the rulers
of that nation (who are the crea-
tures of our own making, appoint-
, ed for a limited and short duration,
‘war
I‘ ‘A
a,
and who are amenable for every
action and may be recalled at any
moment, and are subject to all the
evils which they may be instru-
mental in producing) sufiicient
powers to order and direct the af-
fairs of the same. By such policy
as this, the wheels of government
are clogged, and our brightest pros-
pects, and that high expectation
which was entertained of us by the
wondering world, are turned into
astonishment; and, from the high
ground on which we stood, we are
descending into the vale of confu-
sion and darkness.
“ That we have it in our power
to become one of the most respect-
able nations upon earth, admits, in
my humble opinion, of no doubt,
if we would but pursue a wise,
just, and liberal policy towards one
another, and keep good faith with
the rest of the world. That our
resources are ample and increas-
ing, none can deny; but while
they are grudgingly applied, or
/
/---.-
334 THE FEDERAL ooNsTITuTIoN. [BOOK III
The three most important centres of opinion in
the Union, before the formation of the Constitution,
were Massachusetts, Virginia, and New York? The
public proceedings of each of them, in the order of
time, on the subject of enlarging the federal powers,
are, therefore, important to a just understanding of
the course of events which ended in the calling of
the Convention.
The legislature of Massachusetts was assembled in
the summer of 1785. The proposal of Congress,
made to the States in 1784, to grant the power of
regulating trade, had been responded to by only four
of the States, and the negotiations in Europe were
failing from the want of it. Great uneasiness and
distress pervaded all the commercial classes, and ex-
tended to every other class capable of being affected
by a state of things in which a large balance, occa-
sioned by the extravagant importation and use of
not applied at all, we give a vital
stab to public faith, and shall sink,
in the eyes of Europe, into con-
tempt.
“ It has long been a speculative
question among philosophers and
wise men, whether foreign com~
merce is of real advantage to any
country; that is, whether the lux-
ury, efi'eminacy, and corruptions
which are introduced along with it
are counterbalanced by the conven-
ience and wealth which it brings.
But the decision of this question is
of very little importance to us. We
have abundant reason to be con-
vinced that the spirit of trade which
pervades these States is not to be
repressed. It behooves us, then,
to establish just principles; and
this cannot, any more than other
matters of national concern, be
done by thirteen heads differently
constructed and organized. The
necessity, therefore, of a control-
ling power, is obvious; and why it
should be withheld is beyond my
comprehension.” Writings, IX.
139 - 141.
1 They are named in this order,
because it represents the order in
which they respectively acted upon
the enlargement of the federal
powers. 1
cs. v1.1 THE CONFEDERATION. 335
foreign manufactures, was thrown against the coun-
try. The money of the State was rapidly drawn off
to meet this balance, which its other exhausted
means of remittance could not satisfy. It was im-
possible for the State to recover its former prosperity,
while Great Britain and other nations continued the
commercial systems which they had adopted. It had
become plain to the comprehension of all intelligent
persons concerned in trade, that nothing could break
up those systems so long as the United States were
destitute of the same power to regulate their foreign
trade, by admitting or excluding foreign vessels and
cargoes according to their interests; and it needed
only the popular expression of this palpable truth,
enforced by a clear and decided executive message,
to induce the legislature to act upon it?
1 One of the necessary and im-
mediate efi'ects of the Revolution
of course was, the loss/of the exclu-
sive commercial advantages which
this country had enjoyed with
Great Britain and her dependen-
cies; and the prohibitory acts and
impositions, which fell with their
full weight on the American trade,
after the peace, were particularly
disastrous to the trade of Massa-
chusetts. The whale fishery, a
business of great importance, had
brought into the Province, before
the war, 172,000 guineas per an-
num, giving employment to Amer--
ican seamen, and not requiring the
use of any foreign materials, ex-
cept a small quantity of cordage.
A duty was now laid on whale oil
Governor
in England of £18 per tun. In
addition to the loss thus sustained,
the exportation of lumber and pro-
visions in American bottoms to the
West Indies was entirely prohib-
ited. Another great inconvenience,
which came in fact to be intolera-
ble, was the vast influx of British
goods, consigned to English fac-
tors for sale, depriving the native
merchants, manufacturers, and ar-
tisans of the market. At the same
time, the revenue of the State, de-
rived from impost and excise du-
ties and a tax on auctions of one
per cent., fell short of the annual
interest on the private debt of the
State, 30,000 pounds (currency)
per annum, and a tax of 20,000
pounds (currency) was computed
336 THE FEDERAL CONsTITUTION. [BOOK III.
Bowdoin gave the necessary impulse, and suggested
the appointment of special delegates from the States
to settle and define the powers wlh which Congress
ought to be invested.1 I I I
This message caused the adoption of the first reso-
lution, passed by the legislature of any State, declar-
ing the Articles of Confederation to be inadequate
to the great purposes which they were originally
designed to effect, and recommending a convention
of delegates from all the States, for the purpose of
revising them, and reporting to Congress how far it
might be necessary to alter or enlarge the powers of
to be necessary to cancel the debt,
principal and interest, in fifteen
years, and pay the ordinary charges
of the government. Besides this,
the State’s proportion of the fed-
eral debt was to be provided for.
It was in this state of things that
two remarkable popular meetings
were held in Boston, in the spring
of 1785, to act upon the subject of
trade and navigation, and to call the
attention of Congress to the neces-
sity for a national regulation ofcom-
merce. The first was a meeting of
the merchants and tradesmen, con-
vened at Faneuil Hall on the 18th of
April. They appointed a commit-
tee to draft a petition to Congress,
representing the embarrassments
under which the trade was labor-
ing, and took measures to cause
the legislature to call the attention '
of the delegation in Congress to
the importance of immediate ac-
tion upon the subject. They also
established a committee of corre-
spondence with the merchants in the
other seaports of the United States,
to induce a similar action; and
they entered into a pledge not to
purchase any goodsdof the British
merchants and factors residing in
Boston, who had made very heavy
importations, which tended to drain
the specie of the State. The other
meeting was an assembly of the
artisans and mechanics, held at the
Green Dragon Tavern, on the 28th
of April, at which similar resolu-
tions were adopted. It is quite
apparent, from these proceedings,
that all branches of industry were
threatened with ruin; and in the
efforts to counteract the effects of
the great influx of foreign com-
modities, we trace the first move- -
ments of a popular nature to-
wards a national control over com-
merce.
1 Governor Bowdoin’s first Mes-
sage to the Legislature, May 31
1785.
on. v1.1 THE CONFEDERATION. 337
the Federal Union, in order to secure and perpetui
ate its primary objects. Congress was requested by
these resolves to recommend such a convention. A
letter, urging the importance of the subject, was
addressed by the Governor of Massachusetts to the
President of Congress, and another to the executive
of each of the other States. The resolves were also
inclosed to the delegates of the State in Congress,
with instructions to lay them before that body at the
earliest opportunity, and to make every exertion to
carry them into efl'ect.1
They were, however, never presented to Congress.
That body was wholly unprepared for such a step,
and the delegation of Massachusetts were entirely op-
posed to it, as premature. It had been all along the
policy of Congress to obtain only a grant of tempora-
ry power over commerce, and to this policy they were
committed by their proposition, now pending With the
legislatures of the States, and by the instructions of
the commissioners whom they had sent to Europe to
negotiate commercial treaties. The prevalent idea in
Congress was, that at the expiration of fifteen years,
- the period for which they had asked the States to
grant them power over commerce, —- a new commer-
cial epoch would commence, when the States would
» have a more clear and comprehensive view of their
interests,‘ and of the best means for promoting them,
whether by treaties abroad, or by the delegation and
exercise of greater power at home. It was argued,
1 July 1, 1785.
von. 1. 43
338 THE FEDERAL ooNsTITUTIoN. [BOOK III.
also, that the most safe and practicable course was,
to grant temporary power in the first ‘instance, and
to leave the question of its permanent adoption as
a part of the Confederation to depend on its bene-
ficial effects. Another objection, which afterwards
caused serious difficulty, , was, that the Articles of
Confederation contained no provision for their amend-
ment by a convention, but that changes should origi-
nate in Congress and be confirmed by the State legis-
latures, and that, if the report of a convention should
not be adopted by Congress, great mischiefs would
i follow.
But a deep-seated jealousy in Congress of the radi-
cal changes likely to be made in the system of gov-
ernment lay at the foundation of these objections.
There was an apprehension that the Convention
might. be composed of persons favorable to an aris-
tocratic system; or that, even if the members were
altogether republican in their views, there would be
great danger of a report which would propose an
entire remodelling of the government. The delega-
tion from Massachusetts, influenced by these fears,
retained the resolutions of the State for two months,
and then replied to the Governor’s letter, assigning
these as their reasons for not complying with the
directions given to them? The legislature of Mas
1 The delegation at that time ing and altering the Confedera
consisted of Elbridge Gerry, Sam- tion” may be found in the Life
uel Holten, and Rufus King. of Hamilton, II. 353. See also
Their“ Reasons assigned for sus- Boston Magazine for 1785, p.
pending the delivery to Congress 475.
of the Governor’s letter for revis-
ca. v1.1 THE CONFEDERATION.
339
sachusetts thereupon annulled their resolutions rec-
ommending a Convention?
It is manifest from this occurrence, that Congress
in 1785 were no more in a condition to take the lead
and conduct the country to a revision of the Fed-
eral Constitution, than they were in 1783, when
Hamilton wished to have a declaration made of its
defects, and found it impracticable. There were sel-
dom present more than five-and-twenty members;
and, at the time when Massachusetts proposed to call
upon them to act upon this momentous subject, the
whole assembly embraced as little eminent talent as
had ever appeared in it. They were not well placed
to observe that something more than “ the declama-
tion of designing men ” was at work, loosening the
foundations of the system which they were admin-
istering? They saw some of its present inconven-
iences; but they did not see how rapidly it was los-
1 November 25, 1785.
9 Letter of Messrs. Gerry, Hol-
ten, and King, delegates in Con-
gress, to the Governor of Massa-
chusetts, assigning reasons for sus-
pending the delivery of his letter
to Congress, dated September 3,
1785. Life of Hamilton, II. 353,
357. “ We are apprehensive,”
said they, “ and it is our duty to
declare it, that such a measure
would produce throughout the
Union an exertion of the friends
of an aristocracy to send members
who would promote a change of
government; and we can form
some judgment of the plan which
such members would report to
Congress. But should the mem-
bers be altogether republican, such
have been the declamations of de-
signing men against the Confeder-
ation generally, against the rota-
tion of members, which, perhaps,
is the best check to corruption, and
against the mode of altering the
Confederation by the unanimous
consent of the legislatures, which
effectually prevents innovations in
the articles by intrigue or surprise,
that we think there is great dan-
ger of a report ‘which would invest
Congress with powers that the
honorable legislature have not the
most distant intention to dele
gate.”
340 THE FEDERAL CONsTITUTION. [BOOK III.
ing the confidence of the country, of which the fol-
lowing year was destined to deprive it altogether.
Before the year 1785 had closed, however, Vir-
ginia was preparing to give the weight of her influ-
ence to the advancing cause of reform.
A proposition was introduced into the House of
Delegates of Virginia, to instruct the delegates of the
State in Congress to move a recommendation to all
the States to authorize Congress to collect a revenue
by means of duties uniform throughout the United
States, for a period of thirteen years.1 The absolute
necessity for such a system was generally admitted;
but, as in Massachusetts, the opinions of the members
were divided between a permanent grant of power
and a grant for a limited term. The advocates of the
limitation, arguing that the utility of the measure
Ought to be tested by experiment, contended, that a
temporary grant of commercial powers might be and
would be renewed from time to time, if experience
should prove its eflicacy. They forgot that the other
powers granted to the Union, on which its whole fabric
rested, were perpetual and irrevocable; and that the
first sacrifices of sovereignty made by the States had
been the result of circumstances which imperatively
demanded the surrender, just as the situation of the
' country now demanded a similar surrender of an
irrevocable power over commerce. The proposal to
make this grant temporary only, was a proposal to
engraft an anomaly upon the other powers of the
1 November 30th, 1785.
CH. v1.1 THE CONFEDERATION. 341
Confederacy, with very little prospect of its future
renewal; for the caprice, the ealousy, and the diver-
sity of interests of the different States, were obstacles
which the scheme of a temporary grant could only
evade for the present, leaving them still in existence
when the period of the grant should expire. But
the arguments in favor of this scheme prevailed,
and the friends of the more enlarged and liberal sys-
tem, believing that a temporary measure would stand
afterwards in the way of a permanent one, and would
confirm the policy of other countries founded on the
jealousies of the States, Were glad to allow the sub-
ject to subside, until a new event opened the pros-
pect for a more efficient plan.1
The citizens of Virginia and Maryland, directly in
terested in the navigation of the rivers Potomac and
Pocomoke, and of the Bay of Chesapeake, had long
been embarrassed by the conflicting rights and regu-
lations of their respective States; and, in the spring
of 17 85, an effort at accommodation was made, by the
appointment of commissioners on the “part of each
State to form a compact between them for the regu-
lation of the trade upon those waters. These com-
missioners assembled at Alexandria in March, and
while there made a visit at Mount Vernon, where a
further scheme was concerted for the establishment of
harmonious commercial regulations between the two
1 The resolution introduced on table. Elliot’s Debates, l. 114,
the 30th of November was agreed 115. Letter of Mr. Madison to
to in the Delegates, but before it General Washington, of December
was carried up to the Senate, it 9, 1785, Washington’s Works,
was reconsidered and laid upon the IX. 508.
342 THE FEDERAL coNsTITuTIoN. [BOOK III.
States? This plan contemplated the appointment of
other commissioners, having power to make arrange-
ments, with the assent of Congress, for maintaining
a naval force in the Chesapeake, and also for establish-
ing a tariff of duties on imports, to be enacted by the
legislatures of both the States. A report, embracing
this recommendation, was accordingly made by the
Alexandria commissioners to their respective govern-
ments. In the legislature of Virginia this report
was received while the proposition for granting tem-
porary commercial powers to Congress was under
consideration; and it was immediately followed by a
resolution directing that part of the plan which re-
spected duties on imports to be communicated to
all the States, with an invitation to send deputies to
the meeting.
In a few days afterwards, the cele-
1 What direct agency General
\Vashington had in suggesting or
promoting this scheme, does not
appear ; although it seems to have
originated, or to have been agreed
upon, at his house. His published
correspondence contains no mention
of the visit of the commissioners;
but Chief Justice Marshall states
that such a visit was made, and in
this statement he is followed by
Mr. Sparks. (Marshall, V. 90;
Sparks, I. 428.) Mr. Madison,
writing to General Washington
in December, 1785, refers to “the
proposed appointment of commis-
sioners for Virginia and Maryland,
concerted at Mount Vernon, for keep-
ing up harmony in the commer-
cial regulations of the two States,”
and says that the meeting of com-
missioners from all the States,
which had then been proposed,
“ seems naturally to grow out of
it.” (Washington’s Writings, IX.
509.)
That Washington foresaw that
the plan agreed upon at his house
in March would lead to a general
assembly of representatives of all
the States, seems altogether prob-
able, from the opinions which he
entertained and expressed to his
correspondents, during that sum-
mer, upon the subject of conferring
adequate commercial powers upon
Congress. (See his Letters to
Mr. McHenry and Mr. Madison
of August 22d and November 30th.
Writings, IX. 121, 145.)
ca. v1.1 THE CONFEDERATION. 343
brated resolution of Virginia, which led the way to
the Convention at Annapolis, was adopted by the
legislature, directing the appointment of commission-
ers to meet 'with the deputies of all the other States
who might be appointed for the same purpose, to
consider the whole subject of the commerce of the
United States? The circular letter which transmit
ted this resolution to the several States proposed that
Annapolis in the State‘ of Maryland should be the
place, and that the following September should be
the time of meeting.
The fate of this measure now turned principally
upon the action of the State of New York. The
power of levying a national impost, proposed in the
revenue system of 17 83, had been steadily withheld
from Congress by the legislature of that State. Ever
since the peace, the State had been divided between
two parties, the friends of adequate powers in Con-
1 This resolution, passed Janu-
ary 21, 1786, was in these words :
“ Resolved. That Edmund Ran-
dolph, James Madison, Jr., Wal-
ter Jones, St. George Tucker,
Meriweather Smith, David Ross,
William Ronald, and George Ma-
son, Esquires, be appointed com-
missioners, who, or any five of
whom, shall meet such commis-
sioners as may be appointed by the
other States in the Union, at a
time and place to be agreed on, to
take into consideration the trade
of the United States; to examine
the relative situation and trade of
the said States; to consider how
far a uniform system in their com
mercial regulations may be neces~
sary to their common interest and
their permanent harmony; and to
report to the several States such
an act relative to this great object,
as, when unanimously ratified by
them, will enable the United States
in Congress assembled effectually
to provide for the same; that the
said commissioners shall immedi-
ately transmit to the several States
copies of the preceding resolution,
with a circular letter respecting
their concurrence therein, and pro-
posing a time and place for the
meeting aforesaid.”
34A TIIE FEDERAL CONsTITUTION. [BOOK III.
gress, and the adherents of State sovereignty; and
the belief that the commercial advantage of the State
depended upon retaining the power to collect their
own revenues, had all along given to the latter an
ascendency in the legislature. In 1784, they estab-
lished a custom-house and a revenue system of their
own. In 1785, a proposition to grant the required
powers to Congress was lost in the Senate; and in
17 86, it became necessary for Congress to bring this
question to a final issue. Three other States, as we
have seen, stood in the same category with New
York, having decided in favor of no part of the plan
which Congress had so long and so repeatedly urged
upon their adoption.1 Declaring, therefore, that the
crisis had arrived when the people of the United
States, by whose will and for whose benefit the fed-
eral government was instituted, must decide whether
they would support their work as a nation, by main-
taining the public faith at home and abroad, or
whether, for want of a timely exertion in establish-
ing a general revenue system, and thereby giving
strength to the Confederacy, they would hazard the
existence of the Union and the privileges for which
they had contended, —- Congress left the responsi-
bility of the decision with the legislatures of the
States?
1 Rhode Island, Maryland, and
Georgia.
2 “The committee,” said the
Report, “ have thought it their
duty candidly to examine the prin-
ciples of this system, and to dis—
cover, if possible, the’reasons which
have prevented its adoption; they
cannot learn that any member of
the Confederacy has stated or
brought forward any objections
against it, and the result of their
C11. v1.1 THE CONFEDERATION. 345
It was now that the influence of Hamilton upon
the destinies of this country began to be favored by
the events which had brought its affairs to the pres-
ent juncture. To his sagacious and watchful fore-
cast, the proposal of a commercial convention, ema-
nating from Virginia, presented the opportunity which
he had long desired, to effect an entire change in the
system of the federal government; while, at the same
time, the final appeal made by Congress for the estab-
lishment of the revenue system gave him an occasion
to bring the State of New York into the movement
whichétilad been originated by Virginial He deter-
mined‘ at this system should be again presented to
the legislature, for distinct approval or rejection, and
that, if it should be rejected, the State should still
impartial inquiries into the nature
and operation of the plan has been
a clear and decided opinion, that
the system itself is more free from
well-founded exceptions, and is
better calculated to receive the ap-
probation of the several States,
than any other that the wisdom
of Congress can devise. In the
course of this inquiry, it most
clearly appeared that the requisi-
tions of Congress for eight years
past have been so irregular in their
operation, so uncertain in their col-
lection, and so evidently unproduc-
tive, that a reliance on them in fu-
ture, as a source from whence
moneys are to be drawn to dis-
charge the engagements of the
Confederacy, definite as they are
in time and amount, would be not
VOL. 1. 44
less dishonorable to the under-
standings of those who entertain
such confidence, than it would
be dangerous to the welfare and
peace of the Union. The com-
mittee are therefore seriously im-
pressed with the indispensable ob-
ligation that Congress are under
of representing to the immediate
and impartial consideration of the
several States, the utter impossi-
bility of maintaining and preserv~
ing the faith of the federal govern-
ment by temporary requisitions on
the States, and the consequent ne-
cessity of an early and complete
accession of all the States to the
revenue system of the 18th of
April, 1783.” (Journals of Con-
gress, XI. 35, 36 Februarv 15,
1786.)
346 THE FEDERAL coNsTITuTIoN. [BOOK III.
send a representation to the Convention at Annapolis.
He therefore caused the revenue system, as proposed
by Congress, to be again brought before the legisla-
ture, where it was again rejected; and he and his
friends then threw their whole influence in favor of
the appointment of commissioners to attend the com-
mercial convention, and succeeded, — Hamilton him-
self being appointed one of them?
This great step having been taken, the course of
the State of New York upon the revenue system of
1783, which brought her at length to an open con-
troversy with Congress, tended strongly to aid the
plans of Hamilton, and finally gave him the ascen-
dency in the State itself. The legislature, in May,
1786, passed an act for granting imposts and duties
to the United States, and soon afterwards adjourned.
It was immediately pronounced by Congress not to
be a compliance with their recommendation, and the
Governor was earnestly requested to reassemble the
legislature. This he declined to do, upon the ground
of a want of constitutional power. Congress again
urged the summoning of the legislature, for the pur-
pose of granting the system of impost in such a man-
ner as to enable them to carry it into effect, and the
Governor again refused? ’
1 Life of Hamilton, II. 374, 375. removable by Congress, they made
2 The legislature of New York
were willing to grant the duties to
Congress, but insisted upon reserv-
ing the power of levying and col-
lecting them; and, instead of mak-
ing the collectors amenable to and
them removable by the State, on
conviction for default or neglect of
duty in the State courts. This
was a material departure from the
plan recommended by Congress,
and was entirely inconsistent with
ca. v1.1 THE CONFEDERATION. 347
Arrived at Annapolis, Hamilton found there the
representatives of five States only? He had come
with the determination that the Convention should
lay before the country the whole subject of the con-
dition of the States and the want of an efficient fed-
eral government. But the avowed purpose of the
meeting was solely to consider the means of estab-
lishing a uniform system of commercial regulations,
and not to reform the existing government of the
Union. New/ Jersey alone, of the five States repre-
sented, had empowered her commissioners to con-
sider of “ other important matters,” in addition to
the subject of commercial regulations. Four other
States had appointed commissioners, none of whom
had attended; and the four remaining States had
made no appointments at all?
Under those circumstances, it was certainly a mat-
the grants already made by sev-
eral of the States. See the Report
and proceedings in Congress on
the New York Act, July 27 -Au-
gust 23, 1786. Journals, XI. 153,
184, 197, 200.
1 New York was represented by
Alexander Hamilton and Egbert
Benson ; New Jersey by Abraham
Clark, William C. Houston, and
James Schureman; Pennsylvania
by Tench Coxe; Delaware by
George Read, John Dickinson, and
Richard Bassett; Virginia by Ed-
mund Randolph (Governor), James
Madison, Jr., and St. George
Tucker.
9 General Knox, writing to Gen-
eral Washington under date of
January 14, 1787, says: “You
ask what prevented the Eastern
States from attending the Septem-
ber meeting at Annapolis. It is
difficult to give a precise answer
to this question. Perhaps torpid-
ity in New Hampshire; faction
and heats about their paper money
in Rhode Island; and jealousy in
Connecticut. Massachusetts had
chosen delegates to attend, who
did not decline until very late, and
the finding of other persons to sup-
ply their places was attended with
delay, so that the convention had
broken up by the time the new-
chosen delegates had reached Phil-
adelphia.” Writings of VVashing- ,
ton, IX. 513.
l
5
\
l
348 THE FEDERAL CONsTITUTION. [BOOK III.
ter of great delicacy for the commissioners of five
States only to pass upon the general situation of the
Union, and to pronounce its existing government de-
fective and insufficient. Hamilton, however, felt that
this opportunity, once lost, might never occur again ;
and although willing to waive his original purpose
of a full exposition of the defects of the Confedera-
tion, he did not deem it expedient that the Conven-
tion should adjourn without proposing to the coun-
try some measure that would lead to the necessary
reforms. He modified his Original plan, therefore,
and laid before his colleagues a report, which for-
mally proposed to the several States the assembling
of a general convention, to take into consideration
the situation of the United States.
-In this document, it was declared that the regu-
lation of trade, which had been made the object
of the meeting at Annapolis, could not be effected
alone, for the power of regulating commerce would
enter so far into the general system of the federal
government, that it would require a corresponding
adjustment of the other parts of the system. That
the system of the general government was“ seriously
defective; that those defects were likely to be found
greater on a close inspection; that they were the
cause of the embarrassments which marked the state
of public affairs, foreign and domestic; and that
some mode by which they could be peaceably sup-
plied was imperatively demanded by the public ne-
cessities, — were propositions which the country was
then prepared to receive. A convention of deputies
on. v1.1 THE CONFEDERATION. 349
from the different States, for the special and sole pur-
pose of investigating the defects of the national gov-
ernment, seemed to be the course entitled to prefer-
ence over all others.1
It was indeed the only method by which the ob-
ject of the great statesman who drafted this report
could have been reached. The Articles of Confeder-
ation had provided, that they should be inviolably
observed by every State; that the Union should be
perpetual; and that no alteration should be made in
any of the Articles, unless agreed to in a Congress
of the United States, and confirmed by the legisla-
ture of every State.2 To have left the whole subject
to the action of Congress would have insured, at most,
only a change in some of the features of the existing
government, instead of the great reform which Ham-
ilton believed to be essential, ——-the substitution of a
totally different system. At the same time, the co-
operation and assent of Congress were necessary to
the success of the plan of a convention, in order that
it might not seem to be a violent departure from the
provisions of the Articles of Confederation, and also
for the sake of their influence with the States. The
proposal of the report was therefore cautious. It
did not suggest the summoning of a convention to
frame a new constitution of government, but “ to de-
vise such further provisions as might appear to be
necessary to render the constitution of the federal
1 Report of the Annapolis Convention, Elliot‘s Debates, I. 116;
Hamilton‘s Works, II. 336.
9 Article XIII.
I“
350 THE FEDERAL coNsTITUTIoN. [BOOK III.
government adequate to the exigencies of the Union.’9
It proposed also, that whatever reform should be
agreed on by the convention should be reported to
Congress, and, when agreed to by them, should be
confirmed by the legislatures of all the States. In
this manner, the proposal avoided any seeming vio-
lence to the Articles of Confederation, and suggested
the convention as a. body to prepare for the use of
Congress a plan to be adopted by them for submis-
sion to the States?
At the same time, Hamilton undoubtedly contem-
plated more than any amendment of the existing
constitution. In 1780,11e had analyzed the defects
of the general government, sketched the outline of a
Federal Constitution, and suggested the calling of a
convention to frame such a system? The idea of
such a convention was undoubtedly entertained, by
many persons, before the meeting at Annapolis. It
had been recommended by the legislature of New
York in 1782, and by that of Massachusetts in 1785.
But Hamilton had foreseen its necessity in 17 80,
more than seven years before the meeting at Annapo-
lis; and, although he may not have been the author
of the first public proposal of such a measure, his
private correspondence contains the first suggestion
of it, and proves that he had conceived the main fea-
tures of the Constitution of the United States, even
before the Confederation itself was established.8
1 Report, ut supra. 3 Ibid. The first public pro
2 See his letter to James Duane, posal of a continental convention is
written in 1780, Life, I. 281-305. assigned by Mr. Madison to one
CH. VL]
351
THE CONFEDERATION.
The recommendation of the Annapolis commis-
sioners was variously received. In the legislature
of Virginia it met with a cordial approval, and an
act was passed during the autumn to provide for the
Pelatiah Webster, whom he calls
“ an able, though not conspicuous \
citizen,” and who made this sug—
gestion in a pamphlet. published
in May, 1781. Recent researches
have not added to our knowledge
of this writer.v In the summer of
1782, the legislature of New York,
under the suggestion of Hamilton,
passed resolutions recommending
such a convention. On the 1st
A of April, 1783, Hamilton, in a. de-
bate in Congress, expressed his
desire to see a general convention
take place. In 1784, the measure
was a good deal talked of among
the members of Congress, and in
the winter of 1784 — 85, Noah Web-
ster, an eminent political writer
in Connecticut, suggested “ a new
system of government, which should
act, not on the States, but directly
on individuals, and vest in Con-
gress full power to carry its laws
into effect.” In 1786, the subject
was again talked of among mem-
bers of Congress, before the meet-
ing'a't Annapolis. (Madison. El-
liot, V. 117, 118.) But Hamil-
ton’s letter to James Duane, in
1780, 1 although not published at
the time, was of course earlier than
any of these suggestions. In that
letter, after showing thatv the’ fun-
damental defect of the then exist-
ing system was a want of power
in Congress he thus analyzes in
advance the Articles of Confedera-
tion, which had not then taken
effect: -- “ But the Confederation
itself is defective, and requires to a
It is neither fit for 'V
be altered.
War nor peace. The idea of an
uncontrollable sovereignty, in each,
State, over its internal police, will
defeat the other powers given to
Congress, and make our Union
feeble and precarious. There are
instances, without number, where
acts necessary for the general good,
and which rise out of the powers
given to Congress, must interfere
'with the internal police of the
States; and there are as many
instances in -which the particular
States, by arrangements of internal
police, can effectually, though in~
directly, counteract the arrange-
ments of Congress. You have al-
‘ ready had examples of this, for
which I refer to your own memory.
The Confederation gives the States,
individually, too much influence in
the affairs of the army ; they should
have nothing to do with it. The
entire foundation and .disposal of
our military forces ought to belong
to Congress. It is an essential el-
ement of the Union; and it ought
to be the policy of Congress to de-
stroy all ideas‘ of State attachment
in'the army, and make it look up
wholly to them. For this purpose,
all appointments, promotions, and
352
[BOOK III.
THE FEDERAL CONSTITUTION.
appointment of delegates to the proposed conven-
tion.
favor.
In Congress, it was received at first with little
Doubts were entertained there whether any
changes in the federal government could be constitu-
k a common sovereign.
i danger is that the sovereign will
, have too much power, and oppress
provisions whatsoever ought to be
In der by them. It may be appre~
/ "bended, that this may be dangerous
to liberty. But nothing appears
more evident to me, than that we
run much greater risk of having a
weak and disunited federal govern-
ment, than one which will be able
to usurp upon the rights of the
people. Already some of the lines
of the army would obey their States
in opposition to Congress, notwith-
standing the pains we have taken
to preserve the unity of the army.
If any thing would hinder this, it
would be the personal influence
of the general,—-a melancholy
and mortifying consideration. The
forms of our State constitutions
must always give them great weight
in our affairs, and will make it too
difiicult to blind them to the pur-
suit of a common interest, too easy
to oppose what they do not like,
and to form partial combinations,
subversive of the general one.
There is a wide difference between
our situation and that of an empire
under one simple form of govern-
ment, distributed into counties, prov-
inces, or districts, which have no
legislatures, but merely magistrat-
ical bodies to execute the laws of
There the
the parts of which it is composed.
In our case, that of an empire com-
posed of confederate states, each
with a government completely Or-
ganized within itself, having all the
means to draw its subjects to a close
dependence on itself, the danger
is directly the reverse. It is, that
the common sovereign will not have
power sufiicient to unite the differ-
ent members together, and direct the
common forces to the interest and
happiness of the whole . . . . . .
The Confederation, too, gives the
power of the purse too entirely to
the State legislatures. It should
provide perpetual funds in the dis-
posal of Congress, by a land-tax,
poll-tax, or the like. All imposts
upon commerce ought to be laid by
Congress, and appropriated to their
use ; for without certain revenues,
a government can have no power;
that power which holds the purse-
strings absolutely, must rule. This
seems to be a medium which, with-
out making Congress altogether in-
dependent, will tend to give reality
to its authority. Another defect
in our system is, want of method
and energy in the administration.
This has partly resulted from the
other defect; but in a great degree
from prejudice and the want of a
proper executive. Congress have
kept the power too much in their
own hands, and have meddled too
much with details of every sort.
C11. VL]
353
THE CONFEDERATION.
tionally made, unless they were to originate in Con
gress and were then to be adopted by the legisla-
tures of the States, pursuant to the mode provided
by the Articles of Confederation. The legislatures, it
Congress is properly a delibera-
tive corps, and it forgets itself
when it attempts to play the exec-
utive. It is impossible that a
body, numerous as it is, constantly
fluctuating, can ever act with suffi—
cient decision, or with system.
Two thirds of the members, one
half the time, cannot know what
has gone before them, or what con-
nection the subject in hand has to
what has been transacted on former
occasions. The members who have
been more permanent will only give
information that promotes the side
hey espouse, in the present case,
and will as often mislead as en-
lighten. The variety of business
must distract, and the proneness
of every assembly to debate must
at all times delay. Lastly, Con-
gress, convinced of these incon-
veniences, have gone into the meas-
ure of appointing boards. But this
is, in my opinion, a bad plan. A
single man, in each department of
the administration, would be great-
ly preferable. It would give us a
chance of more knowledge, more
activity, more responsibility, and,
of course, more zeal and attention.
Boards partake of the inconven-
iences of larger assemblies; their
decisions are slower, their energy
less, their responsibility more dif-
fused. They will not have the
same abilities and knowledge as an
van. 1. 45
administration by single men. Men
of the first pretensions will not so
readily engage in them, because
they will be less conspicuous, of
less importance, have less oppor-
tunity of distinguishing themselves.
The members of boards will take
less pains to inform themselves
and arrive at eminence, because
they have fewer motives to do it.
All these reasons conspire to give
a preference to the plan of vesting '
the great executive departmen
of the state in the hands of indi- \
viduals. As these men will be,
of course, at all times under the
direction of Congress, we shall
blend the advantages of a monar-
chy in one constitution . . . . . .
I shall now propose the remedies
which appear to me applicable to
our circumstances, and necessary to
extricate our afi‘airs from their pres-
ent deplorable situation. The first
step must be to give Congress powers
competent to the public exigencies.
This may happen in two ways:
one, by resuming and exercising
the discretionary powers I suppose
to have been originally vested in i
them for the safety of the States, "
and resting their conduct on the
candor of their countrymen and the
necessity of the conjuncture; the
other, by calling immediately a con- i
vention of all the States, with full 1
authority to conclude finally upon
354
[Boon III.
THE FEDERAL CONSTITUTION.
Fwd--
was argued, could not adopt any scheme that might
be proposed by a convention; and if it were submitted
to the people, it was not only doubtful what degree
of assent on their part would make it valid, but it
a general confederation, stating to
them beforehand explicitly the evils
arising from a want of power in
Congress, and the impossibility of
supporting the contest on its pres-
ent footing, that the delegates may
come possessed of proper senti-
ments, as well as proper authority,
to give eflicaey to the meeting.
Their commission should include a
right of vesting Congress with the
whole or a proportion of the unoccu-
pied lands, to be employed for the
purpose of raising a revenue, re-
serving the jurisdiction to the States
by whom they are granted. The
Confederation, in my opinion,
should give Congress a complete
sovereignty; except as to that part
of internal police which relates to
the rights of property and life
among individuals, and to raising
money by internal taxes. It is ne-
cessary that every thing belonging
to this should be regulated by
the State legislatures. Congress
should have complete sovereignty
in all that relates to war, peace,
trade, finance; and to the manage-
ment of foreign affairs; the right
of declaring war, of raising armies,
oflicering, paying them, directing
their motions in every respect; of
equipping fleets, and doing the
same with them; of building fortifi-
cations, arsenals, magazines', &c.;
of making peace on such conditions
as they think proper; of regulat-
ing trade, determining with what
countries it shall be carried on;
granting indulgences; laying pro-
hibitions on all the articles of ex-
port or import; imposing duties,
granting bounties and premiums
for raising, exporting, or import-
ing; and applying to their own
use the product of these duties,
only giving credit to the States on
whom they-afe‘raised in the gen-
eral account of revenues and ex-
pense; instituting admiralty courts,
&c.; of coining money, establish-
ing banks on such terms, and with
such privileges, as they think prop-
er; appropriating funds, and doing
whatever else relates to the opera-
tions of finance ; transacting every
thing with foreign nations; mak-
ing alliances offensive and defen-
sive, and treaties of commerce, &c.
. . . . The second step I would
recommend is, that Congress should
instantly appoint the following great
oflicers of state: a Secretary for
Foreign Affairs; a President of
War; a President of Marine; a
Financier; a President of Trade.
. . . . . These oflicers should have
nearly the same powers and func-
tions as those in France analogous
to them, and each should be chief
in his department, with subordi-
nate hoards, composed of assist-
ants, clerks, &c., to execute his
orders.” (Life of Hamilton, I.
284-305.)
on. V1] THE CONFEDERATION. 355
was also doubtful whether they could change the
Federal Constitution by their own direct action. To
these difficulties was to be added the further hazard,
that, if the report of the convention should be made
to Congress, as proposed, they might not finally
adopt it, and if it should be rejected, that fatal
consequences would ensue?
The report of the Annapolis commissioners was,
however, taken into consideration; and in the course
of the following winter a report upon it was made in
Congress, which conceded the fact that the Confeder-
ation required amendments, and that the proposed
convention was the most eligible mode of effecting
them? But this report had to encounter the objec-
tion, entertained by many members, that the meas-
ure proposed would tend to weaken the federal
authority, by lending the sanction of Congress to
an extra-constitutional proceeding. Others consid-
ered that a more summary mode of proceeding was
advisable, in the form of a direct appeal to the peo-
ple of every State to institute State conventions,
which should choose delegates to a general conven-
tion, to revise and amend, or change, the federal
system, and to publish the new constitution for gen-
eral observance, without any reference to the States,
for their acceptance or confirmation.3
1 Abstract of an Address made
to the Legislature of Massachu-
setts, by the Hon. Rufus King, in
October, 1786. Boston Magazine
for the year 1786, p. 406.
2 Mr. Madison’s Notes of De-
There were
hates in the Congress of the Con-
federation. Elliot, V. 96.
3 This was the opinion of Mr.
Jay. He thought that no altera-
tions should be attempted, unless
deduced from the only source of
356 THE FEDERAL CONSTITUTION. [BOOK III.
still others, who preferred that Congress should take
up the defects of the existing system, point them out
to the legislatures of the States, and recommend cer
tain distinct alterations to be adopted by them.1
It was no doubt true, that a convention originat
ing with the State legislatures was not a mode
pointed out by the Articles of Confederation for
effecting amendments to that instrument. But it
was equally true, that the mere amendment of that
instrument was not what the critical situation of the
country required. On the other hand, a convention
originating with the people of the States would un-
doubtedly rest upon the authority of the people, in
its inception; but, if the system which it might frame
were to go into operation without first being adopted
by the people, it would as certainly want the true
basis of their consent. These difficulties were felt
in and out of Congress. But it does not seem to
have occurred to those who raised them, that the
source from which the convention should derive its
powers to frame and recommend a new system of
government was of far less consequence, than that
the mode in which the system recommended should
be adopted, should be one that would give it the
just authority, the people. He without further sanction. See his
seems to have considered that, if
the people of the States, acting
through their primary conventions,
were to send delegates to a gen-
eral convention, with authority to
alter the Articles of Confedera-
tion, the new system would rest
upon the authority of the people,
letter to General Washington, of
date January 7, 1787. Writings
of Washington, IX. 510.
1 Letter of General Knox to
General Washington, January 14,
1787. Writings of Washington,
IX. 513. a
cs. v1.1 THE CONFEDERATION. 357
full sanction and authority of the people themselves.
A constitution might be framed and recommended
by any body of individuals, whether instituted by the
legislatures or by the people of the States; but if '
adopted and ordained by the States in their corpo-~
rate capacities, it would rest on one basis, and if
adopted and ordained by the people of the States,
acting upon it directly and primarily, it would ob-
viously rest upon another, a different, and a higher
authority.
The latter mode was not contemplated by Con-
gress when they acted upon the recommendation of
the Annapolis commissioners. Accustomed to no
other idea of a union than that formed by the States’ ~
in their corporate capacities as distinct and sover-
eign communitiesvgkbelonging to a body constituted
by the States, and‘ therefore officially related rather
to the governments than to the people of the States;
and entertaining a becoming and salutary fear of de-
parting from a constitution which they had been ap-
poinjed to administer, —- the members of the Con-
gress of 1786 - 87 were not likely to go beyond the
Annapolis recommendation, which in fact proposed
that the new system should be confirmed by the
' legislatures of the States.
But the course of events tended to a different re-
sult, — to an actual, although a peaceable revolution,
by the quiet substitution of a new government in
place of the old one, and resting upon an entirely
different basis. While Congress were debating the
objections to a convention, the necessity for action
358 THE FEDERAL CONSTITUTION. [BOOK 111
became every day more stringent. The insurrection
in Massachusetts, which had followed the meeting
of the commissioners at Annapolis and had reached
a dangerous crisis when their report was before Con-
gress, had alarmed the people of the older States by
the dangers of an anarchy with which the existing
national government would be obviously unable to
cope. The peril of" losing the navigation of the Mis-
sissippi, and with it the Western settlements, through
the inefficiency of Congress, was also at that moment
impending; while, at the same time, the commerce
of the country was nearly annihilated by a course of
policy pursued by England, which Congress was ut-
terly unable to encounter. Under these dangers and
embarrassments, a state of public opinion was rapidly
developed, in the winter of 1787, which drove Con
gress to action. The objections to the proposal be-
fore them yielded gradually to the stern require-
ments of necessity, and a convention Was at last ac-
cepted, not merely as the best, but as the only prac-
ticable, mode of reaching the first great object by
Which an almost despairing country might be re-
assured of its future welfare.
The final change in the views of Congress in re-
gard to a convention Was produced by the action of
the legislature of New York. In that body, as we
have seen, the impost system had been rejected, in
the session of 17 86, and the Governor of the State
had even refused to reassemble the‘ legislature for the
reconsideration of this subject. A new session com-
menced in January, 1787, in the city of New York,
CH, v1.1 THE CONFEDERATION. 359
where Congress was also sitting. A crisis now oc-
curred, in which the influence of Hamilton was ex-
erted in the same manner that it had been in the
former session, and with a similar result. On that
occasion he had followed up the rejection of the im-
post system with a resolve for the appointment of
commissioners to attend the meeting at Annapolis.
It was now his purpose, in case the impost system
should be again rejected, to obtain the sanction of
Congress to the recommendation of a convention,
made by the Annapolis commissioners. This, he was
aware, could be effected only by inducing the legis-
lature of New York to instruct the delegates of their
State in Congress to move and vote for that decisive
measure. The majority of the members of Congress
were indisposed to adopt the plan of a convention;
and although they might be brought to recommend
it at the instance of a State, they were not inclined
to do so spontaneously? The crisis required, there-
fore, all the address of Hamilton and of the friends
of the Union, to bring the influence of one of these
bodies to bear upon the other.
The reiterated recommendation by Congress of the
impost system, now addressed solely- to the State
of New York, who remained alone in her refusal,
necessarily occupied the earliest attention of the new
legislature? A warm discussion upon a bill intro-
s1
1 Madison. Elliot, V. 96. legislature to consider the revenue
2 It was brought before them by system, “ a subject,” he observed,
the speech of the Governor (Clin- “which had been repeatedly sub-
ton), informing them of the reso- mitted to them, and must be well
lutions of Congress, which had re- understood.”
quested an immediate call of the
360 THE FEDERAL CONSTITUTION. [BOOK III
duced for the purpose of effecting the grant as Con
gress had asked for it, ended, on the 15th of Febru-
ary, in its defeat. The subject of a general conven-
tion of the States, according to the plan of the An-
napolis commissioners, was then before Congress, on
the report of a grand committee ;1” and Congress were
hesitating upon its expediency. At this critical junc-
ture, Hamilton carried a resolution in the legislature of
New York, instructing the delegates of that State in
Congress to move for an act recommendingthe States
to send delegates to a convention for the purpose of
revising the Articles of Confederation, which, four
days afterwards, was laid before Congress.2
Virginia and North Carolina had already chosen
delegates to the Convention, in compliance with the
recommendation from Annapolis; and Massachusetts
was about to make such an appointment, under the
influence of her patriotic Bowdoin. In this posture
of affairs, although the proposition of the New York
delegation failed to be adopted,8 the fact that she had
1 Journals, XII. 15. February
21, 1787.
9 Ibid. The vote rejecting the
impost bill was taken on the 15th
of February. The resolution of
instructions was passed on the 17th,
and was laid before Congress on
the 21st.
3 Mr. Madison has recorded the
suspicious with which this resolu-
tion of the New York legislature
was received. Their previous re-
fusal of the impost act, and their
known anti-federal tendencies, gave
rise, he says, to the belief that
their object was to obtain a con-
vention without having it called
under the authority of Congress,
or else, by dividing the plans of
the States in their appointments
of delegates, to frustrate them all.
(Madison. Elliot, V. 96.) But
whatever gi'ounds there might have
been for either of these suspicions,
the latter certainly was not well
founded. The New York resolu-
tion was drafted by Hamilton, and
although it was passed by a body
in which a. majority had not exhib'
ited adisposition to enlarge the an
on. V1]
361
THE CONFEDERATION.
thus solicited the action of Congress was of decisive
influence, when the members from Massachusetts fol-
lowed it immediately by a resolve more acceptable to
a majority of the assembly.1 _
thority of Congress, it was mani-
festly not intended to prevent the
adoption of the plan of a conven-
tion.
by Congress of an act, recommend-
ing the States to institute a con-
vention of representatives of the
States to revise the Articles of
Confederation; and the resolution
introduced by the New York dele-
gation into Congress proposed that
the alterations and amendments
which the convention might con-
sider necessary to render the Ar-
ticles of Confederation “ adequate
to the preservation and support of
the Union,” should be reported to
Congress and to the States respec-
tively, but did not direct how they
should be adopted. This would
have left open a great question,
and seemed to be a departure from
the mode in which the Articles of
Confederation directed that amend-
ments should be made. Probably
it was Hamilton’s intention to
leave the form in which the new
system should be adopted for fu-
ture action, without fettering the
movement by prescribing the mode
before the convention had assem-
bled. But this'eourse was practi-
cally impossible’. Congress could
not be prevailed upon to recom-
mend, a convention, without mak-
ing the condition that the new pro-
visions should be reported to Con-
voL. I. ' 46
It contemplated the passage '
gress and confirmed by tne States.
This gave rise to great embarrass-
- ment in the convention, when it
came to be admitted that the Con
federation must be totally super-
seded, and not amended; and it was
finally disregarded. But it was
the only mode'in which the con-
vention could have been recom-
mended by Congress, and without
that recommendation, probably, it
could not have been instituted.
1 The resolution introduced by
the Massachusetts delegation, when
that of New York had been reject-
ed, after being amended, was final-
ly passed in the following terms:
“ Whereas, there is provision in
the Articles of Confederation and
' Perpetual Union for making alter-
ations therein, by the assent of a
Congress of the United States, and
of the legislatures of the several
States; and whereas experience
hath evinced that there are defects
in the present Confederation, as a
mean to remedy which several of
the States, and particularly the
State of New York, by ‘express
instructions to their delegates in
Congress, have suggested a con-
vention for the purposes expressed
in the following resolution; and
such a convention appearing to be
the most probable means of estab-
lishing in these States a firm na-
tional government, Resolved, That,
362 THE FEDERAL CONSTITUTION. [BOOK m
The recommendation, as it went forth from Con
gress, was strictly limited to a revision of the Arti
cles of Confederation, by a convention of delegates,
and the alterations and new provisions were to be
reported to Congress, and were to be agreed to in
Congress and confirmed by the States. Thus the
resolution pursued carefully the mode of amendment
and alteration provided by the Articles of Confedera-
tion, except that it interposed a convention for the
purpose of originating the changes to be proposed in
the existing form of government; adding, however,
the great general purpose of rendering the Federal
Constitution adequate to the exigencies of govern-
ment and the preservation of the Union.
The point thus gained was of vast and decisive im-
portance. That Congress should forego the right of
originating changes in the system of government ;1
that it should advise the States to confer that power
in the opinion of Congress, it is 1 The Articles of Confedera
expedient that, on the second Mon-
day in May next, a convention of
delegates, who shall have been ap-
pointed by the several States, be
held at Philadelphia, for the sole
and express purpose of revising the
Articles of Confederation, and re-
porting to Congress and the sever-
al legislatures such alterations and
provisions therein as shall, when
agreed to in Congress and confirmed
by the States, render the Federal
Constitution adequate to the exi-
gencies of government and the pres-
ervation of the Union.” 'Journals,
XII. 17. February 21. 1787
tion did not expressly require that
amendments should be prepared
and proposed in Congress. The
thirteenth Article provided, that
no alteration should be made, un-
less it should “ be agreed to in a
Congress of the United States, and
be afterwards confirmed by the leg
islatures of every State.” But it
was clearly implied by this, that
Congress were to have the power
of recommending alterations, and
this power was exercised in 1783,
with regard to the rule of appor-
tionment.
ca. v1.1 THE CONFEDERATION. 363
upon another assembly; and that it should sanction
a general revision of the Federal Constitution, with
the express declaration of its present inadequacy, —
were all preliminaries essential to a successful reform.
Feeble as it had become from the overgrown vitality
of State power, and from the lack of numbers and
talent upon its roll, it was still the government of
the Union; the Congress of America; the lineal suc-
cessors of that renowned assembly which had defied
the power of England, and brought into existence
the thirteen United States. If it stood but the poor
shadow of a great name, it was still a name with
which to do more than conjure; for it bore a con-
stitutional relation to the States, still reverenced by
the wise and thoughtful, and still necessary to be
regarded by all who desired the security of con-
stitutional liberty. The risk of immediate attempts
to establish a monarchical form of government was
not inconsiderable. The risk that civil confusion
would follow a longer delay to provide for the
pressing wants of the country was greater. De-
jection and despondency had taken hold of many
minds of the highest order; while the great body of
the people were desiring a change; which they could
not define, and which they feared, while they invited
its approach. In such a state of things, considerate
men were naturally unwilling to turn entirely away
from Congress, or to exclude its agency altogether
from the processes of reform, and to embark upon the
uncertain sea of political experiment, without chart
or rule to guide their course; for no man~could tell
364 ' THE FEDERAL CONSTITUTION. [BOOK in.
what projects, what schemes, and what influences
might arise to jeopard those great principles of re-
publican liberty on which the political fabric had
rested from the Declaration of Independence to the
present hour of danger and distress.
For the wise precedent, thus established, of pla
cing the formation of a new government under the
direct sanction of the old one, the people of this
country are, indebted chiefly to Hamilton. Nothing
can be more unfortunate, in any country, than the
necessity or the rashness which sweeps away an es-
tablished constitution, before a substitute has been
devised. Whether the interval be occupied by pro-
visional arrangements or left to a more open anar-
chy, it is an unfit season for the creation of new
institutions. At such a time, the crude projects of
theorists are boldly intruded among the deliberations
of statesmen; despotism lies in wait for the hazards
by which liberty is surrounded; the multitude are
unrestrained by the curb of authority; and society is
exposed to the necessity of accepting whatever is of-
fered, or of submitting to the first usurper who may
seize the reins of government, because it has nothing
on which to rest as an alternative. True liberty has
gained nothing, in any age or country, from revolu-
tions, which have excluded the possibility of seeking
or obtaining the assent of existing power to the re-
forms which the progress of society demands.
In the days when the Confederation was tottering
to its fall; when its revenues had been long ex-
hausted; and when its Congress embraced, in actual
on. V1.) THE CONFEDERATION. 365
attendance, less than thirty delegates from only elev-
en of the States, it would have been the easy part
of a demagogue to overthrow it by a sudden appeal
to the passions and interests of the hour, as the
first step to a radical change.1 But the great man,
whose mature and energetic youth, trained in the
school of Washington, had been devoted to the for-
mation and establishment of the Union, knew too
well, ' that, if its golden cord were once broken, no
human agency could restore it to 'life. He knew the
value of habit, the respect for an established, how-
ever enfeebled authority; and while he felt and in-
sisted on the necessity for a new constitution, and
did all in his power to make the country perceive
the defects of the old one, he wisely and honestly
admitted that the assent of Congress must be gained
to any movement which proposed to remedy the evil.
But the reason for not moving the revision of the
system of government by Congress itself was one that
could not be publicly stated. It was, that the highest
civil talent of the country was not there. The men
1 Governor Randolph of Vir-
ginia, writing to General Wash-
ington, on the 11th of March,
1787, and urging him to attend
the Convention, said: “ I must
call upon your friendship to excuse
me for again, mentioning the Con-
vention at Philadelphia. Your de-
termination having been fixed on
a thorough review of your situa-
tion, I feel like an intruder when
I again hint a wish that you would
join the delegation. But every
day brings forth some new crisis,
and the Confederation is, I fear,
the last anchor of our hope. Con-
gress have taken up the subject,
and appointed the second Monday
in May next as the day of meeting.
Indeed, from my private correspond-
ence, I doubt whether the eaz'stence
of that body, even through this year,
may not be questionable under 0m
present circumstances.” Sparks’s
W'ashington, IX. 243, note.
366 THE FEDERAL CONSTITUTION. [BOOK III.
to whom the American people had been accustomed
to look in great emergencies, —- the men who were
called into the Convention, and whose power and
wisdom were signally displayed‘ in its deliberations,
-- were then engaged in other spheres of public life,
or had retired to the repose which they had earned
in the great struggle with England. Had the at-
tempt been made by Congress itself to form a consti-
tution for the acceptance of the States, the control-
ling influence and wisdom of Washington, Franklin’s
wide experience and deep sagacity, the unrivalled
capacities of Hamilton, the brilliant powers of Gou-
verneur Morris, Pinckney’s fertility, and Randolph’s
eloquence, with all the power of their eminent col?
leagues and all the strength of principle and of char
acter which they brought to the Convention, would
have been withheld from the effort. One great man,
it is true, was still there. Madison was in Congress -
and Madison’s part in the framing of the Constitu
tion was eminently conspicuous and useful. But
without the concentration of talent which the Con-
vention drew together, representing every interest
and every part of the Union, nothing i could have
been presented to the Statesa by the Congress of
1787, which would have commanded their assent.
The Constitution owed as much, for its acceptance,
to the weight of character of its framers, as it did to
their wisdom and ability, for the intrinsic merits
which that weight of character enforced.
It was fortunate, also, that Congress did nothing
more than to recommend the Convention, without
CH. VL]
367
THE CONFEDERATION.
undertaking to define its powers.
The doubts con-
cerning its legality, which led many persons of great
influence to hesitate in sanctioning it, were thus re-
moved, and the States were left free to join in the
movement, as an expedient to discover and remedy
the defects of the federal government, without fetter-
eXplicit instructions.1 In
ing their delegates with
1 The States of Virginia, New
Jersey, Pennsylvania, North Caro-
lina, and Delaware had appointed
their delegates to the Convention
before it was sanctioned by Con—
gress. Virginia led the way; and
the following preamble to her act
shows with what motives and ob-
jects she did so. “ Whereas, the
commissioners who assembled at
Annapolis, on the 14th day of Sep-
tember last, for the purpose of de-
vising and reporting the means of
enabling Congress to provide efl‘ec-
tually for the commercial interests
of the United States, have repre-
sented the necessity of extending
the revision of the federal system
to all its defects, and have recom-
mended that deputies for that pur-
pose be appointed by the several
legislatures, to meet in convention
in the city of Philadelphia, on the
2d day of May next, —- a provision
which was preferable to a discus-
sion of the subject in Congress,
where it might be too much inter-
rupted by the ordinary business
before them, and where it would,
besides, be deprived of the valuable
counsels of sundry individuals who
are disqualified by the constitution
or laws of particular States, or re-
strained by peculiar circumstances
from a seat in that assembly : And
whereas the General Assembly of
this Commonwealth, taking into
view the actual situation of the
Confederacy, as well as reflecting
on the alarming representations
made from time to time by the
United States in Congress, partic—
ularly in their act of the 15th day
of February last, can no longer
doubt that the crisis is arrived at
which the good people of America
are to decide the solemn question,
whether they will, by wise and
magnanimous efforts, reap the just
fruits of that independence which
they have so gloriously acquired,
and of that Union which they have
cemented with so much of their
common blood,—or whether, by
giving way to unmanly jealousies
and prejudices, or to partial and
transitory interests, they will re-
nounce the auspicious blessings
prepared for them by the Revo-
lotion, and furnish to its enemies
an eventful triumph over those by
whose virtue and valor it has been
accomplished: And whereas the
same noble and extended policy,
and the same fraternal and afi'ec-
tionate sentiments, which originally
368 THE FEDERAL CONSTITUTION. [BOOK 111.
this way the Convention, although experimental and
anomalous, derived its influence from the sources in
which it originated, and was enabled, though not
without difficulty, to meet the crisis in which the
country was placed. That crisis was one of a singu-
lar character; for the continued existence of the
Union, and the fate of republican governments, were
both involved. It was felt and admitted by the
wisest men of that day, that if the Convention should
fail in devising and agreeing, upon some system of
government, at once capable of pervading the coun-
determined the citizens of this Com-
monwealth to unite with their breth-
ren of the other States in establish-
ing afederal government, cannot
but be felt with equal force now as
motives to lay aside every inferior
consideration, and to concur in
such further concessions and pro-
visions as may be necessary to se-
cure the great objects for which
that government was instituted,
and to render the United States as
happy in peace as they have been
glorious in War: .Be it‘ therefore
enacted, &c., That seven commis-
sioners be appointed, by joint bal-
lot of both houses of Assembly,
who, or any three of them, are
hereby authorized as deputies from
this Commonwealth to meet such
deputies as may be appointed and
authorized by other States, to as-
semble in convention at Philadel-
phia, as above recommended, and
to join with them in devising and
discussing all such alterations and
further provisions as may be neces-
sary to render the Federal Consti-
tution adequate to the exigencies
of the Union; and in reporting
such an act, for that purpose, to
the United States in Congress, as,
when agreed to by them, and duly
confirmed by the several States,
will effectually provide for the
same.” (Elliot, I. 132.) The
instructions of New Jersey to her
delegates were, “ to take into con-
sideration the state of the Union as
to trade and other important ob
jects, and of devising such other
provisions as shall appear to be ne-
cessary to render the constitution
of the federal government adequate
to the exigencies thereof.” (Ibid.
128.) The act of Pennsylvania
provided for the appointment of
deputies to join with the deputies
of other States “in devising, de-
liberating on, and discussing all
such alterations and further pro~
visions as may be necessary to ren-
der the Federal Constitution fullv
adequate to the exigencies of the
on. v1.1 THE CONFEDERATION. 369
try with an efficient control, and essentially republi-
can in its form, the Federal Union would be at an
end. But its dissolution, in the state in which the
country then was, must have been followed by an at-
tempt to establish monarchical government; because
the State institutions were destitute of the strength
necessary to encounter the agitation which would
have followed the downfall of the federal power,
and yet some substitute for that power must have
been found. But without civil war, and the most
frightful social convulsions, nothing in the nature of
Union, and in reporting such act
or acts, ,for that purpose, to the
United States in Congress assem-
bled, as, when agreed to by them,
and duly confirmed by the several
States, will effectually provide for
the same.” (Ibid. 130.) The in-
structions of Delaware were of the
same tenor. (Ibid. 131.) The act
of North Carolina directed her dep-
uties “to discuss and decide upon
the most effectual means to remove
the defects of our Federal Union,
and to procure the enlarged pur-
poses which it was intended to
effect; and that they report such
an act to the General Assembly of
this State, as, when agreed to by
them, will effectually provide for
the same.” (Ibid. 135.) The in-
structions to the delegates of New
Hampshire were of the same tenor.
(Ibid. 126.) The appointment of
the delegates of Massachusetts was
made with reference to the terms
of the resolve of Congress recom-
mending the Convention, and for
von. 1. 47
the purposes declared therein. (Ibid.
126, 127.) The appointment of
Connecticut was made with the
same reference, and with the fur
ther direction “to discuss upon
such alterations and provisions,
agreeably to the general principles
of republican government, as they
shall think proper to render the
Federal Constitution adequate to
the exigencies of government and
the preservation of the Union ; and
they are further directed, pursuant
to the said act of Congress, to re-
port such alterations and provis-
ions as may be agreed to by a ma-
jority of the United States repre-
sented in convention, to the Con-
gress of the United States, and
to the General Assembly of this
State.” (Ibid. 127.) The reso
lutions of New York, Maryland,
South Carolina, and Georgia pur-
sued nearly the same terms with
the resolve of Congress. (Ibid.
127, 131, 136, 137.)
370 THE FEDERAL CONSTITUTION. [BOOK m.
monarchy could ever have been established in this
country after the Revolution. “ Those who lean to a
monarchical government,” said Washington, “ have
either not consulted the public mind, or they live in
a region which (the levelling principles in which they
were bred being entirely eradicated) is much more
productive of monarchical ideas than is the case in
the- Southern States, where, from the habitual dis
tinctions which have always existed among the peo-
ple, one would have expected the first generation
and the most rapid growth of them. I am also clear,
that, even admitting the utility, nay, necessity, of
the form, the period is not arrived for adopting the
change without shaking the peace of this country to
its foundation. That a thorough reform of the pres-
ent system is indispensable, no one, who has a capa-
city to judge, will deny; and with hand and heart I
hope the business will be essayed in a full conven-
tion. After which, if more powers and more decision
are not found in the existing form, if it still wants
energy and that secrecy and despatch (either from
the non-attendance or the local views of its members)
which are characteristic of good government, and if
it shall be found (the contrary of which, however, I
have always been more afraid of than the abuse of
them) that Congress will, upon all proper occasions,
exert the powers which are given with a firm and
steady hand, instead of frittering them back to the
States, where the members, in place of viewing them-
selves in their national character, are too apt to be
looking, - I say, after this essay is made, if the sys-
on. v1.1 THE CONFEDERATION. 371
tem proves inefiicient, conviction of the necessity of
a change will be disseminated among all classes of
the people. Then, and not till then, in my opinion,
can it be attempted without involving all the evils
of civil discord.”1
There were other difficulties besides those which
may be called legal, or technical, attending this effort
to revise the system of the federal government. The
failure of that system, as it had been put in opera-
tion in 1781, had, to a great extent, chilled the hopes
of many of the best statesmen of America. It had
been established under auspices which seemed to
promise far different fruits from those it had actually
produced. Its foundations were laid in the patriotism
and national feeling of the States. The concessions
which had been made to secure a union of republics,
having various, and, in some respects, conflicting in-
terests, seemed at first to guarantee the prompt and
faithful performance of its obligations. But this
fair promise had melted into most unsubstantial per-
formance. The Confederation was framed upon a
principle which never has enabled, and probably
never will enable, a government to become effective
and permanent, — the principle of a league.
Another and a very serious cause for discourage-
ment was the sectional jealousy and State pride
which had been constantly growing, from the Decla-
ration of Independence to the time when the States
were called upon to meet each other upon broader
1 Sparks’s Washington, IX. 223, 225, 230, 236, 508-590.
37 2 THE FEDERAL CONSTITUTION. [BOOK In.
grounds, and to make even larger sacrifices than
at any former period. It is difficult to trace to
all its causes the feeling which has at times ar-
rayed the different extremities of this Union against
each other. It was very early developed, after the
different provinces were obliged to act together for
their great mutual objects of political independence;
but, even in its highest paroxysms, it has always at
last found an antidote in the deeper feelings and
more sober calculations of a consistent patriotism.
Perhaps its prevalence and activity may with more
truth be ascribed, in every generation, to the ambi-
tion of men who find in it a convenient instrument
of local influence, rather than to any other cause.
It is certain, that, when it has raged most violently,
this has ,been its chief ‘ aggravating element. The
differences of neither manners, institutions, climate,
nor pursuits would at any time have been suflicient
to create the perils to which the Union of the States
has occasionally been exposed, without the mischiev-
ous agency of men whose personal objects are, for
the time, subserved by the existence of such pecu-
liarities. The proof of this is to be found in the fact,
that the seasonable sagacity of the people has always
detected the motives of those who have sought to
employ their passions, and has compelled them at
last to give way to that better order of men who
have appealed to their reason.
The difficulty of getting the assent of all the States
to radical changes in the federal system, and the un-
certainty as to the mode in which such changes could '
Cs. v1.1 THE CONFEDERATION. 373
be efi'ectively ad opted, were also among the reasons
which led many persons to regard the Convention as
an experiment of doubtful expediency. The States
had hitherto acted only in their corporate capacities,
in all that concerned the formation and modification
of the Union. The idea of a Union founded on
the direct action of the people of the States, in a pri-
mary sense, and proceeding to establish a federal gov-
ernment, of limited powers, in the same manner in
which ‘the people of each State had established their
local constitutions, had not been publicly broached,
and was not generally entertained. Indeed, there
was no expectation on the part of any State, when
the delegates to the Convention were appointed, that
any other principle would be adopted as the basis of
action, than that by which the Articles of Confedera-
tion contemplated that all changes should be effected
by the action of the States assembled in Congress,
confirmed by the unanimous assent of the different
State legislatures. .
The prevailing feeling, among the higher states-
men of the country, was,‘ that the Convention was an
experiment of doubtful tendency, but one that must
nevertheless be tried. Washington, Madison, Jay,
'Knox, Edmund Randolph, have all left upon record
the evidence of their doubts and their fears, as well
as of their ‘convictions of the necessity for this last
effort in favor of the preservation of a republican
form of government.1 advanced to meet
1‘ Sparks’s Washington,IX. 223, 225, 230, 236, 508 - 520.
I
If‘
374 THE FEDERAL CONSTITUTION. [Boon m.
the crisis, with perhaps less hesitation than any of
the. Revolutionary statesmen. His great genius for
political construction; his large knowledge of the
means by which a regulated liberty may be secured;
and the long study with which he had contemplated
the condition of the country, led him to enter the
Convention with more of eagerness and hope than
most of its members. He saw, with great clearness,
that the diificulty which embarrassed nearly all his
contemporaries —- the question of the mode of en
acting a new constitution — was capable of solu-
tion. He did not propound that solution in ad-
vance of the assembling of the Convention; for it
was eminently necessary that the States should not
be alarmed by the suggestion of a principle so novel
and so unlike the existing theory of the Union. But
he was fully prepared to announce it, so soon as it.
could be received and acted upon.
It was under such auspices and with such views
that the Convention assembled at Philadelphia, on
the fourteenth day of May in the year seventeen
hundred and eighty-seven.
At that time, the world had witnessed no such
spectacle as that of the deputies of a nation, chosen
by the free action of great communities, and assem-
bled for the purpose of thoroughly reforming its con-
stitution, by the exercise, and with the authority, .of
the national will. All that had been done, both in
ancient and in modern times, in forming, moulding,
or modifying constitutions of government, bore little
on. V1] THE CONFEDERATION. 3'7 5
resemblance to the present undertaking of the States
of America. Neither among the Greeks nor the R0-
mans was there a precedent, and scarcely an analogy.
The ancient leagues of some of the cities or repub-
lics of Greece did not amount to constitutions, in the
sense of modern political science; and the Roman re-
public was but the domination of a single race of the
inhabitants of a single city.
In modern Europe, we find no trace of political
science until after the nations were divided, and
partial limits set to the different orders ‘and powers
of the state. The feudal system, which acknowl-
edged no relations in society but those of lord and
serf, necessarily forbade all consideration of any
forms of government which were not essentially
founded on that relation; and it was not until that
relation had been in some degree broken in upon,
that there began to be any thing like theoretical
inquiries into natural rights. When this took place,
—- at the end, or towards the end, of the Middle
Ages, — the peculiar forms of the European govern-
ments gave rise 'to inquiries into the relation of sov-
ereign and subject. From the beginning of the fif-
. teenth down to the endv of the seventeenth century,
there were occasional $cussions on the Continent,
growing out of particular events, of such; questions
as the right of the people to depose bad princes, and
how far was lawful to resist oppression. But
‘questions- of constitutional form, or of the right of the
people to arrange and distribute the different powers
of government, or the best, mode of doing it, did not
arise at all.
376 THE FEDERAL CONSTITUTION. ’ [BOOK l.
In England, from the time of the Conquest, until
Magna Charta had gone far towards destroying ‘the
system, a feudal monarchy had precluded all ques-
tions touching the‘ form or the spirit of government.
The chief traits of the present constitution, which
arose in av great measure from the circumstance ‘that
the lower orders of the nobility became gradually so
much amalgamated with the people as to give rise
to the distinct power of the commons, have all along
been inconsistent with the enactment of new forms
of civil polity ; although from the time of the Refor-
mation to the Revolution of 1688, the active princi-
ples of English freedom have, at different junctures,
‘ made advances of the utmost importance. The foun-
dations on which the Stuarts sought to establish
their throne were directly at variance with the spirit
and principles of the Reformation, which totally de-
nied the doctrine of passive and unlimited obedience,
and which led to the struggles that gave birth to
- the Puritans. Those severe reformers, whose church
constitution was purely republican, naturally sought
to carry its principles into the state. The result was
the Parliamentary troubles of James the First, the
execution of Charles the First under the forms of
judicial proceeding, and th?’ despotism of Cromwell
‘under the forms of a commonwealth. Charles the
Second returned, untaught by all that had happened,
to attempt the reéstablishment of the Stuart princi-
ples of unlimited obedience; and James the Second,
who naturally united to them the Catholic religion,
being driven from his kingdom, the question arose
on. v1.1 _ THE CONFEDERATION. 37 '7
of a vacant throne, and how it should be filled. In
all these events, however, from the death of Eliza-
beth to the great discussions which followed the ab-
dication of James the Second, the idea of calling
upon the people of England to frame a government
of their own choice, and to define the limits and
powers of its various departments, never arose. The
Convention Parliament discussed, and were sum-
moned to discuss, but a single fundamental ques-
tion, -— that involving the disposal of the crown.
Still, the political troubles of England gave rise to
many theoretical discussions of natural right, and of
the origin and structure of society. As soon as
Charles the First was executed, this discussion arose '
abroad, from his friends, who wrote, or influenced
others to write, in defence of the divine right of
kings. Hobbes and Filmer followed, in England, on
the same side, and Milton, Locke, and Algernon
Sidney vindicated the natural and inalienable rights -
of the subjebt and the citizen. In the works of
these great writers, the foundations of society are
examined with an acuteness which has left little to
be done in the merely speculative part of political
inquiry. But the practical effect of their theories
never fint farther than the promotion, to a greater
or less extent, of the particular views which they de-
sired to inculcate concerning the existing constitu-
tion, or the particular events out of which the discus-
sions arose.
Nor should we forget what had been done in
_ France, by the wise and cautious 'Montesquieu, or by
von. 1. 48
378 THE FEDERAL CONSTITUTION. [BOOK III.
the vehement and passionate Rousseau, and the
writers of his school. The former, drawing all his
views from history and experience, undertook to
show, from the antecedents of each state, the charac-
ter of its constitution, to explain and develop its pe
culiar properties, and thence to determine the princi
ples on which its legislation should proceed. The
latter, starting from an entirely opposite point, and
designing to write a treatise on Politics in the widest
sense of the term, became a mere theorist, and pro-
' duced only certain brilliant speculations upon the
social compact, of a purely democratic character,
as fragments of a work which he never finished.
. The crowd of writers, too, who preceded, and in part
created the French Revolution, which was ust com-
mencing its destructive activity as our Constitution
was formed, really contributed nothing of practical
value to the solution of such great questions as the
mode of forming, vesting, and distributing the various
branches of sovereign power. '
Thus there was little for American statesmen of
that day to look to, in the way of theories which had
been practically proved to be sound and useful.
The constitution of England, it is true, presented to
them certain great maxims, the application which
was not unsuited to the circumstances and habits of
a people whose laws and institutions had been de-
rived from their English ancestors and their Eng-
lish blood. But the constitution of England, em-
bracing the three estates of King, Lords, and - Com-
mons, had become what it was, only by the extortion
on. v1.1 ’ THE CONFEDERATION. 379
from the crown of the rights and privileges of the
two orders of the people. The American Revolu-
tion, on the other hand, had settled, as the funda-
mental principle of American society, that ‘all sover-
eignty resides originally in the people; that they
derive no rights by way of grant from any other
source; and consequently, that no powers or privi-
leges can exist in any portion of the people as dis-
tinct from the whole. The English constitution
could, therefore, furnish only occasional ‘analogies
for particular details in the structure of departments,
which might after all really require to be founded
on different fundamental principles. But the great
problem to be solved —for which English experience '
was of no value—was, so to parcel out those ortions
of original sovereignty, which the people of t e States
might be willing to withdraw from their State insti-
tutions, as to constitute an efficient federal republic,
which yet would not control’ and absorb the powers
that might be reserved. But to comprehend the re-
sults that were accomplished, and to understand the
true nature of the system bequeathed to us, it is
indispensable to examine in detail the means and
processes by which it was formed. ’ Before we turn,
however, to this great subject, the characters of the
principal framers of the Constitution demand on our
attention. , . , ~- 1.
J
CHAPTER VII.
Tax FRAMERS OF THE CONSTITUTION.—WAsHmeToN, PRESIDENT 0!
THE CONVENTION. ’
THE narrative to which the reader has thus far
attended must now be interrupted for a while, that
he may pause upon the threshold of an assembly
which had been summoned to the grave task of
remodeling the constitution of this country, and
_ here consider the names and characters of the men
to whom its responsible labors had been intrusted.
The civil deeds of statesmen and lawgivers, in estab-
lishing and forming institutions, incorporating prin-
ciples into the forms of public administration, and
setting up the defences of public security and pros-
perity, are far less apt to attract and hold the atten-
tion of mankind, than the achievements of military
life. The name, indeed, may be for ever associated
with the work of the hand; but the mass of man-
kind do not study, admire, or repeat the deeds of
the lawgiver, as they do those of the hero. Yet he
who has framed a law, or fashioned an institution in
which some great idea is made practical to the con-
ditions of human existence, has exercised the highest
attributes of human reason, and is to be counted
among the "benefactors of his race.
Ca. vn] rrs FRAMERS. 4 381
The framers of the Constitution of the United
States assembled for their work amidst difficulties
and embarrassments of an extraordinary nature. No
general concert of opinion had taken place as to
what was best, or even as to what was possible to be
done. Whether it were wise to hold a convention,
whether it were even legal to hold it, and whether, if
held, it would be likely to result in any thing useful
to the country, were points upon which the most /
opposite opinions prevailed in every State of the
Union. But it was among the really fortunate,
although apparently unhappy, circumstances under \
which they were assembled, ' that the country had
experienced much trial, suffering, distress, and fail-
ure. It has been a disagreeable duty to ‘describe
the disasters and errors of a period during which
the national character was subjected to the discipline
of adversity. We now come to the period of com-
pensation which such discipline inevitably brings.
There is a law of the moral government of the
universe, which ordains that all that is great and
valuable and permanent in character must be the
result, not of theoretical teaching, or natural aspira-
tion, — of spontaneous resolve, or uninterrupted suc-
cess, — but of trial, of suffering, of the fiery furnace
of temptation, of the dark hours of disappointment
and defeat. The character of the man is ‘distinguish-
able from the character of the child that he once was,
chiefly by the effects of this universal law. There
are the same natural impulses, the same mental,
moral, and physical constitution, with which he was
382 THE FEDERAL CONSTITUTION. [BOOK III.
born into the world. What is it that has given him
the strength, the fortitude, the unchanging princi-
ple, and the moral and intellectual power, which he
exhibits in after years’! It has not been constant
pleasure and success, nor unmingled joy. It has
been the hard discipline of pain and sorrow, the
stern teachings of experience, the struggle against
the consequences of his own errors, and the chas-
tisement inflicted by his own faults.
This law pertains to all human things. It is as
clearly traceable in its application to the character
of a people, as to that of an individual; and as the
institutions of a people, when voluntarily formed by
them out of the circumstances of their condition,
are ‘necessarily the result of the previous discipline
and the past teachings of their career, we can trace
this law also in the creation and growth of what is
most valuable in their institutions. When we have
so traced it, the unalterable relations of the moral '
universe entitle us to look for the elements of great-
ness and strength in whatever has been the product
of such teachings, such discipline, and such trials.
The Constitution of the United States was emi-
nently the creature of circumstances; — not of cir
cumstances blindly leading the blind to an uncon-
scious submission to an accident, but of circum-
stances which ofi'ered an intelligent choice’ of the
means of happiness, and opened, from the experience
of the past, the plain path of duty and success,
stretching onward 'to the future. All that has been
said in the ‘previous chapters tends to illustrate this
on. v11] rrs FRAMERS. 383
fact. We have seen the American people, — divided
into separate and isolated communities, without na-
tionality, except such as resulted from a general com-
munity of origin, - undertaking together the. work
of throwing off the domination of their parent state.
We have seen them enter upon this undertaking with-
out- forming any political bond of a national char-
acter, and without instituting any proper national
agency. We have seen, that the first government
which they created was, practically, a mere general
council for the recommendation of measures to be
adopted and executed by the several constituencies
represented. We have seen no machinery instituted
for the accomplishment, by the combined authority
of these separate communities, of the great objects at
which they were aiming; and although in theory
the Revolutionary Congress would have been en-
titled to assume and exercise the powers necessary
to accomplish the objects for which it was assembled,
we have seen that the people of the country, from a
jealous and unreasonable fear of all power, would
not permit this-to be done.
The consequences of this want of power were
inevitable. An army could not be kept in the field,
on a permanent footing, capable of holding the‘
enemy in check. The city of New York fell into
the hands of that enemy, the intermediate country
between that city and the city of Philadelphia was
overrun, and from the latter capital, the seat of the
general government, the Congress was obliged to fly
before the invading foe. _
384 THE FEDERAL CONSTITUTION. [BOOK n1
Taught by these events that a more efl'ective
union was necessary to the deliverance of the coun-
try from a foreign yoke, the States at length united
in the establishment of a government, the leading
purpose of which was mutual defence against ex-
ternal attacks, and called it a Confederation. But
its powers were so restricted, and its operations so
clogged and impeded by State jealousies and State
reservations of power, that it lacked entirely the
means of providing the sinews of war out of the
resources of the country, and was driven to foreign
loans and foreign arms for the means of bringing
that war to a close. A vast load of debt was thus
accumulated upon the country; and, as soon as
peace was established, it became apparent, that,
while the Confederation was a government with
the power of contracting debts, it was without the
power of paying them. This incapacity revealed the
existence of great objects of government, without
which the people of the several States could never
prosper, and which, in their separate capacities, the
States themselves could never accomplish.
Now it is as certain as history can make any thing,
that the whole period, from the commencement of
the war to the end of the Confederation, was a
period of great suffering to the people of the United
States. The trials and hardships of war were suc-
ceeded by the greater trials and hardships of a time
of peace, in which the whole nation experienced that
greatest of all social evils, the want of an eflicient
and competent government. There was a gloom
on. vrr] ‘ rrs rnarmns. 385
upon the minds of men, -— a sense of insecurity, —— a
_ consciousness that American society was not fulfil-
ling the ends of its being by the development of its
resources and the. discharge of its obligations, —-
which constituted altogether a discipline and a
chastisement of the whole nation, and which we
are not at liberty to regard as the mere accidents
of a world ungoverned by an overruling Power.
It was from the midst of that discipline that the
American people came to the high undertaking of
forming for themselves a constitution, by which to
work out the destiny of social life in this Western
World. Had they essayed their task after years of
prosperity, and after old institutions and old forms
of government had, upon the whole, yielded a fair
amount of success and happiness, they would have
wanted that power which comes only from failure
and disappointment, — the power to adapt the best
remedy to the deepest social defects, and to lay hold
on the future with the ‘strength given by the hard
teachings of the past.
Civil liberty, — American liberty, — that liberty
which resides in law, which is protected by great in-
stitutions and upheld by the machinery of a popular ,
government, -- is not simply the product of a desire,
or a determination, to be free. Such liberty comes,
if it comes at all, only after serious mistakes, —- after
frightful deficiencies have taught men that power '
must be lodged somewhere. It comes when a people
have learned, , by adversity and disappointment, that
a total negation of all authority, and a jealousy of all
von. 1. 49
386 THE FEDERAL CONSTITUTION. [Boox III.
restraint, can end only in leaving society without the
defences and securities which nothing but law can
raise for it. It comes ‘when the passions are ex- '
hausted, and the rivalries of opposing interests have
worn themselves out, in the vain endeavor to reach
what reason and justice and self-sacrifice alone can
procure. Then, and then only, is the intellect of a
nation sure to operate the fidelity and energy
of its native powers Then only does it grasp the
principles of freedom with the ability to incorpo-
rate them into the practical forms of a public ad-
ministration whose strength and energy shall give
them vitality, and prevent their diffusion into the
vagueness of mere abstractions, which return to so-
ciety the cold and mocking gift of a stone for its
craving demand of bread.
The Convention was a body of great and disinter-
ested men, competent, both morally and intellect-
ually to the work assigned them. High qualities
of character are requisite to the formation of a sys-
tem of government for a wide country with different
interests. Mere talent \ not do it. Intellectual
power and ingenuity alone cannot compass it.
There must be a moral completeness in the char-
acters of those who are to achieve such a work; for it
does not consist solely in devising schemes, or creat-
ing oflices, or parcelling out jurisdictions and powers.
There must be adaptation, adjustment of conflicting
interests, reconciliation of conflicting claims. There
must be the recognition and admission of great expe
CH. VIL] . ITS FRAMIERS. 387
dients, and the sacrifice, often, of darling objects of
ambition,'or of local policy, to the vast central pur-
pose of the greatest happiness of the greatest num-
ber. Hence it is, that, wherever this mighty work
is to be successfully accomplished, there must be a
high sense of justice; a power of concession; the
qualities of magnanimity and patriotism; and that
broad moral sanity of the intellect, which is farthest
removed from fanaticism, intolerance, or selfish ad-
hesion either to interest or to opinion.
These qualities were preéminently displayed by
many of the framers of the Constitution. There was
certainly a remarkable amount of talent and intel-
lectual power in that body. There were men in that
assembl , whom, for genius in statesmanship, and for
profound speculation in all that relates to the science
of government,_the world has never seen overmatched;
But the same men, who were most conspicuous for
these brilliant gifts and acquirements, for their pro-
found theories and their acute perception of princi-
ples, were happily the most marked, in that assembly,
for their comprehensive patriotism, their ustice, their
unselfishness and magnanimity. Take, for instance,
Hamilton. Where, among all the speculative phi-
losophers in political science whom the world has
seen, shall we find a man of greater acuteness of
intellect, or more capable of devising a scheme of
government which should appear theoretically per-
feet’! Yet Hamilton’s unquestionable genius for
political disquisition and construction was directed
and restrained by a noble generosity, and an unerr-
388 THE FEDERAL CONSTITUTION. [BOOK n1.
ing perception of the practicable and the expedient,
which enabled him to serve mankind without at-
tempting to force them to his own plans, and with-
out compelling them into his own views. Take
Washington, whose peculiar greatness was a moral
elevation, which secured the wisest and best use of
all his powers in either civil or military life. Take
Madison, who certainly lacked neither ability nor
1nclination for speculative inquiries, and who had a
mind capable of enforcing the application of what-
ever principles he espoused. Yet his calm good
sense, and the tact with which he could adapt theory
to practice, were no less among his prominent char-
acteristics. Take Franklin, who sometimes held ex-
treme opinions, and occasionally pushed his peculiar
fancies, springing from an excess of worldly wisdom,
to the utmost verge of truth, but whose intellect was
tempered, and whose whole character was softened,
by the wide and varied experience of a life that had
been commenced in obscurity, and was now closing
with the honors of a reputation that filled the East-
em as well as the Western hemisphere. Take Gou-
verneur Morris, who was ardent, impulsive, and not ~
disinclined to tenacity of opinion; but he rose above
all local and narrow objects, and embraced, in the
scope of his clear and penetrating vision, the hap-
piness and welfare of this whole continent.
It was a most fortunate thing for America, that
the Revolutionary age, with its hardships, its trials,
and its mistakes, had formed a body of statesmen
capable of framing for it a durable constitution. The
on. v11] ' rrs FBAMERS. " 389
leading persons in the Convention which formed
the Constitution had been actors, either in civil or
military life, in the scenes of the Revolution. In
these scenes their characters as American states-
men had been formed. When the condition of the
country had fully revealed the incapacity of its gov-
ernment to provide for its wants, these men were
naturally looked to, to construct a system which
should save it fi'om anarchy. And their great ca-
pacities, their high, disinterested purposes, their free-
dom from all fanaticism and illiberality, and their
earnest, unconquerable faith in the destiny of their
country, enabled them to found that government,
which now upholds and protects the whole fabric
of liberty in the States of this Union.
Of course no such assembly, in that or‘ in any other
age, in this or in any other country, could be called
together for such a purpose, without exhibiting a
great diversity of opinions, wishes, and views. The
very object for which they were assembled was of a
nature to develop, to the fullest extent, the most
conflicting opinions and the most opposite theories.
X That object was to devise a system which should
best secure the permanent liberty and happiness of a
vast country. What subject, in the whole range of
human thought and human endeavor, could be more
complex than this? What occasion, among all the
diversities of human affairs, could present a wider
field for honest differences of opinion, and for severe
conflicts of mind with mind’! Yet it should never
be forgotten, was‘ the merit of this assembly, that, col-
390 “ THE FEDERAL CONSTITUTION. [BOOK III.
lectively and individually, they were animated by the
most pure and exclusive devotion to the object for
which they were called together. It was this high
patriotism, this deep and never-ceasing consciousness
that the great experiment of republican liberty turned
on the 'result' of I their labors, as on the hazard‘ of a
die, that brought at last all conflicts of interest, all
diversities of opinion and feeling, into a focus of con-
ciliation, and unanimity. More than once the reader
will find them on the point of separating without
having accomplished any thing ; and more than once
he will see them recalled to their mighty task by the
eloquence of some ‘master-spirit, who knew how to
touch the key-note of that patriotic feeling, which
was never wholly lost in' the jarring discords of de-
bate and intellectual strife. For four months the
laborious effort went on. The serene and unchang-
ing presence of Washington presided overall. The
chivalrous sincerity and disinterestedness of ‘Hamil-
ton pervaded the assembly with all the power of his
fascinating manners. The flashing eloquence of
Gouverneur' Morris recalled the dangers of anarchy,
which must be accepted as the alternative of an
abortive experiment. The calm, clear, statesmanlike
views of Madison, the searching and profound expo-
sitions of King, the prudent influence of Franklin,
at length ruled the hour.
In examining ' their work, and in reading all that
is left to us of their discussions, we are to consider
the materials out of which they had to frame a sys-
tem of republican liberty, and the point‘ of view, in
Ca. v11; ITS FRAMERS. 391
reference to the whole subject, at which they stood.
We are to remember how little the world had then
seen of real liberty united with personal safety and
public security; and how entirely novel the under-
taking was, to form a complete system of govern-
ment, wholly independent 0; tradition, exactly de-
fined in a written constitution, to be created at once,
and at once set in motion, for the accomplishment
of the great objects of human liberty and social
progress. The examples of Greece and Rome, the
modern republics of Italy, the federal relations of
the Swiss Cantons, and the distant approach to re-
publicanism that had been seen in Holland, might
be resorted to for occasional and meagre illustrations
of a few general principles. But, unquestionably,
the country which, up to that moment, had exhib-
ited, by the working of its government, the great-
est amount of liberty combined with the greatest
public security, was England. England, however,
was a monarchy; and monarchy was the system
which they both desired, and were obliged, to avoid.
If it was within the range of human possibility to
establish a system of republican government, which
would fulfil its appropriate duties, over this vast and
rapidly extending country, that they felt, one and all,
to be their great task. On‘ the other hand, they _
knew that, if to that form ‘they could -‘ not succeed
in giving due stability and wisdom, it would be, in
the words of Hamilton, “disgraced and lost among
ourselves, disgraced and lost to mankind for ever}?1
1 Madison ’s Debates in the Federal Convention. Elliot, V. 244.
392 THE FEDERAL CONSTITUTION. [BOOK In.
Here was their‘ trial, —- the difficulty of all their
difficulties; and it was here that they exhibited a
wisdom, a courage, and a capacity, which have been
surpassed by no other body of lawgivers ever assem-
bled in the world.
Their country had, a few years before, passed
through a long and distressing war with its parent
state. The yoke of her domination had been thrown
off, and its removal was naturally followed by a
loosening of the bands of all authority, and an indis-
position to all new restraints. The American Colo-
nies had become independent States; and as the
spirit of liberty which pervaded them .made indi-
viduals impatient of control in their political rela-
tions, so the States reflected the same spirit in their
corporate ‘conduct, and looked with jealousy and dis-
trust upon all powers which were not to be exercised
by themselves. Yet it was clear that there were
powers and functions of government, which, for the
absolute safety of the country, must be withdrawn
from the States, and vested in some national head,
which should hold and exercise them in the name
of the whole, for the good of the whole. The great
question was, what that national head was to be;
and the great service performed by the framers of
the Constitution consisted in devising a system by
which a ‘national sovereignty might be endowed with
energy, dignity, and power, and the forms and sub-
stance of popular liberty still be preserved; a system
by which a supreme authority in all the matters
which it touched might be created, resting directly
on v11] WASHINGTON. 393
on the popular ‘will, and to be exercised, in all com-
ing time, through forms and institutions under which
that will should have a direct and perpetual and
perpetually renewed expression. This they accom-
plished. They accomplished it, too, without abolish-
ing the State governments, and without impairing a
single personal right which existed before they began
their work. They accomplished it without violence;
without the disruption of a single fibre in that whole
delicate tissue of which society is made up. No drop
of blood was shed to establish this government, the
work of their hands ; and no moment of interruption
occurred to the calm, even tenor of the pursuits of
men, —- the daily on-goings of society, in which the
stream of human life and happiness and progress
flows on in beneficence and peace.
First upon the list of those who had been called
together for this great purpose, we are to mention
him, without whose presence and countenance all
men felt that no attempt to meliorate the political
condition of the country could succeed.
I have already given an account of the proceedings
which led directly to the calling of the Convention;
‘ and have mentioned the interesting fact, that the
impulse to those proceedings was given at Mount
Vernon. Thither General Washington had retired,
at the close of the war, with no thought of ever
engaging again in public affairs. He supposed that
for him the scene was closed. “ The noontide of
life,” said he, in a letter to the Marchioness de La
von. 1. 50
394 THE FEDERAL CONSTITUTION. . [BOOK III.
fayette, “is now past, with Mrs. Washington and
myself; and all we have to do is to glide gently
down a stream which no human effort can as-
cend.” 1 i -
But wise and far-seeing as he was, he did not fore-
see how soon he was to be called from that grave
and sweet tranquillity. He was busy with the con-
cerns of his farm ; he was tasting the happiness of
home, from which he had been absent nine long
years; he was “ cultivating the affections of good
men, and practising the domestic virtues.” But it
was not in his nature to be inattentive to the con-
cerns of that country for whose ‘welfare he had la-
bored and suffered so much. He maintained an
active correspondence with several of the most emi-
nent and virtuous ,of his compatriots in different
parts of the Union; and in that correspondence,
running through the years 17 84, 17 85, and 1786,
there exists the most ample evidence of the down-_
ward tendency of things, and of the fears it ex- '
cited.
It had become evident to him that we never should -
establish a national character, nor be justly consid-
ered and respected by the nations of Europe, with-
out enlarging the powers of the federal govern
ment for the regulation of commerce. The obj ec-
tion which had been hitherto urged, that some States
might be more benefited than others by a commer-
cial regulation, seemed to him to apply to every mat
1 Washington’s Writings, IX. 166.
I
on. m. 1 wasnme'ron. 395
ter of general utility. “ We are,” said he, writing in
the summer of 1785, “ either a united people under
one head, and for federal purposes, or we are thirteen
independent sovereignties eternally counteracting each
other. If the former, whatever such a majority of
the States as the constitution points out conceives to
be for the benefit of the whole, should, in my humble
opinion, be submitted to by the minority. Let the
Southern States always be represented; let them act
more in union; let ' them declare freely and boldly
what is for the interest of, and what is prejudicial to,
their constituents; and there will, there must be, an
accommodating spirit. In the establishment of a
navigation act, this, in a particular manner, ought
and will doubtless be attended to. If the assent of
nine States, or, as some propose, of eleven, is neces-
sary to give validity to a commercial system, it in-
sures ‘this measure, or it cannot be obtained.
“ Wherein, then, lies the danger? But if your
fears are in danger of being realized, cannot certain
provisos in the ordinance guard against the evil"!
I see no‘ difficulty in this, if the Southern delegates
would give their attendance in Congress, and follow
the‘ example, if it should be set them, of adhering
together to counteract combination. I confess to
you candidly, that I can foresee no evil. greater: than
disunion; than those unreasonable jealousies (I say
unreasonable, because I ‘would have a ‘proper jealousy
always awake, and " the United ,iSt'ates' on- the- watch
to prevent individual States from infracting the con-
stitution with impunity) which are continually poi-_
396 THE FEDERAL CONSTITUTION. [BOOK 1n.
soning our minds and filling them with imaginary
evils for the prevention of real ones.” 1
But, while he desired to see the ninth article of
the, Confederation so amended and extended as to
give adequate commercial powers, he feared that it
would be of little avail to give them to the existing
Congress. The members of that body seemed to him
to be so much afraid of exerting the powers which
they already possessed, that they lost no opportunity
of surrendering them, or of referring their exercise
to the individual States. The speculative question,
whether foreign commerce is of any real advantage
to a country, he regarded as of no importance, con
vinced that the spirit of trade which pervaded these
States was not to be restrained. It behooved us,
therefore, to establish just principles of commercial
regulation, and this could not, any more than other
matters of national concern, be done by thirteen
heads difl'erently constructed and organized. The
necessity, in fact, of a controlling power was obvi-
ous, and why it should be withheld was, he declared,
beyond his comprehension. With these views, he
looked to the Convention at Annapolis as likely
to result in a plan which would give to the federal
government efficient powers for all commercial pur-
poses, although he regretted that more objects had
not been embraced in the project for the meeting.
The failure of this attempt to enlarge the com-
mercial powers of Congress, and the recommenda-
1 Washington’s Writings, IX. 121
\ Ga. v11] WASHINGTON. ' 397
tion of a general convention made by the Annapolis
commissioners, placed the country in an extremely
delicate situation. Washington thought, when this
recommendation was announced, that the people
were not then sufficiently misled to retract their
error, and entertained some doubt as to the conse-
quences of an attempt to revise and amend the Arti-
cles of Confederation. Something, however, must
be done, he said, or ‘the fabric which was certainly
tottering, would inevitably fall. “ I think,” said he,
“ often of our situation, and view it with concern.
From the high ground we stood upon, from the
plain path which invited our footsteps, to be so fall-
en, so lost, is really mortifying; but virtue, I fear,
has in a great degree taken its departure from our
land, and the want of a disposition to do justice is
the source of the national embarrassments; for,
whatever guise or color is given to them, this I
apprehend is the origin of the evils we now feel,
and probably shall labor under for some time yet.” 1
At this time the legislature of Virginia were act-
ing upon the subject of a delegation to the Federal
Convention, and a general wish was felt to place
Washington at the head of it. N o opposition had
been made in that body to the bill introduced for
the purpose of organizing and instructing such a
delegation, and it was thought advisable to give the
proceeding all the weight which could be derived
from a single State. To a private intimation of this
1 Washington’s Writings, IX. 167.
398 ' THE FEDERAL CONSTITUTION. [BOOK III.
desire of the legislature he returned a decided refu-
sal. Several obstacles appeared to him to put his
attendance out of the question. ‘ The principal rea-
_ son that he assigned was, that he had already de-
clined a re-election as President of the Society of the
Cincinnati, and had signified that he should not
attend their triennial general meeting, to be held in
Philadelphia in the same month with the Conven-
tion.1 He felt a great reluctance to do any thing
which might give offence to those patriotic men, the
OfilCBI’S of the army who had shared with him the
labors and dangers of the war. He had declined to
act longer with that Society, because the motives
and objects of its founders had‘ been misconceived
and misrepresented. Originally a charitable institu-
tion, it had come to be regarded as anti-republican
in its spirit and tendencies. Desiring, on the one
hand, to avoid the charge of deserting the officers
who had nobly supported him, and had always
treated him with the greatest attention and attach-
ment; and wishing, on the other hand, not to be
thought willing to give his support to an institution
generally believed incompatible with republican prin-
ciples, — he had excused .his attendance upon the
ground of the necessity of attending to his private
concerns. He had, in truth, ‘a great reluctance to
appear again upon any public theatre. His health
was‘ far from being firm; he felt the need and cov-
eted the blessing of retirement for the remainder of
1 Washington’s Writings, IX. 212.
0n. v11] WASHINGTON. ' 399
his days; and although some modifications of the
Society whose first President ' he had been, were
then allaying the ' j ealousies it had excited, he with-
drew from this, the last relation which had kept
him in a conspicuous public position.
But Washington at Mount Vernon, cultivating
his estate, and rarely leaving his own farms, was
as conspicuous to the country as if ‘he were still
placed in the most active and important public sta
tions. All eyes were turned to him in this emer-
gency; all thoughts were employed in considering
whether his - countenance ‘and his influence would
be given to this attempt to create a national gov-
ernment for the States whose liberties he had won.
And his friends represented to him, that the posture
of public affairs would prevent’ any criticism on the
situation in which the contemporary meeting of the
Cincinnati would place him, if he were to accept a
seat in the Convention. Still, when the ofiicial no-
tice of his appointment came, in December, he for-
mally declined, but was requested by the Governor
of the State’ to reserve, his decision.1 At this mo-
ment, the insurrection in Massachusetts broke upon
him like a thunderbolt. “' What, gracious God!”
he exclaimed, “is man, that there should be such
inconsistency and perfidiousness in his conduct! It
was but the other day that we were shedding our
blood to obtain the constitutions under which we
now live, - constitutions of our own choice and
1 Washington’s Writings, IX. 21‘9.
4.00 THE FEDERAL CONSTITUTION. [BOOK n1.
making,-- and now we are unsheathing the sword
to overturn them! The thing is so unaccountable,
that I hardly know how to realize it, or to per-
suade myself that I am not under the illusion of a
dream.”1
It was clear that, in case of civil discord and open
confusion extending through any considerable part
of the country, he would be obliged to take part onv
one side or the other, or to withdraw from the con-
tinent; and he, as well as other reflecting men, were
not without fears that the disturbances in the East-
ern States might extend throughout the Union. He
consulted with his friends in distant parts of the
country, and requested their advice, but still, as late
as February, hesitated whether he should attend the
Convention. In that month, he heard of the sup-
pression of the rebellion in Massachusetts; but the
developments which it had made of the state of so-.
ciety, the necessity which it had revealed for more
coercive power in the institutions of the country, and
the fear which it had excited that this want might
lead men’s minds to entertain the idea of monarchical
government, finally decided him to accept the ap-
pointment. The possibility that his absence at such
a uncture might be construed into what he called
“ a dereliction of republicanism,” seems to have influ-
enced his decision more than all other. reasons. Con-
gress, it is true, had now sanctioned the Convention,
and this had removed one obstacle which had weighed
_1 Washington’s Writings, IX. 2‘21.
Ox. vrr] WASHINGTON. 401
with him and with others. He entertained great
doubts as to the result of the experiment, but was
entirely satisfied that it ought to be tried.1
He left Mount Vernon in the latter part of April.
Public honors attended him everywhere on his route.
At Chester, fifteen miles from the city of Philadel-
phia, he was met by the Speaker of the Assembly of
Pennsylvania and several officers and gentlemen of
distinction, who accompanied him to Gray’s Ferry,
where a military escort was in waiting to receive
him and conduct him into the city. On his arrival,
he immediately paid a visit to Dr. Franklin, at that
time President of the State of Pennsylvania. 2
On the assembling of the Convention, Robert
Morris, by the instruction and in behalf of the
deputation of Pennsylvania, proposed that General
Washington should be elected President. John
Rutledge of South Carolina seconded this suggestion,
observing that the presence of General Washington
forbade any observations on the occasion which
might otherwise be proper.8 His opinions, at the
time when he took the chair of the Convention,
as to what was proper to be done, and what was
practicable, can only ‘be gathered from his corre-
spondence. He had formed some general views of
the principles on which a national government
should be framed, but he had not proceeded at all
1 Washington’s Writings, IX. 3 Madison’s Debates, Elliot, V.
236. 123. ,
2 Sparks’s Life of Washington,
p. 435.
von. 1 51
402 THE FEDERAL CONSTITUTION. [BOOK 111.
to the consideration of details. The first and most
important object he held to be, to establish such a
constitution as would secure and perpetuate the
republican form of government, by satisfying the
wants of the country and the time, and thus check-
ing all tendency to monarchical ideas. He had
come to- the Convention, as we have seen, in order
that the great experiment of self-government, on
which this country had entered at the Revolution,
might have a further trial beyond the hazards of
the hour. He knew - he had had occasion to
know—that the thought of a monarchy, as being
necessary to the safety of the country, had been to
some extent entertained. There had been those in
a former day, in the darkest period of the war, who
had proposed to him to assume a crown,-—men who
could possibly have bestowed it upon him, or have
assisted him to acquire it, - but who met a rebuke
which the nature of their proposition and his char-
acter should have taught them to expect. There
were those in that day who sincerely despaired of
republican liberty, and who had allowed themselves
to think that some of the royal families of Europe
might possibly furnish a sovereign fitted to govern
and control the turbulent elements of our political
condition. Washington understood the genius and
character of the people of this country so well, that
he held it to be impossible ever to establish that
form of government over them without the deepest
social convulsions. It was the form of the govern-
ment against which they had waged a seven years’
on. v11] WASHINGTON. 403
war; and it was certain that, apart from all ques-
tions of theoretical fitness or value, nothing but the
most frightfirl civil disorders, menacing the very ex
istence of society itself, could ever bring them again
under its sway.
He was also satisfied, that, whatever particular
system was to be adopted, it must be one that would
create a national sovereignty and give it the means
of coercion. What the nature of that coercion ought
to be, he had not considered; but that obedience to
the ordinances of a general government could not be
expected, unless it was clothed with the power of
enforcing them, all his experience during the war,
and all his observation since, had fully satisfied him.
He was convinced, also, that powers of a more exten-
sive nature, and which would comprehend other ob-
j ects, ought to be given to the general government;
that Congress should be so placed as to enable and
compel them to exert their constitutional authority
with a firm and steady hand, instead of ' referring
it back to the States. He proposed to adopt no
temporizing expedients, but to have the defects of
the Confederation thoroughly examined and dis-
played, and a radical cure provided, whether it were
accepted or not. A course of this kind, he said,
would stamp wisdom and dignity on their proceed- _
ings, and hold up a light which sooner or later
would have its influence.1
Persuaded that the primary cause of all the public
1 Washington ’s Writings, IX. 250.
404 THE FEDERAL CONSTITUTION. [BOOK III
disorders lay in the different State governments, and
in the tenacity with which they adhered to their
State powers, he saw that incompatibility in the laws
of different States and disrespect to the authority of
the Union must continue to render the situation of
the country weak, inefficient, and disgraceful. The
principle with which he entered the Convention,
and on which he acted throughout to the end, was,
“ with a due consideration of circumstances and
habits, to form such a government as will bear the
scrutinizing eye of criticism, and trust it to the good
sense and patriotism of the people to carry it into
effect.”1 . ,
The character of Washington as a statesman has,
perhaps, been somewhat undervalued, from two
causes; one of them being his military greatness,
and the other, the extraordinary balance of his mind,
which presented no brilliant and few salient qualities.
Undoubtedly, as a statesman he was not constructive,
like Hamilton, nor did he possess the same abundant
and ever-ready resources. He was eminently cau-
tions, but he was also eminently sagacious. He had
had a wide field of observation during the war, the
theatre of which, commencing in New England, had
extended through the Middle and into the Southern
States. He had, of course, been brought in contact
with the men and the institutions of all the States,
and had been concerned in their conflicts with the
federal authority, to a greater extent than any other
1 Washington’s Writings, IX. 258.
on. v11.] WASHINGTON. 405
public man of the time. This experience had not
prepared him—as the character of his mind had not
prepared him—to suggest plans or frame institutions
fitted to remedy the evils he had observed, and to
apply the principles which he had discovered. But
it had revealed to him the dangers and difficulties
of our situation, and had made him a national states- .
man, as incapable of confining his politics to the nar-
row scale of local interests and attachments, as he
had been of - confining his exertions to the object of
' achieving the liberties of a single state.
He would have. been fitly placed in the chair of
any deliberative assembly into which he might have
been called at any period of his life ; but it was pre-
eminently suitable that he should occupy that of the
Convention for forming the Constitution. He had no
talent for debate, and upon the floor of this‘ body he
would have exerted less influence, and have been far
less the central object. towards which the opinions
and views of the members were directed, than he was
in the high and becoming position to which he was i
now called.
CHAPTER VIII.
HAMILTON.
NEXT to the august name of the President should
be mentioned that great man who, as a statesman,
towered above all his compeers, even in that assem-
bly of great men, — Alexander Hamilton.
This eminent person is probably less well known
to the nation at the present day, than most of the
leading statesmen of the Revolution. There are
causes for this in his history. He never attained to
that high ofl‘ice which has conferred celebrity on in-
ferior men. The political party of which he was
one of the founders and one of the chief leaders
became unpopular with the great body of his coun-
trymen before it was extinct. His death, too, at the
early age of forty-seven, while it did not leave an
unfinished character, left an unfinished career, for
the contemplation of posterity. In this respect, his
fate was unlike that of nearly all his most distin-
guished contemporaries. Washington, Adams, Jef-
ferson, Madison, Jay, and in fact almost all the
prominent statesmen of the Revolution, died in old
age or in advanced life, and after the circle of their
public honors and usefulness had been completed-
on. vnL] HAMILTON. _ 407
Hamilton was cut off at a period of life when he
may be said to have had above a third of its best
activity yet before him: and this is doubtless one
cause why so little is popularly known, by the pres-
ent generation, of him who was by far the greatest
statesman of the Revolutionary age.
It is known, indeed, traditionally, what a thrill of
horror - what a sharp, terrible pang -— ran through
the nation, proving the comprehension by the entire
people of what was lost, when Aaron Burr took from
his country and the world that important life. In
the most distant extremities of the Union, men felt
that one of the first intellects of the age had been
extinguished. __K From the utmost activity and public
consideration, in the fulness of his strength and use-
fulness, the bullet of , a duellist had taken the first
statesman in America ; —— a man who, while he had
not been without errors, and while his life had not
been without mistakes, had served his country, ‘from
his boyhood to that hour of her bitter bereavement,
with an elevation of purpose and a force of intellect
never exceeded in her history, and‘ which had caused
Washington to lean upon him and to trust him, as
he trusted and leaned upon no other man, from first
to last. The death of such a man, under such cir-
cumstances, cast a deep gloom over the face of so-
ciety; and Hamilton was mourned by his contempo- "
raries with a sorrow founded on a just appreciation
of his‘ ‘greatness, and of what they owed to his intel-
lect and character. But by the generations that have
succeeded- he has been less intimately known than
408 THE FEDERAL CONSTITUTION.
[Boox III.
_w
i’ of thought.
many of his compatriots, who lived longer, and
reached stations which he never occupied.
He was born in the island of Nevis, in the
year 1757; his mother being a native of that isl-
and, and his father being a Scotchman. At the
age of fifteen, after having been for three years in
the counting-house of a merchant at Santa Cruz, he
was sent to New York to complete his education,
and was entered as a private student in King’s (now
Columbia) College. At the age of seventeen, his
political life was already begun; for at that age,
and while still at college, he wrote and published
a series of essays on the Rights of the Colonies,
which attracted the attention of the whole country.
These essays appeared in 1774;, in answer to cer-
tain pamphlets on the Tory side of the contro-
versy; and in them Hamilton reviewed and vindi-
cated the whole of the proceedings of the first Con-
tinental Congress. There are displayed in these
papers a power of reasoning and sarcasm, a knowl-
edge of the principles of government and of the
English Constitution, and a grasp of the merits of
the whole controversy, that would have done honor
to any man at any age, and in a youth of seventeen
are wonderful. To say that they evince precocity of
intellect, gives no idea of their main characteristics.
{They show great maturity ;- a more remarkable
maturity than has ever been exhibited by any other
person, at so early an age, in the same department
They produced, too, a great effect. '
Their influence in bringing the public mind to the
on. vnr] HAMELTON. 409
point of resistance to the mother country, was impor-
tant and extensive.
Before he was nineteen years old, Hamilton en-
tered the army as a captain of artillery; and when
only twenty, in 1777, he was selected by Washing-
ton to be one of his aides-de-camp, with the 'rank of
lieutenant-colonel. In this capacity he served until
17 82, when he was elected a member of Congress
from the State of New York, and took his seat. In
1786, he was chosen a member of the legislature of
‘New York. In 17 87, he was appointed as a dele-
gate to the Convention which framed the Constitu-
tion. In the following year, when only thirty years
old, he published, with Madison and Jay, the cele-
brated essays called “The Federalist,” in favor of the
form of government proposed by the Convention.
In 1788, he became a member of the State Conven-
tion of New York, called to ratify the Constitution,
and it was chiefly through his influence that it was
adopted in that State. In 1789, he took office in
Washington’s, administration, as Secretary of the
Treasury. In 1795, he retired to the practice of the
law in the city of New York. In 1798, at Wash-
ington’s absolute demand, he was appointed second
in command of the provisional army, raised under
the elder Adams’s administration, to repel an appre-
hended invasion of the French. On the death of
\Vashington, in 1799, he succeeded to the chief
command. When the army was disbanded, he
again returned to the bar, and practised with great
reputation until the year 1804, when his life was
voL I. 52
410 ' THE FEDERAL CONSTITUTION. [BOOK III.
terminated in a duel with Colonel Burr, concerning
which the sole blame that has ever been imputed to
Hamilton is, that he. felt constrained to accept the
challenge. '
His great characteristic was his profound insight
into the principles of government. The sagacity
with which he comprehended all systems, and the
thorough knowledge he possessed of the working
of all the freer institutions of ancient and modern
times, united with a singular capacity to make the
experience of the past bear on the actual state of
society, rendered him one of the most useful states-
men that America has known. Whatever in the
science of government had already been ascertained;
whatever the civil condition of mankind in any age
had made practicable or proved abortive; whatever
experience had demonstrated; whatever the passions,
the interests, or the wants of men had made inevita-
ble, -— he seemed to know intuitively. But he was
no theorist. His powers were all eminently prac-
tical. He detected the vice of a theory instantly,
and shattered it with a single blow.
His knowledge, too, of. the existing state of his
own and of other countries was not less remarkable
than his knowledge of the past. He understood
America as thoroughly as the wisest of his contem-g
poraries, and he comprehended Europe more com-
pletely than any other man of that age upon this
continent.1
1 While these sheets are pass- writes to me as follows: “ One .
ing through the press, Mr. Ticknor day in January, 1819, talking with
CH, V111,] HAMILTON. 4:11
To these characteristics he added a clear logical
power in statement, a vigorous reasoning, a perfect
frankness and moral courage, and a lofty disdain of
all the arts of a demagogue. His eloquence was
distinguished for correctness of language and dis-
tinctness of utterance, as well as for grace and
dignity. .
In theory, he leaned decidedly to the constitution
of England, as the best form of civil polity for the
attainment of the great objects of government. But
he was not, on that account, less a lover of liberty
than those who favored more popular and democratic
institutions. His writings will be searched in vain
for any disregard of the natural rights of mankind,
or any insensibility to the blessings of freedom. It
was because he believed that those blessings can be
best secured by governments in which a change of
rulers is not of frequent occurrence, that he had so
high an estimate of the English Constitution. At
the period of the Convention, he held that the chief
want of this country was a government into which
the element of a permanent tenure of office could be
largely infused; and he read in the Convention —- as
Prince Talleyrand, in Paris, about
his visit to America,‘ he expressed
the highest admiration of Mr. Ham-
ilton, saying, among other things,
that he had known nearly all the
marked men of his time, but that
he had never known one, on the
whole, equal to him. I was much
surprised and gratified with the re-
mark ; but still, feeling that, as an
American, I was in some sort a
party concerned by patriotism in
the compliment,v I answered with
a little reserve, that the great mil-
itary commanders‘ and the great
statesmen of Europe had dealt with
larger- masses and wider interests
than he had. ‘ Mais, Monsieur,’
the Prince instantly replied, ‘ Ham-
ilton avoit devz'né l’Europe.’ ”
' 412 THE FEDERAL CONSTITUTION. [BOOK III.
an illustration of his views, but without pressing it —-
a plan by which the Executive and the Senate could
hold their oflices during good behavior. But the
idea, which has sometimes been promulgated, that
he desired the establishment of a monarchical gov-
ernment in this country, is without foundation. At
no period of his life did he regard that experiment
as either practicable or desirable.
Hamilton’s relation to the Constitution is peculiar.
He had less direct agency in framing its chief pro-
visions than many of the other principal persons who
sat in the Convention; and some of its provisions
were not wholly acceptable to him when framed.
But the history, which has been detailed in the pre-
vious chapters of this work, of the progress of federal
ideas, and of the efforts to introduce and establish
principles tending to consolidate the Union, has been
largely occupied with the recital of his opinions,
exertions, and prevalent influence. Beginning with
the year 1'7 80, when he was only three-and-twenty
years of age, and when he sketched the outline of a
national government strongly resembling the one
which the Constitution long afterwards established;
passing through the term of his service in Congress,
when his admirable expositions of the revenue sys-
tem, the commercial power, and the ratio of contri-
bution, may justly be said to have saved the Union
from dissolution; and coming down to the time
when he did so much to bring about, first, the meet-
ing at Annapolis, and then the general and final
Convention of all the States; -—-the whole period
on. VH1] HAMILTON. 413
is marked by his wisdom and filled with his power.
He did more than any other public man of the time
to lessen the force of State attachments, to create a
national feeling, and to lead the public mind to a
comprehension of the necessity for an efficient na—
tional sovereignty.
Indeed, he was the first to perceive and to develop '
the idea of a real union of the people of the United
States. To him, more than to any one else, is to be
attributed the conviction that the people of the dif-
ferent States were competent to establish a general
government by their own direct action; and that this
mode of proceeding ought to be considered" within
the contemplation of the State legislatures, when
they appointed delegates to a convention for the
revision and amendment of the existing system.1
The age in which he lived, and the very extraor-
dinary early maturity of his character, naturally re-
'mind us of that remarkable person who was two
years his junior, and who became prime-minister
of England at the age of twenty-four. The young-
er Pitt entered public; life with almost every possi-
ble advantage. Inheriting “ a great and celebrated
name,” 2 educated expressly for the career of a states-
man, and introduced into the House of Commons at
a moment when power) was just ready to drop into
the hands of any man capable of wielding it, he had
only to prove. himself a brilliant and powerful de-
bater, in order to become the ruler of an empire,
1 See his first speech in the Con- 2 Burke, ‘speaking of Lord Chat-
_Vention, as reported by Mr. Madison. . ham.
414 THE FEDERAL CONSTITUTION. [BOOK III.
whose constitution had been settled for ages, and
was necessarily administered by the successful lead-
ers of regular parties in its legislative body. That
he was a most eminent parliamentary orator, a con-
summate tactician and leader of party, a minister of '
singular energy, and a statesman of a very high order
of mind and character, at an age when most men
are scarcely beginning to give proofs of what they
may become, -— all this History has deliberately and
finally recorded. What place it may assign to him
among the statesmen by whose lives and actions
England and the world have been materially and per-
manently benefited is ‘not yet settled, and it is not to
the present purpose. to consider.
The theatre in which Hamilton appeared, lived,
and acted, was one of a character so totally different,
that the comparison necessarily ends with the con-
trast which it immediately suggests. Like. Pitt, in-
deed, he seems to have been born a statesman, and
to have had no such youth as ordinarily precedes the
manhood of the mind. But, in the American colo-
nies, no political system of things existed that was
fitted to train him for a career of usefulness and
honor; and yet, when the years of his boyhood were
hardly ended, he sprang forth into the troubled af-
fairs of the time, with the full stature of a matured
and well-furnished statesman. He, in truth, showed
himself to be already the man that was wanted.
Every thing was in an unsettled and anxious state;
-— a state of change and transition. There was no
regular, efiicient government. It was all but a state
on. vrn.] HAMILTON. 415
of civil war, and the more clear-sighted saw that this
great disaster was coming. He was compelled, there-
fore, to mark out for himself, step by step, beginning
in 1774, a system of political principles which should
serve, not to administer existing institutions with
wisdom and beneficence, but 4:0 create institutions
able to unite a people divided into thirteen indepen-
dent sovereignties; to give them the attitude and
capacity of an independent nation; and then to
carry them on, with constantly increasing prosperity
and power, to their just place in the affairs of the
world. It was a great work, but Mr. Hamilton
was equal to it. He- was by nature, by careful
study, and by still more careful, anxious, and earnest
thought, eminently fitted to detect and develop those
resources of power and progress, which, in the dark
condition of society that attends and follows an ex
hausting period of revolution, lie hidden, like gener-
ous seeds, until some strong hand disencumbers them
of the soil with which they had been oppressed, and
gives them opportunity to germinate and bear golden
fruit. At the age of three-and-twenty he had already
formed well-defined, profound, and comprehensive
opinions on the ‘situation and wants of these States.
He had clearly discerned the practicability of form-
ing a confederated government, and adapting it to
their peculiar condition, resources, and exigencies.
He had wrought out for himself a political system,
far in advance of the conceptions of his contempo'
raries, and one which, in the hands of those who
most opposed him in life, became, when he was laid
416 THE FEDERAL CONSTITUTION. [BOOK III.
in a premature grave, the basis on which this gov-
ernment was consolidated; on which, to the pres-
ent day, it has been administered; and on which
alone it can safely rest in that future, which seems so
to stretch out its unending glories before us.
Mr. Hamilton, therefore, I conceive, proved him-
self early to be a statesman of greater talent and
power than the celebrated English minister whose
youthful success was in the eyes of the world so
much more brilliant, and whose early death was no
less disheartening; for none can doubt, that to build
up a, free and firm state out of a condition of political
chaos, and to give it a government capable of devel
oping the resources of its soil and people, and of
insuring to it prosperity, power, and permanence, is
a greater work than to administer with energy and
success -— even in periods of severe trial -“-— the con-
stitution of an empire whose principles and modes of
action have been settled for centuries.
Hamilton was one of those statesmen who trust
to the eflicacy of the press for the advancement and
inculcation of correct principles of public policy, and
who desire to accomplish important‘ results mainly
through the action of an enlightened public opinion.
That he had faith in the intelligence and honesty of
his countrymen, is proved by the numerous writings
which he constantly addressed to their reason and
good sense, in the shape of essays or letters, from the
beginning to the end of his career, upon subjects on
which it was important that they should act with
wisdom and principle.
on. VH1.) HAMILTON. 417
His own opinions, although held with great firm-
ness, were also held in subordination to what was
practicable. It was the rare felicity of his tempera-
ment, to be able to accept a less good than his prin-
ciples might have led him to insist upon, and to labor
for it, when nothing better could be obtained, with
as much patriotic energy and zeal as if it had been
the best result of his own views. The Constitution
itself remains, in this particular, a monument of the
disinterestedness of his character. He thought it
had great defects. But he accepted it, as the best‘
government that the wisdom of the Convention could
frame, and the best that the nation would adopt.
In this spirit, as soon as it was promulgated for the
acceptance of the country, he came forward and_
placed himself in the foremost rank of its advocates,
making himself, for all future time, one of the chief
of its authoritative expounders. He was very ably
assisted in the Federalist by Madison and Jay; but
it was from him that the Federalist derived the
weight and the power which commanded the careful
attention of the country, and carried conviction to
the great body of intelligent men in all parts of
the Union. The extraordinary forecast with which
its luminous discussions anticipated the operation
of the new institutions, and its profound elucidation‘
of their principles, gave birth to American constitu-
tional law, which was thus placed at once above the
field of arbitrary constructions and in the domain of
legal truth. They made it a science; and so long
as the Constitution shall exist, they will continue
von. 1. 53
418
[Boox III.
THE FEDERAL CONSTITUTION.
to be resorted to as the most important source of
contemporaneous interpretation which the
the country afford.1
annals of
In the two paramount characters of statesman and
1 The current editions of the
Federalist are taken from an edi-
tion published at Washington in
1818, by Jacob Gideon, in which
the numbers written by Mr. Madi-
son purport to have been corrected
by himself. There had been three
editions previous to this. The first
edition was published in 1788, in
two small volumes, by J. & A.
M‘Lean, 41 Hanover Square, New
York, under the following title:
“ ‘The Federalist: a Collection of
' Essays written in Favor of the New
Constitution, as agreed upon by the
Federal Convention, September 17,
1787.” The first volume was is-
sued before the last of the essays
were written, and the second fol-
lowed it, as soon as the series was
completed. The authentic text of
the work is to be found in this
edition; two of ‘ the authors were
inthe city of New York at the
time it was printed, and probably
superintended it. It was reissued
from the same type, in 1789, by
John Tiebout, 358 Pearl Street,
New York. A second edition was
published in 1802, at New York,
in two volumes, containing also
“ Pacificus on the Proclamation of
Neutrality, and the Constitution,
with its Amendments.” A third
edition was published in 1810, by
Williams & Whiting, New York.
I have seen copies of the first and
second editions only, in the li-
brary of Peter Force, Esq., of
Washington, editor of the“ Amer-
ican. Archives.” There are some
discrepancies between the text of
the first edition and that of 1818,
from which the current editions are
taken. By whom or on what au-
thority the alterations were made,
I have not been able to ascertain,
nor have I learned when, or why,
or how far Mr. Madison may have
corrected or altered the papers which
he wrote. Such of the changes as
I have examined do not materially
affect the sense; but it is very de-
sirable that the true text of the
Federalist should be reproduced.
That text exists in the first edi-
tion, which was issued while the
Constitution was before the peo-
ple of the United States for their
ratification; and as the Federalist
was an argument addressed to the
people in favor of the adoption of
the Constitution, the exact text of
‘that argument, as it was read and
acted upon, ought to be restored,
without regard to the reasons which
may have led any of the writers, or
any one else, to alter it. I know
of no evidence that Colonel Hamil-
ton ever made or sanctioned the
alteration of a word. After the
text of the Constitution itself, there
is scarcely any thing the preserva-
tion of which is more important
than the text of the Federalist as
it was first published.
on. VIIL] _ HAMILTON. 419
j urist, in the comprehensive nature of his patriotism,
in his fieedom from sectional prejudices, in his ser-
vices to the Union, and in the kind and magnitude
of his intellect, posterity will recognize a resemblance
to him whom America still mourns with the fresh-
ness of a recent grief, and who has been to the Con-
stitution, in the age that has succeeded, what Hamil-
“ton was in the age that witnessed its formation and
establishment. Without the one of these illustrious
men,- the Constitution probably would never have
existed; without the other, it might have become
a mere record of past institutions, whose history had
been glorious until. faction and civil discord had
turned it into a record of mournful recollections.
The following sentences, written by Hamilton soon
after the adjournment of the Convention, contain a
clew to all his conduct in support of the plan of gov-
ernment which that body recommended: — “ It may
be in me. a defect of political fortitude, but I ac-
knowledge that I cannot feel an equal tranquillity
with those who affect to treat the dangers of a longer
continuance in our present situation as imaginary.
A nation without a national government is an awful
spectacle. The establishment of a constitution, in a
time of profound peace, by the voluntary consent of
a whole people, is a prodigy, ‘to the completion of
which I look forward with trembling anxiety.”
CHAPTER IX.
MADISON.
FROM Hamilton ‘we naturally turn to his asso-
ciate in the Federalist, — James Madison, afterwards
fourth President of the United States, — whose faith-
ful and laborious record has preserved to us the de-
bates of the Convention.
'Mr. Madison was thirty-six years old when he
entered that assembly. His previous life had fitted
him to play a conspicuous and important part in its
proceedings. He was born in 1751, of a good fami-
ily, in Orange County, Virginia, and was ‘educated at
Princeton College in New Jersey, where he took the
degree of Bachelor of Arts in 177 2. He returned to
Virginia in the spring of 177 3, and commenced the
usual studies preparatory to an admission to the bar;
but the disputes between the Colonies and the mother
country soon drew him into public life. In 1776,
he became a member of the State Convention which
formed the first Constitution of Virginia. He was
afterwards a member of the legislature and of the
' Council of the State, until he was appointed one of
/
cs. 1.x] MADISON. 421
its delegates in Congress, where he took his seat in
March, 1780.1
From this time to the assembling of the Federal
Convention in 1787, his services to the Union were
of the most important character. He entered Con-
gress without a national reputation, but with na-
tional views. Indeed, it may be said of him, that he
came from his native Commonwealth, -- “ mother of
great men,” —- grown to the full proportions of a
continental statesman. At the moment when he
appeared upon the larger theatre of the national in-
terests, the Articles of Confederation had not been
finally ratified by all the States. Maryland had in-
sisted, as a necessary condition of her accession to
the new Confederacy, that the great States should ,
surrender to the Union their immense claims to the .
unoccupied territories of the West; Virginia had
remonstrated against this demand; and the whole
scheme of the Confederation had thus been long
encountered by an apparently insurmountable ob-
stacle.2 The generous example of New York,- whose
Western claims were ceded to the United States in
the month preceding Mr. Madison’s entry into Con-
gress, had furnished to the advocates of the Union
the means for a powerful appeal to both sides of
this critical and delicate controversy; but it required
great tact, discretion, and address to make that ap-
peal effectual, by inducing Maryland to trust to the
1 Article “ Madison ” in the Tucker of the University of Vir-
Penny Encylopaedia, written for ginia.
that work by Professor George 2 Ante, pp. 131-141.
422 THE FEDERAL CONSTITUTION. [BOOK III.
influence of this example upon Virginia, and by
inducing Virginia to make a cession that would be
satisfactory to Maryland. In this high effort of
statesmanship — a domestic diplomacy full‘ of diffi-
culties ——Mr. Madison took part. He did not pre-
pare the very skilful report which, while it aimed to
produce cessions of their territorial claims by the
larger States, appealed to Maryland to anticipate the
result ;1 but the vast concession by which Virginia
yielded the Northwestern Territory to the Union was
afterwards brought about mainly by his exertions.
In 1782, he united with Hamilton in the cele-
brated report prepared by the latter upon the refusal
of the State of Rhode Island to comply with the rec
‘ ommendations of Congress for a duty on imports.2
In 1783, he was named first upon a committee
with Ellsworth and Hamilton, to prepare an Address
to the States, urging the adoption of the revenue sys-
tem which has been described in a previous chapter,
and the Address was written by The great
ability and high tone of this paper gave it a striking
effect. The object of this plan of revenue was, as
we have seen, to fund the national debts, and to
make a sufiicient provision for their discharge. I
have already assigned to it the merit of having pre-
served the Union from the premature decay that had
begun to destroy its vitality ;"‘ and it may here be
added, that the statesman whose pen could produce
1 It was drawn by James Duane 3 Ante, pp. 1'77 -179.
of New York. 4 Ante, pp. 176, 186, 188.
9 Ante, pp. 174, 206 - 208.
on. 1x, MADISON. - 423
the comprehensive and powerful appeal by which it
was pressed upon the States, was certain to‘ become
one of the chief founders of the Constitution of ~
which the plan itself was the forerunner. It set-
tled the fact, that a national unity in dealing with
the debts of the Revolution was a‘ necessary to ren-
der its fruits a full reward for the blood, the toils,
the cares, and the calamities which‘ had purchased
them.” ' _
Such were Mr. Madison’s most important services
in the Congress of the Confederation ;' but they are
‘ of , course not the whole. A member so able and of
such broad and national ‘views must have had a
large agency in every important transaction; and
accordingly the Journals, during the whole period
‘of his service, bear ample testimony to his activity,
his influence, and his zeal. ' ,
At the close of the war, he retired to Virginia,
and during the three following years was a member
of the legislature, still occupied, however, with the
interests of the Union. His attention was specially
directed to the subject of enlarging the powers of
Congress over ‘the foreign trade of the country. It
is a striking fact, and a proof of the comprehensive
character ' of Mr. Madison’s, statesmanship, that Vir-
ginia, a State not largely commercial, should have
taken so prominent a part‘ in the efforts to give the
control of ‘commerce, to the general government; --
an object which has justly been regarded as the cor-
ner-ston'e of the Constitution. It arose partly from
the accident of her geographical position, which
424 THE FEDERAL CONSTITUTION. [BOOK IIL
made it necessary for her to aim at something like
uniformity of regulation with the other States which
bordered upon her contiguous waters; but it is also
to be attributed to the enlightened liberality and
forecast of her great inen, who saw in the imme-
diate necessities of their own State the occasion for
a measure of general advantage to the country.
Mr. Madison’s first effort was, to procure a decla- '1
ration by the legislature of Virginia of the necessity
for a uniform regulation of the commerce of the
States byv the federal authority. For this purpose,
he introduced into the legislature'a series of propo- -
sitions, intended to instriict the delegates of the State
in’ Congress to propose a. recommendation to the
States to confer upon Congress power to regulate
their trade and to collect a revenue from such regu-
lation. This measure, as we have seen, encountered
the opposition of those who preferred a temporary to
a perpetual and irrevocable grant of such power;
and the propositions were so much changed in the
Committee of _ the Whole, that they were no longer
acceptable to their original friends. The steps which
finally led the legislature of Virginia to recommend
a general convention of all the States have been de-
tailed in a previous chapter of this work; but it is
due to Mr. Madison’s connection with this move-
ment, that they should here be recapitulated with
reference to his personal agency in the various trans-
actions. ,
A conflict of jurisdiction between the two States
of Virginia and Maryland over the waters which
cs IX.] MADISON. 425
separated them had, in the spring of 1785, led to
the appointment of commissioners on the part of
each State, who met at Alexandria in March. These
commissioners, of whom Mr. Madison was one, made
a visit to General Washington at Mount Vernon, and
it was there proposed that the two States, whose
conflicting regulations, ever since the peace, had pro-
duced great inconvenience to their merchants, and
had been a constant source of irritation, should be
recommended by the commissioners to make a com-
pact for the regulation of their impost and foreign
trade. Mr. Madison has left no written claim, that I
am aware of, to the authorship of this suggestion, but
there exists evidence of his having claimed it in con-
versation.1 The recommendation was made by the
commissioners, and their report was adopted by both
States; - by’ Virginia unconditionally, and by Mary-
1 In preparing the note to page
342 (ante), I refrained from at-
tributing to General Washington
the suggestion of the enlarged
plan recommended by the Alex-
andria commissioners, although it
was concerted at his house, because
there is no evidence, beyond that
fact, of his having proposed this
enlargement of the plan. Since
that note was printed, I have learned
in a direct manner, that Mr. Madi-
son had stated to the Hon. Edward
Coles, formerly his private secre-
tary and afterwards Governor of
Illinois, that be (Mr. Madison) first
suggested it. In assigning, there-
fore, to the different individuals
who took a prominent part in the
VOL. 1. 54
measures which led to the forma~
tion of the Constitution, the various
suggestions which had an important
influence upon the course of events,
-— a curious and interesting inqui-
ry, - I consider that to Mr. Madi-
son belongs the credit of having
originated that series of Virginia
measures which brought about the
meeting of commissioners of all
the States at Annapolis, for the
purpose of enlarging the powers
of Congress over commerce ; while
Hamilton is to be considered the
author of the plan in which the Con-
vention at Annapolis was merged,
for an entire revision of the federal
system and the formation of a new
constitution.
426 THE FEDERAL CONSTITUTION.
[Book III.
land with the qualification that the States of Dela-
ware and Pennsylvania should be invited to unite in
the plan.
After the commercialv propositions introduced by
Mr. Madison had lain on the table for some time as
a report from the Committee of the Whole, the re-
port of the Alexandria commissioners was received
and ratified by the legislature of Virginia. Although
the friends of those propositions were gradually in-
creasing, Mr. Madison had no expectation that a
majority could be obtained in favor‘ of a grant of
commercial powers to Congress for a longer term
than twenty-five years. ' The idea of a general con-
vention of delegates from all the States, which had
been for some time familiar to Mr. Madison’s mind,
then suggested itself to him, and he prepared and
caused to be introduced the resolution which led to
the meeting that afterwards took place at Annapolis,
for the purpose of digesting and reporting the requi-
site augmentation of the powers of Congress over
trade.1 His resolution, he says, being, on the last
day of the session, “ the alternative of adjourning
without any effort for the crisis in the affairs of the.
Union, obtained a general vote; less, however, with
some of its friends, from a confidence in the success
of the experiment, than from a hope that it might
I The resolve was introduced by
Mr. Tyler, father of the Ex-Presi-
dent, a. person of much influence in
the legislature, and who had never
been in Congress. Although pre-
pared by Mr. Madison, it was not
offered by him, for the reason that
a. great jealousy was felt against
those who had been in the federal
councils, and because he was known
to wish for an enlargement of the
powers of Congress. See Mad-
ison’s Introduction to the Debates
in the Convention, Elliot, V. 113.
Cn. IX.] MADISON. _ 427
prove a step to a more comprehensive and adequate
provision for the wants of the Confederacy.”1
Mr. Madison was appointed one of the commis-
sioners of Virginia to the meeting at Annapolis.
There he met Hamilton, who came meditating noth
ing less than the general revision of the whole sys-
tem of the Federal Union, and the formation of a
new government. Mr. Madison, although less con-
fident than the great statesman of New York as to
the measures that ought to be taken, had yet for
several years been equally ‘convinced that the perpe-
tuity and efficacy of the existing system could not be
confided in. He therefore concurred readily in the
report recommending a' general convention of all the
States; and when that report was received in the
legislature of Virginia, he became the author of the
celebrated act which passed that body on the 4th of
December,/1’7 86, and under which the first appoint-
ment of delegates to the Convention was made. It
was also chiefly through his exertions, combined
with the influence of Governor Randolph, that Gen-
eral Washington’s name was placed at the head of
the delegation, and that he was induced to ‘accept
the appointment. Mr. Madison himself was the
fourth member of the delegation.
In the ‘Convention, his labors must have been far _
more arduous than those of any other member of the
' body. He took. a leading partin the debates, speak-
ing upon every important question; and in addition to
1_ Ibid., p. 114.
428 THE FEDERAL CONSTITUTION. [BOOK 111.
all the usual duties devolving upon a person of so
much ability and influence, he preserved a full and
careful record of the discussions with his own hand.
Impressed, as he says, with the magnitude of the
trust confided to the Convention, and foreseeing the
interest that must attach to an authentic exhibition
of the objects, the opinions, and the reasonings from
which the new system of government was to receive
its peculiar structure and organization, he devoted
the hours of the night succeeding the session of each
day to ‘the preparation of the record with which his
name is imperishably associated. “ Nor was I,” he
adds, “ unaware of the value of such a contribution
to the fund of materials for the history of a Constitu-
tion on which would be staked the happiness of a
people, great even in its infancy, and possibly the
cause of liberty throughout the world.”1
As a statesman, he is to be ranked, by a long in-
terval, after Hamilton; but he was a man of emi-
nent talent, always free from local prejudices, and
sincerely studious of the welfare of the whole coun-
try. His perception of the principles essential to the
continuance of the Union and to the safety and pros-
perity of the States, was accurate and clear. His
studies had made him familiar with the examples of
_ ancient and modern liberty, and he had carefully
reflected upon the nature of the government neces-
sary to be established. He was one of the few per-‘
sons who carried into the Convention a conviction
1 Introduction to the Debates, Elliot, V 121.
cn. IX.] MADISON. 429
that an amendment of the Articles of Confederation
would not answer the exigencies of the time. He
regarded an individual independence of the States as
irreconcilable with an aggregate sovereignty of the
whole, but admitted that a consolidation of the States
into a simple republic was both impracticable and
inexpedient. He sought, therefore, for some middle
ground, which would at once support a due suprem-
acy of the national authority, and leave the local
authorities in force for their subordinate objects.
For this purpose, he conceived that a system of
representation which would operate without the in-
tervention of the States was indispensable; that the
national government should be armed with a positive
and complete authority in all cases where a uniform-
ity of measures ‘was necessary, as in matters of trade,
and that ‘it should have a negative upon the legisla-
tive acts of the States, as the crown of England had
before the Revolution. He thought, also, that the
national supremacy should be extended to the udi-
ciary, and foresaw the necessity for national tribu-
nals, in cases in which foreigners and citizens of
different States might be concerned, and also for the
exercise of the admiralty urisdiction. He consid-
ered two branches of the legislature, with distinct.
origins, as indispensable; recognized the necessity
for a national executive, and favored a council of re-
vision of the laws, in which should be included the
great ministerial oflicers of the government. He saw
also, that, to give the new system its proper energy,
it would be necessary to have it ratified by the au-
430 THE FEDERAL CONSTITUTION. [BOOK In
thority of the people, and not merely by that of the
legislatures.‘ ' l ‘
Such was the outline of the project which he had
formed‘ before the assembling of the Convention.
How far his views were modified by the discus-
sions in which he took part will be seen hereafter.
Asa speaker in a deliberative assembly, the suc-
cessive schools in which he had been trained had
given him a habit of self-possession which placed all
his resources at his command. “ Never wandering
from his subject,” says Mr. Jefferson, “into vain dec-
lamation, but ‘pursuing it closely, in language pure,
classical, and copious, soothing always the feelings
of his adversaries by civilities and softness of expres-‘r
sion, he rose to the eminent station which he held in
the great national Convention of 1787; and in that
of Virginia which followed, he sustained the new
Constitution in all its parts, bearing off the palm
against the logic of George Mason and the fervid
declamation of Mr. Henry.‘ With these consummate
powers were united a pure and spotless virtue, which
no calumny has ever attempted to sully.”2
Mr. Madison’s greatest service in the national Con-
vention consisted in the answers which he made to
the objections of a want of power in that assembly
to frame and propose a new constitution, and his
paper on this subject in the Federalist is one of the
ablest in the series.
As this work is confined to the period which ter-
1 Letter to Edmund Randolph, .2 J efiferson’s Autobiography
dated New York, April 8th, 1787 ‘Works, I. 41, edition of 1853.
/
f
,-
er.“-
CH. 1x4 MADISON.
431
minated with the adoption. of the Constitution, it is
not necessary to examine those points on which the
two principal writers of - the Federalist became sepa-
rated from each other, when the administration of
the ‘government led to the formation of the‘ first par-
ties known in our political history. These topics it
may become my duty to discuss hereafter, should I
pursue the constitutional history of the country
through the administration of Washington. At
present, it may be recorded of both, that, upon al-
most all the great questions that arose before the
Constitution was finally adopted, the single purpose
of establishing a system as efficient as the theory
of a purely republican government would admit,
was the object of their efforts; and that, although
they may have differed with regard to the details and
methods through which this object was to be reached,
the purpose at which they both aimed places them
in the same rank at the head of those ‘founders of
our government, towards whom the gratitude of the
succeeding generations of America must be for ever
directed.
I 1 The following extract from an
autograph letter of Madison,
hitherto unpublished; which lies
before me, written after the ‘adop-
tion of ' the Constitution, shows
very clearly that he ‘concurred
with Hamilton in the opinion‘ that
the strongest government consistent
with the republican form was neces-
sary in the situation of this country.
The letter is dated at Philadelphia, .
December 10th, 1788, and is ad-
' dressed to Philip Mazzei, at Paris.
“ Your book, as I prophesied,
sells nowhere but in Virginia;
a very few- copies only have been
called for, either‘ in N ew' York or
in this city. a The language‘ in
which it is written will account
for it. ‘In order to attract notice,
I translated the panegyric in‘ the
French Mercure, and had it made
part of the advertisement. I did
not translate the comment on the
Federal Constitution, as you wished,
because I could not spare the time.
432 THE FEDERAL
CONSTITUTION. [BOOK III.
as well as because I did not ap-
prove the tendency of it. [Some of
your remarks prove that Horace’s
‘ Cwlum non animum mutant quz'
'' trans mare currunt’ does not hold
without exception. In Europe, the
abuses of power continually before
your eyes have given a bias to your
political reflections, which you did
not feel in equal degree when you
left America, and which you would
feel less of, if you had remained in
America. Philosophers on the old
continent, in their zeal against tyr-
anny would rush into anarchy; as
the horrors of superstition drive
them into atheism. Here, perhaps,
the inconveniences of relaxed gov-
ernment have reconciled too many
to the opposite extreme. If your
plan of a single legislature, as in
Pennsylvania, &c., were adopted, I
sincerely believe that it would prove
the most deadly blow ever given to
republicanism. Were I an enemy
to that form, I would preach the
very doctrines which are preached
by the enemies to the government
proposed for the United States.
Many of our best citizens are dis-
gusted with the injustice, instabil-
ity, and folly which characterize
the American administrations. The
number has for some time been rap-
idly increasing. Were the evils to
be much longer protracted, the dis-
gust would seize citizens of every
description. ,
“ It is of infinite importance to
the cause of liberty to ascertain the
degree of it which will consist with ‘
the purposes of society. An error
on one side may be as fatal as on
the other. Hitherto, the error in
the United States has lam in the
excess. ’
“ All the States, except North
Carolina and Rhode Island, have
ratified the proposed Constitution;
Seven of them have appointed their
Senators, of whom those of Vir-
ginia, R. H. Lee and Colonel Gray-
son, alone are among the opponents
of the system. The appointments
of Maryland, South Carolina, and
Georgia will pretty certainly be of
the same stamp with the majority.
The House of Representatives is
yet to be chosen, everywhere ex—
cept in Pennsylvania. From the
partial returns received, the elec-
tion will wear a federal aspect un
less the event in one or two par-
ticular counties should contradict
every calculation. If the eight
members from this State be on the
side of the Constitution, it will in
a manner secure the majority in
that branch of the Congress also.
The object of the anti-Federalists
is, to bring about another general
convention, which would either
agree on nothing, as would be
agreeable to some, and throw every
thing into confusion, or expunge
from the Constitution parts which
are held by its friends to be essen-
tial to it. The latter party are
willing to gratify their opponents
with every supplemental provision
for general rights, but insist that
this can be better done in the mode
provided for amendments.
“ I remain, with great sincerity,
your friend and servant,
“JAs. MADISON, JR.”
CHAPTER X.
FBANnrN.
THE Convention was graced and honored by the
venerable presence of Dr. Franklin, then President
of the State of Pennsylvania, and in his eighty-sec-
ond year. He had returned from Europe only two
years before, followed by the admiration and homage
of the social, literary, and scientific circles of France;
laden with honors, which he were with a plain and
shrewd simplicity; and in the full possession of that
predominating common-sense, which had given him,
through a long life, a widely extended reputation of
a peculiar character. The oldest of the public men
of America, his political life had embraced a period
of more than half a century, extending back to a
time when independence had not entered into the
dreams of the boldest among the ‘inhabitants of the
English Colonies. For more than twenty years be-
fore the Revolution commenced, he had held a high
and responsible office under the crown, the tration of which affected the intercourse and connec-
tion of , all the Colonies; 1 and more than twenty years
0
1 In 1753,116 was appointed Dep- ish Colonies, from which place he
uty Postmaster-General for thé Brit- was dismissed in 1774, while in
vet. I. 55
434 TEE FEDERAL CONSTITUTION. [BOOK 111.
before the first Continenfal Congress was assembled,
he had projected a plan of union for the thirteen
Provinces which then embraced the whole of the
British dominions in North America.1 Nearly as
long, also, before the Declaration of Independence,
he had become the resident agent in England of sev-
eral of the Colonies, in which post he continued, with
a short, interval, through all the controversies that
preceded the Revolution, and until reconciliation
with the mother country had become impossible.2
Returning in 1775, he was immediately appointed
by the people of Pennsylvania one of their delegates
in the second Continental Congress. In the follow-
ing year, he was sent as commissioner to France,
where he remained until he was recalled, and was
succeeded by Mr. Jefferson, in 17 85.
With the fame of his two residences abroad - the
one before and the other after the country had sev-
ered its connection with England —— the whole land
was filled. The first of them, commencing with an
employment for settling the miserable disputes be-
tween the people and the Proprietaries of Pennsyl-
England, on account of the part he
had taken in American affairs.
1 In 1754. See an account of
this plan, ante, p. 8.
9 He first went to England in
1757, as agent of the Pennsylvania
Assembly to settle their diflicul-
ties with the Proprietaries, where
he remainqd until 1762. In 1764,
he was reappointed provincial agent
in England for Pennsylvania; in
1768, he received a similar appoint-
ment from Georgia; in 1769, he
was chosen agent for New Jersey;
and in 1770, he became agent for
Massachusetts. His whole resi-
dence in England, from 1757 to
1775, embraced a period of sixteen
years, two years having been passed
at home. He resided in France
about nine years, from 1776 to
1785.
on. x] ‘ rnANxmN. 435
Vania, was extended to an agency for the three other
Colonies of Georgia, New Jersey, and Massachusetts,
which finally led him to take part in the, affairs
of all British America, and made him virtually the
representative of American interests. His brief ser-
vice in Congress, during which he signed the Decla-
ration of Independence, was followed by his appoint-
ment as Commissioner at the Court of Versailles,
which he made the most important sphere that has
ever been filled by any American in Europe, and
in which that treaty of alliance with France was
negotiated which enabled the United States to be-
come in fact an independent nation.
His long career of public service; his eminence
as a philosopher, a philanthropist, and a thinker;
the general reverence of the people for his character; .
his peculiar power of illustrating and enforcing his
opinions by a method at once original, simple, and
attractive, — made his presence of the first impor-
tance in an assembly which was to embrace the
highest wisdom and virtue of America.
It is chiefly, however, by the countenance he
gave to the effort to frame a Constitution, that
his services as a member of this body are to be
estimated. His mind was at all times ingenious,
rather than large and constructive; and his great
age, while it had scarcely at all impaired his natural
powers, had confirmed him in some opinions which ,
must certainly be regarded as mistaken. His desire,
for example, to have the legislature of the United
States consist of. a single body, for the sake ‘of sim-
l
~ 436 ‘THE FEDERAL CONSTITUTION. [BOOK III.
plicity, and his idea that the chief executive magis-
trate ought to receive no salary for his official ser-
vices, for the sake of purity, were both singular and
unsound. . I ' -
But there were points upon which he displayed ex-
traordinary wisdom; penetration, and forecast. ‘ When
an objection to a proportionate representation in Con-
gress was started, upon the ground that it would en-
able the larger States to swallow up the smaller, he
declared that, as the great States could propose to
themselves no advantage by absorbing their inferior
neighbors, he did not believe they would , attempt it.
His recollection carried himv back to the early part
of the century, when the union‘ between England
and Scotland was proposed, and when the Scotch
patriots were alarmed by the idea that they should
be ruined by the superiority of England, unless they
had an equal number of members in Parliament;
and yet, notwithstanding the great inferiority in their
representation as established by the act of union, he
declared, that, down to that day, he did not recollect
that any thing had been done in the Parliament of
Great Britain to the prejudice of Scotland.1
Although he spoke but seldom in the Conven-
tion, his influence was very great, and it was al-
ways exerted to cool the ardor of debate, and to
check the tendency of such discussions to result in
1 He added, with his usual quiet I believe, that the North Britons
humor, that “ whoever looks over enjoy their full proportion ofemolu-
the lists of public officers, civil and ment.” Madison, Elliot, V. 179.
military, of that nation, will find,
on. x,‘ FRANKLIN. ' , 437
irreconcilable differences. His great age, his vener-
able and benignant aspect, his wide reputation, his
acute and sagacious philosophy, —which was always
the embodiment of good sense,— would have given
him a controlling weight in a much more turbulent
and a far less intelligent assembly. When - after
debates in which the powerful intellects around him
had exhausted the subject, and both sides remained
firm in opinions diametrically opposed - he rose and
reminded them that they were sent to consult and not
_ to contend, and that declarations of a fixed opinion
and a determination never to change it neither en-
lightehed nor convinced those who listened to them,
his authority was felt by men who could have anni-
hilated any mere logical argument that might have
proceeded firom him in his best days.
Dr. Franklin was one. of those who entertained
seribus objections to the Constitution, but he sac-
rificed them before the Convention was dissolved.
Believing a general government to be necessary for
the American States; holding that every form of
government. might be made a blessing to the people.
by a good administration; and foreseeing that the .
Constitution would be well administered for a long
course of years, and could only end in despotism "
when‘the people should have become so corrupted as
to be incapable of any other than a despotic ‘govern-
ment, he gladly embraced a system which he was
astonished to find approaching so near to perfection.
I “ The opinions I have had of its errors,” said he,
“ I sacrifice to- ‘the public good. Within these walls
438 THE FEDERAL CONSTITUTION. [BOOK m.
they were born, and here they shall die. If every
one of us, in returning to our constituents, were to
report the objections he has had to it, and endeavor
to gain partisans in support of them, we might pre-
vent its being generally received, and thereby lose all
the salutary effects and great advantages, resulting
naturally in our favor, among foreign nations as well
as among ourselves, from our real or apparent una-
nimity. Much of the strength and efliciency of any
government in procuring and securing happiness to
the people depends on opinion, — on the general
opinion of the goodness of the government, as well
as of the wisdom and integrity of its governors. I
hope, therefore, that for our‘ own sakes as a part of
the people, and for the sake of posterity, we shall act
heartily and unanimously in recommending this Con-
stitution (approved by Congress and confirmed by
the conventions) wherever our influence may extend,
and turn our future thoughts and endeavors to the
means of having it well administered.”1
And thus, with a cheerful confidencein the future,
sustaining the hopes of all about him, and hailing
- every omen that foretold the rising gloriesv of his
country,2 this wise old man passed out from the
‘assembly, when its anxious labors had been brought
1- Madison, Elliot, V. 554.
2 Mr. Madison has recorded the
following anecdote at the end of
the Debates, as an incident worthy
of being known to posterity.
“ Whilst the last members were
signing, Dr. Franklin, looking to-
wards the President’s chair, at the
back of which a rising sun happened
to be painted, observed to a few
members near him, that painters
had often found it difficult, in their
art, to distinguish a rising from a
setting sun. "I have,’ said he
Ca. x.) FRANKLIN. _ 439

to a close with a nearer approach to unanimity than
had ever been expected. He lived, borne down by
infirmities, ' ‘
“ To draw his breath in pain ”
for nearly three years after the Convention was dis-
solved; but it was to see the Constitution established,
to witness the growing strength of the new govern-
ment, and to contemplate the opening successes and
the beneficent promise of Washington’s administra-
tion. Writing to the first President in 1'7 89, he
said: “ For my own personal ease, I should have
died two years ago; but though those years have
been spent in excruciating pain, I am pleased that I
have lived them, since they have brought me to see
our present situation.”1
‘often and often, inthe course of was rising or setting; but now, at
the session, and the vicissitude of length, I have the happiness to
my hopes and fears as to its issue, know that it is a rising, and not a
looked at that behind the President, setting sun.’ ”
without being able to tell whether it 1 Sparks’s Life of Franklin, 528
CHAPTER XI.
' GOUVERNEUR MORRIS.
THIs brilliant, energetic, and patriotic statesman was
born in the Province of New York, at Morrisania, —-
- the seat of his family for several generations, --in the
year 1752. He was educated for the bar; but in
177 5, at the age of three-and-twenty, he was elected
a member of the Provincial Congress of New York,
in which he became atv once distinguished. When
the recommendation of the Continental Congress to
the Colonies, to organize new forms of government,
was received, he took a leading place in. the de-
bates on the formation of a new constitution for the
State; and when the subject of independence was
brought forward, in order that the delegates of
New York in the Continental Congress might be ‘
clothed with sufficient, authority, he delivered a
speech of great power, of, which fragments only '
are p'eserved, but which evidently embraced the
most comprehensive and statesmanlike views of
the situation and future prospects ‘of this country.
Speaking of the. capacity of America to sustain
herself without a connection with Great Britain,
he said: —-
t
on. x1] ’ cou'vnnnnun MORRIS. 441
“ Thus, Sir, by means of that great gulf which rolls
its waves between Europe and America; by the situa-
tion of these Colonies, always adapted to hinder or
interrupt all communication between the two; by the
productions of our soil, which the Almighty has filled
with every necessary to make us a great maritime
people; by the extent of our coasts and those im-
mense rivers, which serve at once to open a commu-
nication with our interior country, and to teach us
the arts of navigation; by those vast fisheries, which,
affording an inexhaustible mine of wealth and» a
cradle of industry, breed hardy mariners, inured to
danger and fatigue; finally, by the unconquerable
spirit of freemen, deeply interested in the preserva-
tion of a government which‘ secures to them the
blessings of liberty and exalts the dignity of man-
kind; -by all these, I expect a full and lasting
defence against any and every part of the earth;
' while the great advantages to be derived from a
friendly intercourse with this country almost render
the means of defence unnecessary, from the great
.improbability of being attacked. . So far, peace seems
to smile upon our future independence. But that
this fair goddess will equally crown our union with
Great Britain, my fondest hopes cannot lead me to
suppose. Every war which she is engaged must
necessarily involve us in its detestable consequences;
whilst, weak and unarmed, we have no shield of
defence, unless such as she may please (for her own
sake) to afford, or else the pity of her enemies and
von. 1. 56 .
442 THE FEDERAL consrrrurron. [BOOK 1n.
the insignificance of slaves beneath the attention of
a generous foe.”1
In 1778, Mr. Morris was chosen a delegate to the
Continental Congress from the State of New York.
His reputation for talent, zeal, activity, and singular
capacity for business, had preceded him. On the very
day when he presented his credentials, he was placed
upon a committee to proceed to Valley Forge, to con-
fer with General Washington on the measures neces-
sary for a reorganization of the army. He remained
in Congress for two years, discharging, with great abil-
ity and high patriotism, the most important functions,
and subjected all the while to the most ust popular
suspicions of his fidelity to the cause of the country.
Few of all the prominent men of the Revolution
sacrificed or suffered more than Gouverneur Morris.
The fact that all the other members of his family
adhered to the royalist side, and an ineffectual effort
which he once made to visit his mother, at his ances-
tral home, then within the British lines, gave his
enemies the means of inflicting upon him a deep
injury in the popular estimation. He was not re-
elected to Congress; but short as his career in that
body was, it was filled with services inferior to those
of none of his associates.
1 Sparks’s Life of G. Morris, I.
103. The florid and declamatory
style of this speech belongs to the
period and to the youth of the speak-
er. The breadth of its views and its
vigor of thought display the char-
acteristics which belonged to him
, through life. He had a prophetic
insight of the future resources of
this country, and made many re-
markable predictions of its great-
ness. His biographer has claimed
for him the suggestion of the plan
for uniting the waters of Lake Erie
with those of the Hudson, and upon
very strong evidence.
on. XL] GOUVERNEUR MORRIS. .443
Before he left Congress, in February, 177 9, he
made — as chairman of a committee to whom cer-
tain communications from the French minister in the
United States were referred — a report which became
the basis of the. peace that afterwards followed; and
when the principles on which the peace was to be
negotiated had been settled, he drew the instructions
to the commissioners, and they were unanimously
adopted without change.1 .
On leaving Congress, Mr. Morris took up his resi-
dence in Philadelphia, and resumed the practice of
the law. His remarkable talent for business, how-
ever, and his intimate knowledge of financial sub- I
jects, led to his appointment as Assistant Financier
with Robert Morris. In this capacity, he suggested
the idea of the decimal notation, which was after-
wards made the basis of the coinage of the United
States.2
1 See the Report and the debates
thereon, Secret Journals, II. 132 et
seq.
2 In January, 1782, the Finan-
cier made a report, which was ofli-
cially signed by him, but which
Mr. Jefferson says was prepared
‘by his Assistant, Gouverneur Mor-
ris. It embraced an elaborate state-
ment of the denominations and com-
parative value of the foreign coins
in circulation in the different States,
and proposed the adoption of a mon-
ey unit and a system of decimal no-
tation for a new coinage. The unit
suggested was such a portion of
pure silver as would be a common
measure of the penny of every State,
without leaving a fraction. This
common divisor Mr. Morris found
to boom l440th of a dollar, or one
1600th of the crown sterling. The
value of a dollar was therefore to be
expressed by 1,440 units, and that
of a crowii by 1,600, each unit con-
taining aquarter of a grain of fine
silver. Nothing, however, was
done, until1’784, when Mr. Jeffer-
son, being in Congress, took up
the subject. He approved of Mr.
Morris’s general views, and his
method of decimal notation, but
objected to his unit as too minute
for ordinary use. Mr.- efi'erson
proposed the dollar as the unit of
account and payment, and that its
444 THE FEDERAL CONSTITUTION. [BOOK III.
Having been appointed one of the delegates from
the State of Pennsylvania to the Convention for
forming the Constitution of the United States, Mr.
Morris attended the whole session, with the excep-
tion of a few days in June, and entered into its
business with his accustomed ardor. To remove
impediments, obviate objections, and conciliate jar-
ring opinions, he exerted all his fine faculties, and
employed his remarkable eloquence. But he is
chiefly to be remembered, in connection with the
Constitution, as the author of its text. To his pen
belongs the merit of that clear and finished style, —
that lttct'dus ordo,—— that admirable perspicuity, which
have so much diminished the labors and hazards of
interpretation for all future ages.1
The character of Gouverneur Morris was balanced ‘
by many admirable qualities. His ‘ self-possession
was so complete in all circumstances, that he is said
. to have declared, that he
never knew the sensation,
divisions and subdivisions should
be in the decimal ratio. This plan
was adopted in August, 1785, and
in 1786 the names and characters
of the coins were determined. The
ordinance establishing the coinage
was passed August 8, 1786, and
that establishing the mint, on the
16th of October, in the same year.
(J eiferson’s Autobiography, Works,
I.‘ 52-54. Life of Gouverneur
Morris, I. 273. Journals of Con-
gress, X1. 179, 254.)
1 The materials for the final
preparation of the instrument, con-
sisting of a reported draft in detail
and the various resolutions which
had been adopted, were placed in
the hands of a committee of revis-
ion, of which Dr. William Samuel
Johnson, of Connecticut, was the
chairman; the other members be-
ing Messrs. Hamilton, Gpuverneur
Morris, Madison, and King. The
chairman committed the work to
Mr. Morris, and the Constitution,
as adopted, was prepared by him.
(See~Mr. ‘Madison’s letter to Mr.
Sparks, Life of Gouverneur Mor-
ris, I. 284. Madison’s Debates,
Elliot, V. 530.)
O
on. xr] eouvnnnnun MORRIS. 445
of fear, inferiority, or embarrassment, in his inter-
course with men. Undoubtedly, his self-confidence
amounted sometimes to boldness and presumption;
but we have it on no less an authority than Mr.
Madison’s, that he added to it a candid surrender of
his opinions, when the lights of discussion satisfied
him that they had been too hastily formed.1 He
was a man of genius, fond of society and pleasure,
but capable of prodigious exertion and industry, and
possessed of great powers of eloquence.
He loved to indulge in speculations on the future .
condition of the country, and often foresaw results
which gave him patience under the existing state
of things. In 1784., writing to‘ Mr. Jay, at a time
when the clashing commercial regulations of the
States seemed about to put an end to the Union,
he said: “ True it is, that the general government
wants energy, and equally true it is, that this want
will eventually be supplied. A national spirit is‘ the
natural result of national existence, and although
some of the present generation may, feel colonial
oppositions of opinion, yet this generation will die
away and give place to a race of Americans.” 2
. He- was himself, at all times, an American, and
never more "so thanv during the discussions of the
Convention.~ Appealing to his colleagues to extend
their. views beyond the narrow limits of place
whence they derived their political origin, he de-
clared, with his characteristic energy and point, that
1 Life of Morris, 1. 284-286. 2 Ibid. 266.
446 THE FEDERAL CONSTITUTION. [BOOK III. ‘
State attachments and State importance had been
the bane of this country. “ We cannot annihilate,”
said he, “ but we may perhaps take out the teeth of
the serpents.”1
In truth, the circumstances of his life had pre-
vented him from feeling those strong local attach-
ments which he considered the great impediments to
the national prosperity. Born in one State, he had
then resided for seven years in another, from whose
inhabitants he had received at least equal marks of
confidence with those that had been bestowed upon
him by the people among’ whom he first entered
public life.
In his political opinions, he probably went farther
in opposition to democratic tendencies than any other
person in the Convention. He was in favor of = an
executive during good behavior, of a Senate for life, ' i
and of a freehold qualification for electors of repre-
sentatives. In several other respects, the Constitu-
tion, as actually framed, was distasteful to him; but,
like many of the other eminent men ‘who doubted
its theoretical or practical wisdom, he determined at
once to abide by the voice of the majority. He saw
that, as soon as the plan should go forth, all other
considerations ought to be laid aside, and the great
question ought to be, Shall there be a national gov-
ernment or not? He acknowledged that the alterna-
tives were, the adoption of the “system proposed, or a
general anarchy; — and before this single and fear-
1 Madison, Elliot, V. 276, 277.
on. x11 GOUVERNEUR MORRIS. 447
ful issue all questions of individual opinion or pref-
erence sank into insignificance.1 It is a proof both
of his sincerity and of the estimate in which his abili-
ties were held, that, when this great issue was pre-
sented to the people, he was invited by Hamilton to
become one of the writers of the Federalist.2 It is
not known why he did not embrace the opportunity
of‘ connecting himself with that celebrated publica-
tion; but his correspondence shows that it was from
no want of interest in the result. He took pains
to give to Washington his decided testimony, from
personal observation, that the idea of his refusing
the Presidency would, if it prevailed, be fatal to the
Constitution in many parts of the country.3
Mr. Morris filled two important public stations,
after the adoption of the Constitution. He was the
first Minister to France appointed by General Wash-
ington, and filled that office from May, 17 92, until
August, 1794. In February, 1800, he was chosen
by the legislature of New York to supply a vacancy
in the Senate of the United States, which he filled
until the 4th of March, 1803. He died at Mor-
risania on the 6th of November, 1818. “Let us
forget party,” said he, ,“ and think of our country,
which embraces all parties”?
‘1 Madison, Elliot, v. 556. 3 1bid.288-290.
' 2 Life, 1. 287. 4 Ibid. 517.
CHAPTER XII.
KING.
RUFUs KING, celebrated as a jurist, a statesman,
an orator, and a diplomatist, was sent to the Con-
vention by the Commonwealth of Massachusetts.
Born in her District of Maine, in 17 55, and gradu-
ated at Harvard College in 17 7 7, he came very early
into public life, and was rarely out of it until his
death, which occurred in 1827, in the seventy-third
year of his age.
His first public service was in the year 177 8, as a
volunteer in the expedition against the British in
Rhode Island, in which he acted as aide-de-camp to
General Sullivan. In 1780, he commenced the prac-
tice of the law in the town of N ewburyport, and was
soon after elected from that town to the legislature
of the State. There he distinguished himself by a
very powerful speech in favor of granting to the '
general government the five per cent. impost recom-
mended by Congress as part of the revenue system
I Oflvss.
‘He was soon after elected a member of Congress
- from Massachusetts, in which body he took his seat
on the 6th of December, 1784, and served until the
CH. m1 KING. ' ' 4.49
close of the year 1787. He was thus a member
both of the Convention for forming the Constitution
and of the Congress which sanctioned and referred it
to the people. He was also a member of the Con-
vention of Massachusetts, in which the Constitution
was ratified by that State.
Mr. King did not favor the plan of a convention
for the revision of the federal system, until after the
meeting at Annapolis had been held; and, indeed,
he did not concur in its expediency, until after the
troubles in Massachusetts had made its necessity ap-
parent. In 1'7 85, as we have seen, he" joined with
the other members of the Massachusetts delegation
in opposing it.1 In the autumn of 17 86, when the
report of the Annapolis Convention was before Con-
gress, he expressed the opinion, in person, to the
legislature of Massachusetts, that the Articles of
Confederation could not be altered, except by the
consent of Congress and the confirmation of the sev-
eral legislatures; that Congress ought, in the first
instance, to make the examination of the federal sys-
tem, since, if it was done by a ‘convention, no legis-
lature would have a right to confirm it; and further,
that, Congress should reject the report of a conven-
tion, the most fatal consequences might follow. For
these reasons, he at that time held Congress to be
the proper body to propose alterations? _
1 Ante, p.‘ 339, note. account of the stateof national at
2 Mr. King being in Boston in fairs. For an abstract of his ad-
October, 1786, was desired ‘by the dress, see Boston Magazine for the
legislature to attend and give an year 1786, p. 406.
von. 1. 57
450 THE FEDERAL CONSTITUTION. [BOOK IH.
At the moment when he was making this address
to the legislature, the disturbances in Massachusetts
were fast gathering into that formidable insurrection
which two months afterwards burst forth in the inte-
rior of ' the State.1 Mr. King spoke of these commo-
tions in grave and pointed terms. He told the legis-
lature that Congress viewed them with deep anxiety;
that every member of the national councils felt his
life, liberty, and property to be involved in the issue
of their decisions; that the United States would not
be inactive on such an occasion, for, if the lawful
authority of the State were to be prostrated, every
other government would eventually be swept away.
He entreated them to remember, that, if the gov-
ernment were in a minority in the State, they
had a majority of every State in the Union to
join them.2
He returned to Congress immediately. But there
he found that the reliance which he had placed upon
the ability of the Confederation to interfere and sup-
press such a rebellion was not well founded. The
power was even doubted, or denied, by some of the
best statesmen in that body; and although the in-
surrection was happily put down by the government
of the State itself, the fearful exposure of a want
of external power adequate to such emergencies pro-
duced in Mr. King, as in many others,_a great change
of views, bothlas to the necessity for a radical change
of the national government and as to the mode of
1 Ante, p. 266 et seq. 9 Ibid
on. 2111.] KING. 451
effecting it. His vote, in February, was given to
the proposition introduced by the delegation of New
York for a national convention; and when that
failed, be united with his colleague, Mr. Dane, in
bringing forward the resolution by which the Con-
vention was finally sanctioned in Congress.1
The Convention having been sanctioned by Con-
gress, no man was more ready than King to
maintain its power to deliberate on and propose any
alterations that Congress could have suggested in the
Federal Articles. He held that the proposing of an
entire change in the mode of suffrage in the national
legislature, from a representation of the States alone
to a representation of the people, was within the scope
of their powers, and consistent with the Union; for if
that Union, on the one hand, involved the idea of a
confederation, on the other hand it contained also
the idea of consolidation, from which a national char-
acter resulted to the individuals of whom the States
were composed. He doubted the practicability of
annihilating the State governments, but thought that
much of their power ought to be taken from them.2
He declared, ‘that, when every man in America might
be secured in his rights, by a government founded on
equality of representation, he could not sacrifice such
a substantial good to the phantom of State sover-
eignty. If this illusion were to continue to prevail,
he should be prepared for any event, rather than sit
down under a government founded on a vicious ' prin-.
.1, .1
1 Journals, XH. 15-17. 2 Madison, Elliot, v. 212‘, 213.
452 THE FEDERAL coNsTITuTIoN. [BOOK III
ciple of representation, and one that must be as
short-lived as it would be unjust.1
There is one feature of the Constitution with
which the name of Mr. King should always be con-
nected, and of which he may be said, indeed, to have
been the author. Towards the close of the session,
he introduced the prohibition on the States to pass
laws‘ affecting the obligation of contracts. It ap-
pears that the Ordinance for the government of the
Northwestern Territory, which had been passed by
Congress about a month previous, contained a simi-
lar prohibition on the States to be formed out of
that territory. That any of the jurists who were
concerned in the framing of either instrument fore-
saw at the moment all the great future importance
and extensive operation of this wise and effective
provision, we are not authorized to affirm. But a
clause which has enabled the supreme national udi-
cature to exercise a vast, direct, and uniform influ-
ence on the security of property throughout all the
States of this Confederacy, should be permanently
connected with the names of its authors.2
1 Madison, Elliot, V. 266. lating to contracts was in these
2 The Ordinance for the govern-
ment of the Northwestern Terri-
tory was drawn by Nathan Dane
of Massachusetts. It was reported
in Congress July 11th, 1787, and
was passed July 13th. The com-
mittee by whom it was reported
were Messrs. Carrington and R.
H. Lee of Virginia, Kearney of
Delaware, Smith of New York,
and Mr. Dane. The clause re-
words: “ And in the just preser-
vation of rights and property, it is
understood and declared, that no
law ought ever to be made or
have force in the said territory,
that shall in any manner whatever
interfere with or affect private
contracts or engagements, bond
fide and without fraud previously
formed.” On the 28th of August,
Mr. King moved in the Conven-
on. XIL] KING. 453
Mr. King was but little past the age of thirty
when the Constitution was adopted. After that
event, he went to reside in the city of New York,
and entered upon the career of distinction which
filled up the residue of his life, as a Senator in Con-
gress, and as Minister to England. No formal biog-
raphy of him has yet appeared; but when that
duty shall have been discharged by those- to whom
it appropriately belongs, there will, be added to our
literature an account of a man of the most eminent
abilities and the purest patriotism, whose influence
and agency in the great transactions which attended
the origin and first operations of the government
were of the utmost importance.
tion to insert the same clause in which it now stands in the Com
the Constitution; but it was op- stitution. (Madison, Elliot, V.
posed, and was not finally adopted 485; Journal of the Convention,
until September 14, when it was Elliot, I. 311.)
incorporated in the phra'seology in
CHAPTER XIII.
CHARLES CoTEswoRTn PINCKNEY.
CHARLEs CoTEswoRTH PINCKNEY of‘ South Caro-
lina, the eldest son of a chief justice of that Colony,
distinguished both as a soldier and a civilian, was
educated in England, and read law at the Temple.
He returned to his native province in 1769, and
commenced the practice of his profession; which,
like many of the young American barristers of that
day, he was obliged to abandon for the duties of the
camp, when the troubles of" the Revolution began.
He became colonel of the first regiment of the Caro-
lina infantry, and served under General Moultrie in
the defence of the fort on Sullivan’s ’Island. This
gallant resistance having freed the South, for a time,
from invasion, Pinckney repaired to the Northern
army, and was made aide-de-camp to General Wash-
ington; in which capacity he served at the battles
of the Brandywine and Germantown. He afterwards
acquired great distinction in the defence of South
Carolina against the British under Sir Henry Clinton.
On the return of peace, he devoted himself to the
law, in which he became eminent. He belonged to
that school of public men, who had been trained in
on. x111.) CHARLES cornswon'rn PINCKNEY. ~ 455 ~
the service of the country under the eye of Washing-
ton, and who had experienced with him the fatal
defects of the successive governments which followed
the Declaration of Independence. Of his abilities,
patriotism, and purity of character we have the
strongest evidence, in the repeated efforts made by
Washington, after the establishment of the Consti-
tution, to induce him to accept some of the most
important posts in the government.
He was, indeed, one of that order of men to whom
Washington gave his entire confidence from the first.
A ripe scholar, a profound lawyer, with Revolutionary
laurels of the most honorable kind, —wise, energetic,
and disinterested, —- it is not singular that the peo-
ple of South Carolina should have selected him as
one of their delegates to an assembly, which was to
frame a new constitution of government for the coun-
try to whose service his earlier years had been de-
voted.
General Pinckney entered the Convention with a
desire to adhere, if possible, to the characteristic '
principles of the Confederation; but also with the
wish to‘ make that government more effective, by
giving to it distinct departments and enlarged pow-
ers.1 But in the progress of the discussions, ,he Sur-
rendered these views, and became a party to those
arrangements by which mutual concessions between
the opposing sections of the. Union made. adifl'erent
form of government a practicable result.
1 Madison, Elliot, V. 133.
- 456 THE FEDERAL ooNsTITUTION. [BOOK III.
1 He was a strenuous supporter of the interests of
the slaveholding States, in all that related to their
right to hold and increase their slave population,
He contended earnestly against a grant of authority
to the general government to prohibit the importa-
tion of slaves; for he supposed that his constituents
would not surrender that right. But he finally en-
tered into the arrangement, by which the postpone-
ment of the power to prohibit the slave-trade to the
year 1808 was made a ground of consent on the
part of the Southern States to give. the regulation of
commerce to the Union. He considered it, he said,
the true interest of the Southern States to have no
regulation of commerce; but he yielded it, in consid-
eration of the losses brought upon the commerce of
the Eastern States by the Revolution, and of their
liberality towards the interests of the Southern por-
tion of the Confederacy.
The framers of the Constitution of the United
States have often been bitterly reproached for per-
mitting the slave-trade to be carried on for twenty
years after'the period of its formation; and the East-
ern States have been especially accused of a sordid
spirit of trade in purchasing for themselves the ad-
vantage of a national regulation of commerce by
this concession. ‘It is the duty of History, however,
to record the facts in their true relations.
At the time when the ‘Convention for framing our
Constitution was assembled, no nation hadqprohibited
the African slave-trade. The English Quakers, fol-
lowing the example of their American brethren, had’
on. x111] CHARLES COTESWORTH PINCKNEY. 457
begun to move upon the subject, but it was not
brought formally before Parliament until 1788; the
trade was not abolished by act of Parliament until
1807, nor made a felony until 1810. N apoleon’s
decree of 1815 was the first French enactment
against the traffic.
But in 1787, many of the members of the Ameri-
can Convention insisted that the power to put an
end to this trade ought to be vested in the new gov-
ernment which they were endeavoring to form. But
they found certain of the Southern States unwilling
. to deprive themselves of the supply of this species of
labor for their new and yet unoccupied lands. Those
States would not consent to a power of immediate
prohibition, and they were extremely reluctant to
yield even a power that might be used at a future
period. They preferred to keep the whole subject
in their own hands, and to determine for themselves
when the importation should cease. The members
of the Convention, therefore, who desired the aboli-
tion of this trade, found that, if they attempted to
force these States to a concession that it ought to
be immediately prohibited, either the regulation of
commerce -— the chief object for which the Con-
vention had been called — could not be obtained
for ‘the new Constitution, or, if it were obtained,
several of the Southern States would be excluded
from the Union. The question, then, that presented
itself to them was a great question of humanity and
public policy, to be judged and decided upon all the
circumstances that surrounded it.
von. 1. l 58
458 THE FEDERAL CONSTITUTION. [BOOK m.
_ Were they to form a Union that should include
only those States willing to consent to an immediate
prohibition of the slave-trade, and thus leave the
rest of the States out of that Union, and independent
of its power to restrain the importation of slaves’!
Were they to abandon the hope of forming a new
Constitution for the thirteen States that had gone
together through all the conflicts and trials and
sacrifices of the Revolution, or were they to form
such a government, and secure to it the power at
some early period of ' putting an end to this traflicl
If they were to do the latter, -- if the cause of hu-
manity demanded action upon this and all the other
great objects dependent upon their decisions, —- how
could the commercial interests of the country be bet-
ter used, than in the acquisition of a power to free
its commerce from the stain and reproach of this
inhuman traflicl By the arrangement which was
to form one of the principal “ compromises ” of the
Constitution, American commerce might achieve for
itself the opportunity to do what no nation had yet
done. By this arrangement, it might be implied in
the fundamental law of the new government about
to be created for the American people, that the abo-
lition of the slave-trade was an object that ought to
engage the attention of Christian states. Without
it, the abolition of this trade could not be secured
within any time or by any means capable of being
‘foreseen or even conjectured.
That the framers of the Constitution judged wise-
IY; that they acted upon motives which will enable
on. xnr] CHARLES co'rEswonrH PINCKNEY. 459
History to shield them‘ from all reasonable reproach;
and that they brought about a result alike honorable
to themselves and to their country, - will not be
denied by those who remember and duly appreciate
the fact, that the Congress of the United States,
under the Constitution, was the first legislative body
in the world to prohibit the carrying of slaves to the
' territories of foreign countries.1
It is no inconsiderable honor to the statesmen
situated as General Pinckney and other representa-
tives of the Southern States‘ were, that they should
have frankly yielded the prejudices, and what they
supposed to be the interests, of their constituents, to
the great object of forniing a more perfect union.
Certainly they could urge, with equal if not greater
force and truth, the same arguments for the continu-
ance of the slave-trade, which for nearly twenty
years afterwards were continually heard in the Brit-
ish Parliament, and which postponed its abolition
until long after 'the people of England had become
satisfied both of its inhumanity and its impolicy.
Whether General Pinckney was right or wrong in
the opinion that his constituents needed no national
regulation of commerce, there can be no doubt of
his sincerity when he expressed it. Nor can there
be any doubt that he was fully convinced of the
fact, when he asserted that they would not adopt a
1 Denmark, it is said, abolished take effect until 1804. 1 Kent’s
the foreign slave-trade and the im- Commentaries, 198, note (citing
portation into her colonies in 1792, Mr. Wheaton).
but the prohibitions were not to
460 THE FEDERAL CONSTITUTION. [BOOK III.
constitution that should vest in the national govern
ment an immediate power to prohibit the importa-
tion of slaves. He made, therefore, a real conces-
sion, when he - consented to the prohibition at the
end of twenty years, and he made it in order that
the union of the thirteen States might be preserved
under a Constitution adequate to its wants.
For this, as well as for other services, he is enti-
tled to a place of honor among the great men who
framed the charter of our national liberties; and
when we recollect that by his action he armed the
national government with a power to free the Ameri-
can name from the disgrace of tolerating the slave-
, trade, before it was effectually put down by any other
people in Christendom, we need not hesitate to rank
him high among those who made great sacrifices for
the general welfare of the country and the general
good of mankind.1
1 In the first draft of the Con- ' 1800, prohibited the citizens and
stitution reported by the Commit-
tee of Detail, it was provided that
the importation of ~such persons as
the States might think proper to
admit should not be prohibited.
When the committee to arrange,
if possible, certain compromises
between the Northern and South-
ern States was raised, this provis-
ion, with other matters, was re-
ferred, and it was finally agreed
that the importation should not be
prohibited before the year 1808.
After the adoption of the Constitu-
tion, Congress, by the acts of
March 22d, 1794, and May 10,
\ piracy.
residents of the United States from
> carrying slaves to any foreign ter~
ritory for the purpose of traffic.
By the act of March 2, 1807, the
importation of slaves into the
United States after January 1,
1808, was prohibited under severe
penalties. In 1818 and 1819 these
penalties were further increased,
and in 1820, the offence was made
Although the discussion
of the subject commenced in Eng-
land at about the same time (1788),
it was nearly twenty years before
a bill could be carried through
Parliament for the abolition of
Ca. XIII]
4:61
CHARLES COTESWORTH PINCKNEY.
the trafiic. Through the whole
of that period, and down to the
very last, counsel were repeatedly
heard at the bar, in behalf of
interested parties, to oppose the
reform. The trade was finally
abolished by act of Parliament in
March, 1807; it was made a fel-
ony in 1810, and declared to be
piracy in 1824. While, therefore,
the representatives of a few of the
Southern States of this Union re—
fused to consent to an immediate
prohibition, they did consent to en-
graft upon the Constitution what
was in effect a declaration th'it the
trade should be prohibited at a fixed
period of time; and the trade was
thus abolished by the United States,
under a government of limited pow-
ers, with respect to their own terri-
tories, as soon as it was abolished
by the “ omnipotent” Parliament
of Great Britain. Moreover, by
consenting to give to the Union
the power to regulate commerce,
the Southern‘ States enabled Con-
gress to abolish the slave-trade
with foreign countries thirteen
'years before the same trade was
made unlawful to British vessels.
CHAPTER XIV.
WILSON.
J AMES WILSON, a signer of the Declaration of In-
dependence, and one of the early Judges of the
Supreme Court of the United States, was one of
the first jurists in America during the latter part
of the last century. ..
He was born in Scotland about the year 1742.
After studying at Glasgow, St. Andrews, and Edin-
burgh, he emigrated to Pennsylvania in 1766. He
became, soon after his arrival, a tutor in the Phila-
delphia College, in which place he acquired great
distinction as a classical scholar. He subsequently
studied the law, and was admitted to the bar; and,
after practising at different places, took up his resi-
dence at Philadelphia, where he continued. to reside
during the rest of'his life.1
For six years out of the twelve that elapsed from
1775 to the summoning of the Convention of 1787,
he was a member of Congress. Concerned in all
the great measures of independence, the establish-
ment of the Confederation, the peace, and the reve
Encyclopaedia Americana, Art. “ Wilson, James.”
on. XIV.] wILsoN. 463
nue system of 1783, he had acquired a fund of po-
litical experience, which became of great value. to
the country and to himself. Although a foreigner
by birth, he was thoroughly American in all his
sentiments and feelings, and, at the time he entered
the Convention, there were few. public men in the
country who perceived more clearly the causes of
the inherent weakness of the existing government.
During the'war, he had always considered the States,
with respect to that war, as forming one commu-
nity ;1 and he did not admit the idea, that, when the
Colonies became independent of Great Britain, they
became independent of each other.2 From the Dec-
laration of Independence he deduced the ‘doctrine
that the States by which that measure was adopted
were independent in their confederated character,
and not as individual communities. This rather
subtile distinction may seem now to have been of no
great practical moment, since the Confederation had
actually united the States as such, rather than the
inhabitants of the States. But it was one of ‘the
positions assumed by those who desired to combat
the idea that the States, when assembled in Conven-
‘ tion, were restrained, by their position as equal and
independent sovereignties, from adopting a plan of
government founded on .a representation of the peo-
ple. To this objection Mr. Wilson repeatedly ad-
’ dressed himself, and his**efl'orts**had great influence’
in causing the adoption 1 of the principle by which
l Madison, Elliot, V. 78- 9 Ibid. 213.
i 464
THE FEDERAL CONSTITUTION. [BOOK m,
> union of the States.
the people of the States became directly represented
in the government in the ratio of their numbers.
He showed that this principle had been improperly
violated in the Confederation, in consequence of the
urgent necessity of forming a union, and the impos-
sibility at that time of forming any other than a
As a new partition of the
States was now impracticable, it became necessary
for them to surrender a portion of their sovereign-
ties, and to permit their inhabitants to enter into
direct relations with a new federal union. He point-
ed out the twofold relation in which the people
must henceforth stand; -- in the one, they would be
citizens of the general government; in the other,
they would be citizens of their particular State. As
both governments were derived from the people, and
both were designed for them, both ought to be reg
ulated on the same principles. In no other way
could the larger States consent to a new union;
and if the smaller States could not admit the justice
of a proportionate representation, it was in vain to
expect to form a constitution that would embrace
and satisfy the whole country. i
This great idea of a representative government
was in fact the aim of all Mr. Wilson’s- exertions;
and when the Constitution was formed, he enforced
this idea in the Convention of Pennsylvania with
singular power. His speech in that body is one of
the most comprehensive and luminous commentaries
on the Constitution that have come down to us from
that period. It drew from Washington a high en
on. x1v.] WILSON. 465
4'
comium, and it gained the vote of Pennsylvania for
the new government, against the ingenious and cap-
tivating objections of its opponents.
The life of this wise, able, and excellent man
was comparatively short. In 17 89, he was ap-
pointed by Washington a Judge of the Supreme
Court of the United States. While on a circuit in
North Carolina, in the year 17 98, he died at Eden-
' ton, at about the age of fifty-six. The character of
his 'mind and the sources of his influence will be
best appreciated, by examining some of the more
striking passages of - his great speech on the‘ Con-
stitution.1
1 The following extracts from the speech referred to will well repay
a careful perusal. -
“ Tacitus, — the profoundpolitician Tacitus, — who lived towards the
latter end of those ages which are now denominated ancient, who un-
doubtedly had studied the constitutions of all the states and kingdoms
known before and in his time, and who certainly was qualified, in an
uncommon degree, for understanding the full force and operation of each
of them, considers, after all he had known and read, a mixed govern-
ment, composed of the three simple forms, as a thing rather to he wished
than expected. And he thinks that, if such a government could even no
instituted, its duration could not be long. One thing is very certain, —
that the doctrine of representation in government was altogether un-
known to the ancients. Now, the knowledge and practice of this doc-
trine is, in my opinion, essential to every system that can possess the
qualities of freedom, wisdom, and energy.
“ It is worthy of remark, and the remark may, perhaps, excite some
surprise, that representation of the ‘people is not, even at this day, the
sole principle of any government in Europe; Great--- Britain boasts—
and she may well boast —- of the improvement she has made in politics
by the admission of representation; for the improvement is important as
far as it goes; but it by no means goes far enough. Is the executive
power of Great Britain founded on representation’! This is not pre
von. 1. 59
' 466 THE FEDERAL CONSTITUTION. [BOOK in.
tended. Before the Revolution, many of the kings claimed to reign by
divine right, and others by hereditary right; and even at the Revolution,
nothing further was effected or attempted than the recognition of certain
parts of an original contract (Blackstone, 233), supposed, at some former
remote period, to have been made between the king and the people. A
contract seems to exclude, rather than to imply, delegated power. The
judges of Great Britain are appointed by the crown.~ The judicial au-
thority, therefore, does not depend upon representation, even in its most
remote degree. Does representation prevail in‘ the legislative depart-
ment of the British government? Even here it does notpredominate,
though it may serve as a check. The‘ legislature consists of three
branches,—the king, the lords, and the commons. Of these, only the
latter are supposed by the constitution to represent the authority of the
people. This short analysis clearly shows to what a narrow corner of 7
the British constitution the principle of representation is confined. I
believe it does not extend farther, if so far, in any other government in
Europe. For the American States were reserved the glory and the
happiness of diffusing this vital principle throughout the constituent parts
of government. Representation is the chain of communication between
the people and those to whom they have committed the exerciseof the
powers of government. This chain may consist of one or more links,
but in all cases it should b sufficiently strong and discernible.
“ To be left without gui or precedent was not the only difficulty in
which the Convention wer involved, by proposing to their constituents
a plan of a confederate re ublic. They found themselves embarrassed
with another, of peculiar delicacy and importance. I mean that of draw-
ing a proper ,line between the national government and the governments
of the several States. It was easy to discover a proper and satisfactory
principle on the subject. Whatever object of government is confined, in
its operation and effects, within the bounds of a particular State, should
be considered as belonging to the government of that State; whatever
object of government extends, in its operation or effects, beyond the
bounds of a particular State, should be considered as belonging to the
government of the United States. But'though this principle be sound
and satisfactory, its application to particular cases would be accompanied
with much difficulty, because, in its application, room must be allowed
for great discretionary latitude of construction of the principle. In order
to lessen or remove the difiiculty arising from discretionary construction
on this subject, an enumeration of particular instances, in which the
application of the principle ought to take place, has been attempted with
much industry and care. It is only in mathematical science that a line
on. XIV.] WILSON. 467
can be described with mathematical precision. But I flatter myself that,
upon the strictest investigation, the enumeration will be found to I be safe
and unexceptionable, and accurate, too, in as great a degree as accuracy
can be expected in a subject of this nature. Particulars under this head
will be more properly explained, when we descend to the minute view
of the enumeration which is made in the proposed Constitution.
“ After all, it will be necessary that, on a subject so peculiarly deli-
cate as this, much prudence, much candor, much moderation, and much
liberality should be exercised and displayed both by the federal govern-
ment and by the governments of the several States. It is to be hoped
that those virtues in government will be exercised and displayed, when
we consider that the powers ‘of the federal government and those of the
State governments are drawn from sources equally pure. If a difference
can be discovered between them, it is in favor of the federal government,
because that government is founded on a representation of the whole
Union ; whereas the government of any particular State is founded only
on the representation of a part, inconsiderable when compared with the
whole. Is it not more reasonable to suppose that the counsels of the
whole will embrace the interest of every part, than that the counsels of
any part will embrace the interests of the whole’!
“I intend not, Sir, by this description of the difliculties with which
the Convention were surrounded, to magnify their skill or their merit in
surmounting them, or to insinuate that any predicament in which the
Convention stood should prevent the closest and most cautious scrutiny
into the performance which they have exhibited to their constituents and
to the world. My intention is of far other and higher aim, —-to evince,
by the conflicts and difliculties which must arise from the many and pow-
erful causes which I have enumerated, that it is hopeless and impracti-
cable to form a constitution which, in every ‘part, will be acceptable to
every citizen, or even to every government, in the United States; and
that all which can be expected is, to form such a constitution as, upon
the whole, is the best that can possibly be obtained. Man and perfec-
tion ! —a state and perfection ! -— an assemblage of states and per-
fection! Can we reasonably expect, however ardently we may wish,
to behold the glorious union?!
“ I "can well recollect, though I believe I cannot convey to others, the
impressionpwhich, on many occasions, was made by the diflieulties which
surrounded and pressed the ‘ Convention. The great undertaking. some-
times seemed to be at a stand; at other times, its motion seemed to be
retrograde. At the conclusion, however, of our work, many of the
members expressed their astonishment at the success with which it ter
minated i
468 THE FEDERAL CONSTITUTION. [BOOK III.
“ Having enumerated some of the difiiculties which the Convention
were obliged to encounter in the course of their proceedings, I shall next
point out the end which they proposed to accomplish. Our wants, our \
talents, our affections, our passions, all tell us that we were made for a
state of society. But a state of society could not be supported long or
happily without some civil restraint. It is true, that, in a state of nature,
any one individual may act uncontrolled by others; but it is equally true,
that, in such a state, every other individual may act uncontrolled by him.
Amidst this universal independence, the dissensions and animosities be-
tween interfering members of the society would be numerous and ungov‘
ernable. The consequence would be, that each member, in such a natu-
ral state, would enjoy less liberty, and suffer more interruption, than he
would in a regulated society. Hence the universal introduction of gov-
ernments of some kind or other into the social state. The liberty of
every member is increased by this introduction; for each gains more by
the limitation of the freedom of every other member, than he loses by
the limitation of his own. The result is, that civil government is neces-
sary to the perfection and happiness of man. In forming this govern-
ment, and carrying it into execution, it is essential that the interest and
authority of the whole community should be binding in every part of it.
i’ “The foregoing principles and conclusions are generally admitted to
be just and sound with regard to the nature and formation of single gov-
ernments, and the duty of submission to them. In some cases, they will
apply, with much propriety and force, to states already formed. The
advantages and necessity of civil government among individuals in so-
ciety are not greater or stronger than, in some situations and circum
stances, are the advantages and necessity of a federal government among
states. A natural and very important question now presents itself, —- Is
such the situation, are such the circumstances, of the United States?
A proper answer to this question will unfold some very interesting
truths.
“The United States may adopt any one of four different systems.
~. They may become consolidated into one government, in which the sepa-
rate existence of the States shall be entirely absolved. LThey may reject
any plan of union or association, and act as separate and unconnected
States. 3They may form two or more confederacies. ‘-[They may unite
in one federal republic. Which of these systems ought to have been
formed by the Convention’! To support, with vigor, a single govern-
ment over the whole extent of the United States, would demand a sys-
tem of the most unqualified and the most unremitted despotism. Such
a number of separate States, contiguous’ in situation, unconnected and
on. 'xrv.] WILSON. 469
disunited in government,.would be, at one time, the prey of foreign
force, foreign influence, and foreign intrigue; at another, the victims of
mutual rage, rancor, and revenge. Neither of these systems found ad
vocates in the late Convention. I presume they will not find advocates
in this. ‘Would it be proper to divide the United States into two or
more confederacies? It will not be unadvisable to take a more minute
survey of this subject. Some aspects under which it may be viewed are
far from being, at first sight, uninviting. Two or more confederacies
would be each more compact and more manageable than a single one
extending over the same territory. By dividing the United States into
two or more confederacies, the great collision of interests apparently or
really different and contrary, in the whole extent of their dominion, would
be broken, and, in a great measure, disappear, in the several parts.
But these advantages, which are discovered from certain points of view,
are greatly overbalanced by inconveniences that will appear on a more
accurate examination. Animosities, and perhaps wars, would arise
from assigning the extent, the limits, and the rights of the different con-
federacies. The expenses of governing would be multiplied by the‘
number of federal governments. The danger resulting from foreign
influence and mutual dissensions would not, perhaps, be less great and
alarming in the instance of difl'erent confederaci'es, than in the instance
of different, though more numerous, unassociated States. 7
“ These observations, and many others that might be made on the
subject, will be sufficient to evince that a division of the United States
into a number of separate confederacies would probably be an unsatisfac-
tory and an unsuccessful experiment. The remaining system which the
American States may adopt, is a union of them under one confederate
republic. It will not be necessary to employ much time, or many argu-
ments, to show that this is the most eligible system that can be proposed.
By adopting this system, the vigor and decision of a wide-spreading mon-
archy may be joined to the freedom and beneficence of a contracted re-
public. The extent of territory, the diversity of climate and soil, the
number and greatness and connection of lakes and rivers with which the
United States are intersected and almost ~surrounded,—-all indicate an
enlarged government to be fit and advantageous for them. The princi-
ples and dispositions of their citizens indicate that, in this government,
liberty shall reign triumphant. Such, indeed, havebeen the genera.’
opinions and wishes entertained since the era of independence. If those
opinions and wishes are as well founded as they have been general, the
late Convention were justified in proposing to their constituents one con-
federate republic, as the best system of a national government for the
United States.
470 THE FEDERAL CONSTITUTION. [BOOK 111
“ In forming this system, it was proper to give minute attention to the
interest of all the parts; but there was a duty of still higher import, -
to feel and to show a predominating regard to the superior interests of
the whole. If this great principle had not prevailed, the plan before us
would never have made its appearance. The same principle that was so
necessary in forming it is equally necessary in our deliberations, whether
we should reject or ratify it.
“ I make these observations with a design to prove and illustrate this
great and important"truth,—that, in our decisions on the work of the
late Convention, we should not limit our views and regards to the State
of Pennsylvania. The aim of the Convention was to form a system of
good and eflicient'government, on the more extensive scale of the United
States. In this, and in every other instance, the work should be judged
with the same spirit with which it was performed. A principle of duty,
as well as candor, demands this.
“'We have remarked, that civil government is necessary to the per-
fection of society; we now remark, that civil liberty is necessary to the
perfection of civil government. Civil liberty is natural liberty itself,
divested of only that part which, placed in the government, produces
more good and happiness to the community than if it had remained in
the individual. Hence it follows that civil liberty, while it resigns a
part of natural liberty, retains the free and generous exercise of all the
human faculties, so far as it is compatible with the public welfare.
“ In considering and developing the nature and end of the system
before us, it is necessary to mention another kind of liberty, which has
not yet, as far as I know, received a name. I shall distinguish it by
the appellation of federal liberty. When a single government is insti-
tuted, the individuals of which it is composed surrender to it a part ot
their natural independence, which they before enjoyed as men. When
a confederate republic is instituted, the communities of which it is com-
posed surrender to it a part of their political independence, which they
before enjoyed as States. The principles which directed, in the former
case, what part of the natural liberty of the man ought to be given up,
and what part ought to be retained, will give similar directiQns in the
latter case. The States should resign to the national government that
part, and that part only, of their political liberty, which, placed in that
government, will produce more good to the whole than if it had remained
in the several States. While they resign this part of their political
liberty, they retain the free and generous exercise of all their other facul-
ties, as States, so far as it is compatible with the welfare of the general
and superintending confederacy.
on. XIV.] WILSON. 4'71
“ Since States, as well as citizens, are represented in the Constitution
before us, and form the objects on which that Constitution is proposed to
operate, it was necessary to notice and ‘define federal as well as civil
liberty.
“ These general reflections have been made in order to introduce, with
more propriety and advantage, a practical illustration of the end proposed
to be accomplished by the late Convention. ‘
“It has been too well known, it has been too severely felt, that
the present Confederation is inadequate to the government, and to the
exigencies, of the United States. The great struggle for Liberty in this
country, should it be unsuccessful, will probably be the last one which
she will have for her existence and prosperity in any part of the globe.
And it must be confessed that this struggle has, in some of the stages of
its progress, been attended with symptoms that foreboded no fortunate
issue. To the iron hand of Tyranny, which was lifted up against her,
she manifested, indeed, an intrepid superiority. She broke in pieces the
fetters which were forged for her, and showed that she was unassailable
by force. But she was environed with’ dangers of another kind, and
springing from a very different source. While she kept her eye steadily
fixed on the efforts of oppression, licentiousness was secretly undermin-
ing the rock on which she stood. I ' ~
“ Need I call to your remembrance the contrasted scenes of which w
have been witnesses’! On the glorious ‘conclusion of our conflict with
Britain, what high. expectations. were formed concerning us by others!
What high expectations did we form concerning ourselves I Have‘ those
expectations been realized’.l No. What has been the cause’! Did our
citizens lose their perseverance and magnanimity'! N 0. Did they be
come insensible of resentment and indignation at any high-handed at-
tempt that might have been made to injure or enslave them? No.
What, then, has been the cause’! The truth is, we dreaded danger
only on one side: this we manfully repelled. But, on another side,
danger, not less formidable, but more insidious, stole in upon us; and
our unsuspicious tempers were not sufficiently attentive either to its
approach or to ' its operations. Those whom foreign strength could not
overpower have wellni‘gh become the victims of internal anarchy.
“ If we become a little more particular, we shall find that the foregoing
representation is by no means exaggerated. ‘When we had baflied all the
menaces of foreign power, we neglected to establish among‘ ourselves a
government that‘would insure domestic vigor and stability. ' What was
the consequence? The commencement of peace was the commencement
of every disgrace and distress that could befall a people in a peaceful
4'7 2 THE FEDERAL CONSTITUTION. [BOOK III.
state. Devoid of national power, we could not prohibit the extravagance
of our importations, nor could we derive a revenue from their excess.
Devoid of national importance, we could not procure for our exports a
tolerable sale at foreign markets. Devoid of national credit, We saw our
public securities melt in the hands of the holders, like snow before the
sun. Devoid of national dignity, we could not, in some instances, per-
form our treaties on our part; and, in other instances, we could neither
obtain nor compel the performance of them on the part of others. De-
void of national energy, we could not carry into execution our own reso-
lutions, decisions, or laws. ‘
“ Shall I become more particular still’! The tedious detail would
disgust me. The years of languor are now over. We have felt the
dishonor with which we have been covered; we have seen the destruc-
tion with which we have been threatened. We have penetrated to the
causes of both, and when we have once discovered them, we have begun
to search for the means of removing them. For the confirmation of these
remarks, I need not appeal to an enumeration of facts. The proceedings
of Congress, and of the several States, are replete with them. They all
point out the weakness and insuificiency as the cause, and an eflicient
general government as the only cure, of our political distempers.
“ Under these impressions, and with these views, was the late Con-
vention appointed; and under these impressions, and with these views,
the late Convention met.
“ We now see the great end which they ~proposed to accomplish. It
was to frame, for the consideration of their constituents, one federal
and national constitution, -— a constitution that would produce the advan-
tages of good, and prevent the inconveniences of bad government; —-a
constitution whose beneficence and energy would pervade the whole
Union, and bind and embrace the interests of every part;-a constitution
that would insure peace, freedom, and happiness to the States and people
of America.
“ We are now naturally led to examine the means by which they pro-
posed to accomplish this end. This opens more particularly to our view
the discussion before us. But, previously to our entering upon it, it will
not be improper to state some general and leading principles of govern-
ment, which will receive particular application in the course of our in-
vestigations.
“ There necessarily exists, in every government, a power from which
there is no appeal, and which, for that‘ reason, may be termed supreme,
absolute, and uncontrollable. Where does this power reside’! To this
question writers on different governments will give different answers
on. x1v.] WILSON. 4'73
Sir William Blackstone will tell you, that in Britain the power. is lodged
in the British Parliament; that the Parliament may alter the form of the
government; and that its power is absolute, without control. The idea
of a constitution, limiting and superintending the operations of legislative
authority, seems not to have been accurately understood in Britain.
There are, at least, no traces of practice conformable to such a principle.
The British Constitution is just what the British Parliament pleases.
When the Parliament transferred legislative authority to Henry VIII,
the act transferring could not, in the strict acceptation of the term, he
called unconstitutional.
“ To control the power and conduct of the legislature by an overruling
constitution, was an improvement in the science and practice of govern-
ment reserved to the American States.
“ Perhaps ‘some politician, who has not considered with suflicient ac-
curacy our political systems, would answer that, in our governments,
the supreme power was vested in the constitutions.’ This opinion ap-
proaches a step nearer to the truth, but does not reach it. The truth
ilfi£££¥£¥£§f§l§fistn ‘116392532118’ abaselste, “(Linseed-lath
powerremaz'ns in MEQJ‘IEJ As our constitutions are superior to our
legislatures, so the people are superior to our constitutions. Indeed, the
superiority, in this last instance, is much greater ; for the people possess
over our constitutions control in act, as well as right. I
“ The consequence is, that the people I may change the constitutions
whenever and however they please. This is a right of which no posi-
tive institution can ever deprive them.
“These important truths, Sir, are far from being merely speculative.
We‘, at this moment, speak and deliberate under their immediate and
benign influence. To the operation of these truths we are to ascribe
the scene, hitherto unparalleled, which America now exhibits to the
world, —-a gentle, a peaceful, a voluntary, and a deliberate transition
from one constitution of government to another. In other parts of the
world, the ideaof revolutions in government is, by a mournful and an
indissoluble association, connected with the idea of wars, and all the
calamities attendant on wars. But happy experience teaches us to view
such revolutions in a very different light, -— to consider them only as
progressive steps in improving the knowledge of government, and in
creasing the, happiness .of society and mankind. to,” , _ , , , t.
f‘ 0ft have. I’ marked, with silent pleasure and admiration, the force
and prevalence, through the United States, of the principle that the su-
preme power resides in the people, and that they never part with it. It
may be called the panacea in politics. There can be no disorder in the
,von. 1. 60
g
4'74 THE FEDERAL CONSTITUTION. [BOOK 111.
community but may here receive a radical cure. If the error be in the
legislature, it may be corrected by the constitution; if in the constitu-
tion, it.may, be corrected by the people. There is'a remedy, therefore,
for every distemper in government, if the people are not wanting to
themselves; if they are wanting to themselves, there is no remedy.
From their power, as we have seen, there is no appeal; of their error,
there is no superior principle of correction.
“There are three simple species of government;—-monarchy, where
the supreme power is in a single person; aristocracy, where the supreme
power is in a select assembly, the members of which either fill up, by
election, the vacancies in their own body, or succeed to their places in
it by inheritance, property, or in respect of some personal right or qualifi-
cation; a republic or democracy, where the people at large retain the
supreme power, and act either collectively or by representation.
“ Each of these species of government has its advantages and disad~
vantages. ,
“ The advantages of a monarchy are strength, despatch, secrecy,
unity of counsel. Its disadvantages are tyranny, expense, ignorance of
the situation and wants of the people, insecurity, unnecessary wars, evils
attending elections or successions.
“ The advantages of aristocracy are wisdom, arising from experience
and education. Its disadvantages are dissensions among themselves,
oppression to the lower orders.
“The advantages of democracy are liberty, equality, cautious and
salutary laws, public spirit, frugality, peace, opportunities of exciting
and producing abilities of the best citizens. Its disadvantages are dis-
sensions, the delay and disclosure-of public counsels, the imbecility of
public measures, retarded by the necessity of a numerous consent.
“ A government may be composed of two or more of the simple forms
above mentioned. Such is the British government. It would be an
improper government for the United States, because it is inadequate to
such an extent of territory, and because it is suited to an establishment
of different orders of men. A more minute comparison between some
parts of the British Constitution, and some parts of the plan before us,
may perhaps find a proper place in a subsequent period of our business.
“ .What is the nature and kind of that government which has been pro-
posed for the United States by the late Convention 1 In its principle, it
is purely democratical. But that principle is applied in different forms,
in order to obtain the advantages, and exclude the inconveniences, of the
simple modes of government.
Sp “If we take an extended and accurate view of it, we shall find the
on. XIV.] WILSON. ' 475
streams of power running in different directions, in different dimensions,
and at different heights,-—watering, adorning, and fertilizing the fields
and meadows through which their courses are led ; but if we trace them,
we shall discover that they all originally flow- from one abundant fountain.
“ In this Constitution, all authority is derived from the people.
“ Fit occasions will hereafter offer for particular remarks on the differ-
ent parts of the plan.”
After an elaborate examination of the Constitution, he thus con-
cludes : —— -
“A free government has often been compared to a pyramid. This
allusion is made with peculiar propriety in the system before you; it is
laid on the broad basis of the'people; its powers gradually rise, while
they are confined in proportion as they ascend, until they end in that
most permanent of all forms. When you examine all its parts, they
will invariably be found to preserve that essential mark of free govern-
ments, — a chain of connection with the people.
“Such, Sir, is the nature of this ‘system of government; and the
important question at length presents itself . to our view,—.Shall it be
ratified, or shall it be rejected, by this Convention’! In order to enable
us still further to form a judgment on this truly momentous and interest~
ing point, on which all we have, or can have, dear to ‘us on earth is
materially depending, let us for a moment consider the consequences that
will result from one or the other measure. Suppose we reject this sys-
tem of government; what will be the consequence"! Let the farmer
say, — he whose produce remains unasked for; nor can he find a single
market for its'consumptio'n, though his fields are blessed with luxuriant
abundance. Let the manufacturer, and let the mechanic, say; they can
feel, and tell their feelings. Go along the wharves of Philadelphia, and
observe the melancholy silence that reigns. I appeal not to those who
enjoy places and abundance under the present government; they may
well dilate upon the easy and happy situation of our country. Let the
merchants tell you what is our commerce; let them say what has been
their situation since the return of peace, —- an era ‘which they might have
expected would furnish ‘ additional sources to our trade, and a continu-
ance, and even an increase, to their fortunes. Have these ideas been
realized’! or do they not lose soineof their capital in every adventure,
and continue the unprofitable trade from year to year, subsisting under
the hopes of happier times under an eflicient general ' government’! The
ungainful trade carried on by our merchants has a baneful influence on
the interests of the manufacturer, the mechanic, and the farmer; and
these, I believe, are the chief interests of the people of the United States.
476 THE FEDERAL CONsTITUTION. [BOOK III. A
“ I will go further. Is there now a government among us that can
do a single act that a national government ought to do’! Is there any
power of the United States that can command a single shilling’! This
is a plain and a home question.
“ Congress may recommend; they can do no more: they may re-
quire; but they must not proceed one step further. If things are bad
now, —- and that they are not Worse is only owing to hopes of improve-
ment or change in the system,-—will they become better when those
hopes are disappointed! We have been told, by honorable gentlemen
on this floor, that it is improper to urge this kind of argument in favor
of a new system of government, or against the old one: unfortunately,
Sir, these things are too severely felt to be omitted; the people feel
them; they pervade all classes of citizens, and every situation from New
Hampshire to Georgia: the argument of necessity is the patriot’s de-
fence, as well as the tyrant’s plea.
“ Is it likely, Sir, that, if this system of government is rejected, a
better will be framed and adopted! I will not expatiate on this subject;
but I believe many reasons will suggest themselves to prove that such
expectation would be illusory. If a better could be obtained at a future
time, is there any thing wrong in this‘! I go further. Is there any
thing wrong that cannot be amended more easily by the mode pointed
out in the system itself, than could be done by calling convention after
convention, before the organization of the government! Let us now turn
to the consequences that will result if we assent to and ratify the instru
ment before you. I shall trace them as concisely as I can, because I
have trespassed already too long on the patience and indulgence of the
house. 3
“ I stated, on a former occasion, one important advantage; by adopt-
ing this system, we become a nation; at present, we are not one. Can
we perform a single national act! Can we do any thing to procure
us dignity, or to preserve peace and tranquillity’! Can we relieve the
distress of our citizens’! Can we provide for their welfare or happi-
ness’! The powers of our government are more sound. If we offer to
treat with a nation, we receive this humiliating answer: ‘You cannot,
in propriety of language, make a treaty, because you have no power to
execute it.’ Can we borrow money! There are too many examples
of unfortunate creditors existing, both on this and the other side of the
Atlantic, to expect success from this expedient. But could we borrow
money, we cannot command a fund, to enable us to pay either the princi-
pal or‘ interest; for, in instances where our friends have advanced the
principal, they have been obliged to advance the interest also, in order
on. XIV.] WILSON. 4:77
to prevent the principal from being annihilated in their hands by depre-
ciation. Can we raise an army’! The prospect of a war is highly prob-
able. The accounts we receive, by every vessel from Europe, mention
that the highest exertions are making in the ports and arsenals of the
greatest maritime powers. But whatever the consequence may be, are
we to lie supine’! We know we are unable, under the Articles of Con-
federation, to exert ourselves; and shall we continue so, until a stroke be
made on our commerce, or we see the debarkation of a hostile army on
‘our unprotected shores’! Who will guarantee that our property will not
be laid waste, that our towns will not be put under contribution, by a
small naval force, and subjected to all the horror and devastation of war’!
May not this be done without opposition, at least efl'ectual opposition, in
the present situation of our country? There may be safety over the
Appalachian Mountains, but there can be none on our sea-coast. With
what propriety can we hope our flag will be respected, while we have
not a single gun to firefin its defence? -
“ Can we expect to make internal improvement, or accomplish any of
those great national objects which I formerly alluded to, when we cannot
find money to remove a single rock out of a river’!
“ This system, Sir, will at least make us a nation, and put it in the
power of the Unionto act as such. We shall be considered as such by
every nation in the world. We shall regain the confidence of our citi-
zens, and command the respect of others.
“ As we shall become a nation, I trust that we shall also form a na-
tional character, and that this character will be adapted to the principles
and genius of our system of government: as yet we possess none; our
language, manners, customs, habits, and dress depend too much upon
those of other countries. Every nation, in these respects, should pos-
sess originality; there are not, on any part of the globe, finer qualities
for forming a national character, than those possessed by the children of
America. Activity, perseverance, industry, laudable emulation, docility
in acquiring information, firmness in adversity, and patience and magna-
nimity under the greatest hardships; -,-from these materials, what a.
respectable national character may be raised! In addition to this char-
acter, I think there isv strong reason to believe that America may take the
lead in literary improvements and-national importance. This is a sub-
ject which, Iconfess, I have spent much pleasing time in-considering;
That language, Sir, which shall become most generally known in the
civilized world will impart great importance over the nation that shall
use it. The language of the United States will, in future times, be
diffused over a greater extent of country‘ than any other that we know
4'7 8 THE FEDERAL CONSTITUTION. [BOOK 111.
The French, indeed, have made laudable attempts towardsestablishing
a‘ universal language; but, beyond the boundaries of France, even the
French language is not spoken by one in a thousand. Besides the free-
dom of our country, the, great improvements she has made, and will
make, in the science of government, will induce the patriots and literati
of every ‘nation to read and understand-our writings ~on that subject;
and hence it is not improbable that she will take the lead in political
knowledge. '
“ If we adopt this system of government, I think we may promise.
security, stability, and tranquillity to‘th'e governments of the different
States. They would not be exposed to the danger of competition on
questions of territory, or any other that have heretofore disturbed them.
A tribunal is here found to decide, justly and quietly, any interfering
claim; and now is accomplished what the great mind of Henry IV. of
France had in contemplation,—a system of government for large and
respectable dominions, united and bound together, in peace, under a
superintending head, by which all ‘their difi'erences may be accommo-
dated, without the destruction, of the human race. We are told by Sully
that this was the favorite pursuit of that good king during the last years
of his life; and he would probably have carried it into execution, had
not the dagger of an assassin deprived the world of his valuable life. I
have, with pleasing emotion,w seen the wisdom and beneficence of a less
efiicient power under the Articles of Confederation, in the determination
of the controversy between the States of Pennsylvania and Connecticut ;
but I have lamented that the authority of Congress did not extend to
extinguish, entirely,‘ the spark which has kindled a dangerous flame in
the district of Wyoming.
“ Let gentlemen turn their attention to the amazing consequences
which this principle will have in this extended country; The several
States cannot war with each other ; the general government is the great
arbiter in contentions between them; the whole force of the Union can
be called forth to reduce an aggressor to reason. What a happy ex
change for the disjointed, contentious State sovereignties!
“ The adoption of this system will also secure us from danger, and
procure us advantages from foreign nations. This, in our situation, is
of great consequence. We are still an inviting object to one European
power at least; and, if we cannot defend ourselves,‘ the temptation may
become too alluring to be resisted. I do not mean that, with an efficient
government, we should mix with the commotions of Europe. N 0, Sir;
we are happily removed from them, and are not obliged to throw our-
selves into the scale with any. This system will not hurry us into war;
on. XIVJ WILSON. 4'7 9
. it is calculated to guard against it. It will not be in the power of a
single man, or a single body of men, to involve us in such distress; for
the important power of declaring war is vested in the legislature at
large : this declaration must be made with the concurrence of the House
of Representatives: from this circumstance we may draw a certain con-
clusion, that nothing but our national interest can draw us into a war.
‘I cannot forbear, on this occasion, the pleasure of mentioning to you the
sentiments of the great and benevolent man, whose works I have already
quoted on another subject. M. Necker has addressed this country in
language important and applicable in the strictest degree to its situation
and to the present subject. Speaking of war, and the greatest caution
that all nations ought to use in order to avoid its calamities,—‘ And you,
rising nation,’ says he, ‘ whom generous efforts have freed from the yoke
of Europe! let. the universe be struck with still greater reverence at the
sight of the privileges you have acquired, by seeing you continually
employed for the public felicity : do not offer it as a sacrifice at the un-
settled shrine of political ideas, and of the deceitful combinations of war-
like ambition; avoid, or at least delay, participating in the passions of
our hemisphere; make your own advantage of the knowledge which
experience alone has given to our old age, and preserve, for a long time,
the simplicity of childhood; in short, honor human nature, by showing
that, when left to its own feelings, it is still capable of those virtues that
maintain public order, and of that prudence which insures public tran-
quillity.’ _
“ Bermit me to offer one consideration more, that ought to induce our
acceptance of this system. I feel myself lost in the contemplation of its
magnitude. By adopting this system, we shall probably lay a foundation
for erecting temples of liberty in every part of the earth. It has been
thought by many, that on the success of the struggle America has made
for freedom will depend the exertions of the brave and enlightened of
other nations. The advantages resulting from thisxsystem will not be
confined to the United States, but will draw from Europe many worthy
characters, who pant for the enjoyment _' of freedom. It will’ induce
princes, in order to preserve their subjects, to restore to them a portion
of that liberty of which they have for many'ages been deprived. It will
be subservient to the great designs of Providence with regard to this
globe, -—‘the multiplication of mankind,‘ their improvement in knowl-
edge, and their advancement in happiness.” (Elliot’s Debates, ll.
9')‘ - 434, 524- 529.)
CHAPTER XV.
RANDOLPH.
‘ EDMUND RANDOLPH, a “ child of the Revolution,“
was Governor of Virginia at the time of the Federal
Convention. Probably it was on account of his
position as the chief magistrate of the State that he
was, by the general consent of his colleagues, selected
to bring forward the Virginia plan of government,
which was submitted at an early period of the delib-
erations, and which became, after great modifications,
the nucleus of the Constitution.
At an early age, in August, 1775, this gentleman
joined the army at Cambridge, and was immediately
taken into Washington’s military family as an aide-
de-camp.2 He served in this capacity, however, no
longer than until the following November, when he
was suddenly recalled to Virginia by the death of
, his relative, Peyton Randolph, the President of the
First Continental Congress.
In 177 9, he became a member of Congress from
Virginia, and served until March, 1782.
1 His own description of him- fled the Constitution. Elliot,
self in a speech made in the III. 65.
Virginia Convention which rati- 9 Washington’s Writings, IX. 66.
f
on. xv.] RANDOLPH. 481
In 1786, he was elected Governor of Virginia,
succeeding in that ofiice Patrick Henry. In this
capacity, it became his duty to secure the attend-
ance of Washington upon the Federal Convention.
This matter he managed with great tact and deli-
cacy; and, by the aid of other friends, he succeeded
in overcoming the scruples of the illustrious patriot
then reposing in the retirement of Mount Vernon.
Governor Randolph’s conduct with regard to the
Constitution might seem ‘to be marked by inconsist-
ency, if we were not able to explain it by the motive '
of disinterested patriotism from which he evidently
acted. He brought to the Convention the most
serious apprehensions for the fate of the Union.
But he thought that the dangers with which it was
surrounded might be averted, by correcting and en'-
larging the Articles of Confederation. When, at
length, the government which was actually framed
was found to be a system containing far greater
restraints upon the powers of the States than he
believed to be either expedient or safe, he endeav-
ored to procure a vote authorizing amendments to be
submitted by the State conventions and to be finally
decided on by another general convention. This
proposition having been rejected, he declined to sign
the Constitution, desiring to be free to oppose or
advocate its adoption, when it should come before
his own State, as his judgment might dictate. '
When the time for such action came, he saw that
the rejection of the Constitution must be followed by
disunion. He had wearied himself in endeavoring
von. 1. ' - 61
482 THE FEDERAL ooNsTITuTIoN. [BOOK III.
to find a possibility of preserving the Union without
an unconditional ratification by Virginia. To the
people of Virginia, therefore, he painted with great
force and eloquence the consequences of their be-
coming severed from the rest of the country. Vir-
ginia was not, he said, invulnerable. She was ac-
cessible to a foreign enemy by sea, and through the
Waters of the Chesapeake. Her situation by land was
not less exposed. Her frontiers adjoined the States
of Pennsylvania, Maryland, and North Carolina.
’ With the first she had long had a disputed bounda-
ry, concerning which there had been imminent dan-
ger of a War, that had been averted with the greatest
difficulty. With Maryland, there was an ancient
controversy upon the navigation of the Potomac,
and that controversy, if decided on grounds of strict
right, would be determined ‘by the charter of Mary-
land in favor of that State. With North Carolina,
too, the boundary was still unsettled. Let them call
to mind, then, the history of every part of the WOl‘ld,
Where independent nations bordered in the same Way
on one another. Such countries had ever been a
perpetual scene of bloodshed ; the inhabitants of one
escaping from punishment into the other, —- pro-
tection given to them, — consequent pursuit, vio-
lence, robbery, and murder. A numerous standing
army, that dangerous expedient, could alone defend
such borders. '
On her Western frontier, Virginia was peculiarly
exposed to the savages, the natural enemies of‘ the
White race, Whom foreign gold could always incite
Ca. xv.] RANDOLPH. 4:83
to commit the most horrible ravages upon her peo-
ple. Her slave population, bearing a very large pro-
portion to the whites,1 necessarily weakened her ca-
pacity to defend herself against such an enemy.
Virginia, then, must be defended. Could they
rely on the militia’! Their militia did not, at the
utmost, exceed sixty thousand men. They had per-
formed exploits of great gallantry during the late
War, ,but no militia could be relied on as the sole
protectors of any country. ' Besides, a part of them
would he wanted for the purposes of agriculture, for
manufactures, and for the mechanic arts necessary
for the aid of the farmer and the planter. They
must have an army; and they must also have a
navy. But how were these to be maintained with-
out money’! The enormous debt of Virginia, in-
cluding her proportion of the Continental debts, was
already beyond her ability to pay from any revenue
that could be derived from her present commerce.
In this state of things, looking forward to the con-
' sequences of a dissolution of the Union, he could not
but remind the people of Virginia of what took place
in 1781, when the power of a dictator was given to
the oommander-in-chief, to save the country from
destruction. At some period, not very remote, might .
not their future distress impel them to do what the
Dutch had done, -- throw all power into the hands
‘of a Stadtholder'! How infinitely more wise and
eligible than this desperate alternative would be a'
1 He stated the number of blacks to be 236,000, and that of the whites
only 352,000.
484 THE FEDERAL CONSTITUTION. [BOOK III.
' union with their American brethren. “ I have la-
bored,” said he, “for the continuance of the Union,—
the rock Of our salvation. I believe, as surely as
that there is a God, that our safety, our political
happiness and existence, depend 011 the union of the
States; and that, without this union, the people of
this and the other States will‘ undergo the unspeak-
able calamities which discord, faction, turbulence,
‘war, and bloodshed have produced in other coun-
tries. The American spirit ought to be mixed with
American pride, to see the Union magnificently tri-
umphant. Let that glorious pride, which once de-
fled the British thunder, reanimate you again. Let
it not be recorded of Americans, that, after having
performed the most gallant exploits, after having
overcome the most astonishing. difficulties, and after
having gained the admiration of the world by their
incomparable valor and policy, they lost their ac-
quired reputation, their national consequence and
happiness, by their own indiscretion. Let no future
historian inform posterity that they wanted wisdom
and virtue to concur in any regular, efficient govern
ment. Should any writer, doomed to so disagreeable
a task, feel the indignation of an honest historian,
he would reprehend our folly with equal severity
and justice. Catch the present moment, — seize it
with' avidity, -for it may be lost, never- to be re-
gained! If the Union be now lost, I fear it will
remain so for ever. I believe gentlemen are sincere
in their opposition, and actuated by pure motives;
but when I maturely weigh the advantages of the
on. xv.] RANDOLPH. 485
Union, and the dreadful consequences of its dissolu-
tion; when I see safety on my right, and destruction
on my left; when I behold respectability and happi-
ness acquired by one course, but annihilated by the
other, — I cannot hesitate’ in my decision.” 1
Norm. —The following-account of the genealogy of Governor Ran-
dolph, for which I am indebted to one of his female descendants, was not
received in season to be incorporated in the text.
Edmund Randolph was the son of John Randolph and grandson of Sir
John Randolph, each of whom was Attorney-General of the Colony under
the royal government. He was educated at William and Mary’s College.
Peyton Randolph, President _of the First Continental Congress, was also
a son of Sir John Randolph, and of course was uncle of Edmund Ran-
dolph, to whom he devised his estate. Sir John Randolph was one of
five or six sons of William Randolph of Turkey Island in Virginia, from
whom all the Randolphs in Virginia are descended. Of this William
Randolph little is known, beyond the fact that he was a large landholder,
and a nephew of Thomas Randolph, the poet, who flourished in the reigns
of James I. and Charles I., 1605 - 1634.
1 Debates in the Virginia Convention, Elliot, III. 65-84, 85, 86.
CHAPTER XVI.
CoNoLIIsIoN OF THE PREsENT VOLUME.
TI-IE limits of this volume do not admit of a farther
description of'the Framers of the Constitution. The
nine persons of whom some account has been given
were the most important members of the Convention,
and those who exercised the largest influence upon
its decisions. But the entire list embraced other
men of great distinction and ability, celebrated, be-
’ fore and since the Convention, in that period of the
political history of America which commenced with
the Revolution and closed with the eighteenth cen-
tury. Such were Roger Sherman of Connecticut,
Robert Morris of Pennsylvania, John Dickinson of
Delaware, John Rutledge and Charles Pinckney of
South Carolina, and George Mason of Virginia. Of
the rest, all were men of note and influence in their
respective States, possessing the full confidence of the
people whom they represented.
The whole assembly consisted of only fifty-five
members, representing twelve sovereign and distinct
communities.1 That so small a body should have
1 For a full list of the Delegates, see the Appendix to this volume.
on. xvr; couonusron on THE VOLUME. 487
contained so large a number of statesmen of pre-
eminent ability is a striking proof of the nature of
the crisis which called it into existence. The age
which had witnessed the Revolution, and the wants
and failures that succeeded it, produced and trained
these great men, made them capable of the highest
magnanimity, and gave them the intellectual power
necessary to surmount the difficulties that obstructed
the progress of their country to prosperity and re-
nown. These, with a few of their contemporaries at
that moment engaged in other spheres of public
duty, are the men who illustrate and adorn it, and
the knowledge of their lives and actions is of un-
speakable importance to the people of the United
States. ' ‘
To that people is committed a trust, which im-
poses upon them a greater responsibility than now
rests upon any other people on,‘ the globe. They
possess a written and exact constitution of govern-
ment,‘ framed with great wisdom by their own de-
puted agents, and deliberately adopted and enacted
by themselves. That Constitution rules over a coun-
try of vast extent, inhabited by more than twenty
millions of prosperous and intelligent freemen, who
constitute one of the first nations of the world.' i N o
where on the face of the globe has the experiment of
self-government — that experiment so rarely tried, so
rarely successful, and so important to the welfare of
mankind -— been conducted on a scale so grand and
imposing. To prevent a failure so disastrous to the
best interests of the human race as the failure of
l‘
488 THE FEDERAL. ooNsTITUTIoN.
[Boox III.
that experiment here must inevitably become; to
guard this Constitution, the work of their own
hands, from every kind of attack; to administer it
in the wise spirit in which it was framed; to draw
from it the blessings which it was designed to con-
fer; to unfold, to cherish, and to defend its great
principles for the benefit of a countless posterity; —
this is the high duty imposed by a noble ancestry
and an overruling Providence upon the people of
this Union of each succeeding generation.
It calls upon them, with a remonstrance in whose
tones there is both a Warning and a cheering voice,
to remember that they have a country; to appre-
ciate and fearlessly to survey the truth, that national
honor and success, internal tranquillity and peace,
reputation abroad and safety at home, can exist, for
them, only under the Union which the Divine gov-
ernment, for its own all-wise purposes, has made a
necessity of their condition; and to see that the ruin
of self-government in America must involve its ruin
for the whole world.1
1 In this connection, I cannot
avoid a reference to Dr. Francis
LieberZs profound and admirable
every department. The destruc-
tion of such a system, therefore,
would be the destruction of self-
work “ On Civil Liberty and Self-
government.” Whoever will fol-
low that very able writer in his
masterly exposition of the princi—
ples of Anglican liberty, will be-
come satisfied that the American
branch of it is more strictly a sys-
tem of “ self-government ” than any
other, speaking with reference to
the application of the principle to
government in its most complete
form- No one can suppose that
the popular principles in the Eng-
lish Constitution would continue to
expand, as they have done for the
last fifty years, if the correspond-
ing principles in America were to
be overthrown, or even if they were
to receive a sensible check.
APPENDIX.
von. 1. 62
APPENDIX.
IN CONGRESS.
CIRCULAR LETTER OF CONGRESS RECOMMENDING THE ADOPTION
OF THE ARTIOLEs OF CONFEDERATION.
IN CONGRESS, YORKTOWN, November 17th, 177 7.
Congress having agreed upon a plan of confederacy for securing the
freedom, sovereignty, and independence of the United States, authentic
copies are now transmitted for the consideration of the respective legis
latures.
This business, equally intricate and important, has in its progress
been attended with uncommon embarrassments and delay, which the
most anxious solicitude and persevering diligence could not prevent
To form a permanent union, accommodated to the opinion and wishes
of the delegates of so many States differing in habits, produce, com-
merce, and internal police, was found to be a work which nothing but
time and reflection, conspiring with a disposition to conciliate, could
mature and accomplish.
Hardly is it to be expected that any plan, in the variety of provisions
essential to our union, should exactly correspond with the maxims and
political views of every particular State. Let it be remarked, that, after
the most careful inquiry and the fullest information, this is proposed as
the best which could be adapted to the circumstances of all, and as that
alone which affords any tolerable prospect of general satisfaction.
Permit us, then, earnestly to recommend these articles to the imme-
diate and dispassionate attention of the legislatures of the respective
States. Let them be candidly reviewed, under a sense of the dificulty
of combining in one general system the various sentiments and interests
\
4:92 THE FEDERAL CONSTITUTION.
of a continent divided into so many sovereign and independent communi
ties, under a conviction of the absolute necessity of uniting all our counsels
and all our strerigth to maintain and defend our common liberties; let them
be examined with a liberality becoming brethren and fellow-citizens sur-
rounded by the same imminent dangers, contending for the same illustrious
prize, and deeply interested in being for ever bound and connected to-
gether by ties the most intimate and indissoluble; and, finally, let them
be adjusted with the temper and magnanimity of wise and patriotic leg-
islators, who, while they are concerned for the prosperity of their own
more immediate circle, are capable of ‘rising superior to local attach-
ments, when they may be incompatible with the safety, happiness, and
glory of the general confederacy. .
We have reason to regret the time which has elapsed in preparing
this plan for consideration ; with additional solicitude we look forward
to that which must be necessarily spent before it can be ratified Every
motive loudly calls upon us to hasten its conclusion.
More than any other consideration, it will confound our foreign ene-
mies, defeat the flagitious practices of the disaffected, strengthen and
confirm our friends, support our public credit, restore the value of our
money, enable us to maintain our fleets and armies, and add weight and
respect to our counsels at home and to our treaties abroad.
In short, this salutary measure can no longer be deferred. It seems
essential to our very existence as a free people, and without it we may
feel constrained to bid adieu to independence, to liberty and safety, —
blessings which, from the justice of our cause and the favor of our
Almighty Creator visibly manifested in our protection, we have reason
to expect, if, in an humble dependence on his divine providence, we
strenuously exert the means which are placed in our power.
To conclude, if the legislature of any State shall not be assembled,
Congress recommend to the executive authority to convene it without
delay; and to each respective legislature it is recommended to invest its
delegates with competent powers ultimately, in the name and behalf or
the State, to subscribe Articles of Confederation and Iferpetual Union
of the United States; and to attend Congress for that purpose on or be-
fore the tenth day (f March next. '
APPENDIX. 493
NEW JERSEY.
REPRESENTATION or THE STATE or New Jsnsnr oN THE
ARTICLES or CONFEDERATION, READ IN CoNeREss, JUNE
25, 1778.
To the United States in Congress assembled : The Representation of the
Legislative Council and General Assembly of the State of New Jersey
showeth : ——
That the Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode Island and Provi-
dence Plantations, Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina, and
Georgia, proposed by the honorable the Congress of the said States,
severally for their consideration, have been by us fully and attentively
considered; on which we beg leave to remark as follows :—
1. In the fifth article, where, among other things, the qualifications
of the delegates from the several States are described, there is no men-
tion of any oath, test, or declaration, to be taken or made by them pre
vious to their admission to seats in Congress. It is, indeed, to be pre
sumed the respective States will be careful that the delegates they send
to assist in managing the general interest of the Union take the oaths to
the government from which they derive their authority; but as the United .
States, collectively considered, have interests, as well as each particular
State, we are of opinion that some test or obligation binding upon each
delegate while he continues in the trust, to consult and pursue the for-
mer as well as the latter, and particularly to assent to no vote or pro-
ceeding which may violate the general confederation, is necessary.
The laws and usages of all civilized nations evince the propriety of an
oath on such occasions; and the more solemn and important the deposit,
the more strong and explicit ought the obligation to be.
2. By the sixth and ninth articles, the regulation of trade seems to be
committed to the several States within their separate jurisdictions, in
such a degree as may involve many difliculties and embarrassments, and
be attended with injustice to some States in the Union. We are of
opinion, that the sole and exclusive power of regulating the trade of the
United States with foreign nations ought to be clearly vested in the
Congress; and that the revenue arising from ‘all duties and customs
494 TIE: FEDERAL CONSTITUTION.
imposed thereon ought to be appropriated to the building, equipping,
and manning a navy for the protection of the trade and defence of ' the
coasts, and to such other public and general purposes as to the Congress
shall seem proper, and for the common benefit of the States. This prin—
ciple appears to us to be just, and it may be added, that a great security
will by this means be derived to the Union from the establishment of a
common and mutual interest.
3. It is wisely provided, in the sixth article, that no body of forces
shall be kept up by any State in time of peace, except such number only
as, in the judgment of the United States in Congress assembled, shall be
deemed requisite to garrison the forts necessary for the defence of such
States. We think it ought also to be provided and clearly expressed,
that no body of troops be kept up by the United States in time of peace,
except such number only as shall be allowed by the assent of the nine
States. A standing army, a military establishment, and every append-
age thereof, in time of peace, is totally abhorrent from the ideas and
principles of this State. In the memorable act of Congress declaring
the United Colonies free and independent States, it is emphatically men-
tioned, as one of the causes of separation from Great Britain, that the
sovereign thereof had kept up among us, in time of peace, standing armies
_ without the consent of the legislatures. It is to he wished the liberties
and happiness of the people may by the Confederation be carefully and
explicitly guarded in this respect.
4. On the eighth article we observe, that, as frequent settlements of
the quotas for supplies and aids to be furnished by the several States in
support of the general treasury will be requisite, so they ought to be
secured. It cannot be thought improper, or unnecessary, to have them
struck once at least in every five years, and oftener if circumstances will
allow. The quantity or value of real property in some States may
increase much more rapidly than in others; and therefore the quota
which is at one time just will at another he disproportionate.
5. The boundaries and limits of each State ought to be fully and
finally fixed and made known. This we apprehend would be attended
with very salutary effects, by preventing jealousies, as well as contro-
versies, and promoting harmony and confidence among the ‘States. It
the circumstances of the times would not admit of this, previous to the
proposal of the Confederation to the several States, the establishment ot
the principles upon which and the rule and mode by which the deter-
mination might be conducted at a time more convenient and favorable for
despatching the same at an early period, not exceeding five years from
the final ratification oi the Cbnfederation, would be satisfactory.
APPENDIX. 495
6. The ninth article provides, that no State shall be deprived of terri-
tory for the benefit of the United States. Whether we are to understand,
that by territory is intended any land, the property of which was here-
tofore vested in the crown of Great Britain, or that no mention of such
land is made in the Confederation, we are constrained to Observe, that
the present war, as we always apprehended, was undertaken for the
general defence and interest of the confederating Colonies, now the
United States. It was ever the confident expectation of this State, that
the benefits derived from a successful contest were to be general and
proportionate; and that the property of the common enemy, falling in
consequence of a prosperous issue of the war, would belong to the United
States, and be appropriated to their use. We are therefore greatly dis-
appointed in finding no provision made in the Confederation for empow-
ering the Congress to dispose of such property, but especially the vacant
and impatented lands, commonly called the crown lands, for defraying
the expenses of the war, and for such other public and general purposes.
The jurisdiction ought in every instance to belong to the respective States
within the charter or determined limits of which such lands ma’y be
seated; but reason and justice must decide that the property which ex-
isted in the crown of Great Britain, previous to the present Revolution,
ought now to belong to the Congress, in trust for the use and benefit of
the United States. They have fought and bled for it in proportion to
their respective abilities; and therefore the reward ought not to be pre-
dilectionally distributed. Shall such States as are shut out by situation
from availing themselves of the least advantage from this quarter be left
to sink under an enormous debt, whilst others are enabled, in a short
period, to replace all their expenditures from the hard earnings of the
whole confederacy’!
7. The ninth article also provides, that requisitions for the land forces
to be furnished by the several States shall be proportioned to the number
of white inhabitants in each. In the act of Independence we find the fol-
lowing declaration :_ “ We hold these truths to be self-evident, that all
men are created equal; that they are endued by their Creator with certain
unalienable rights, among which are life, liberty, and the pursuit of hap-
piness.” Of this doctrine it is not a very remote consequence, that all
the inhabitants of every society, he the color of their complexion what it
may, are bound to promote the interest thereof, according to their re-
spective abilities. They ought, therefore, to be brought into the ac-
count on this occasion. But admitting necessity or expediency to justify
the refusal of liberty in certain circumstances to persons of a peculiar
color, we think it unequal to reckon upon such in this case. Should it
496 THE FEDERAL CONSTITUTION.
be improper, for special local reasons, to admit them in arms for the de-
fence of the nation, yet we conceive the proportion of forces to be em-
bodied ought to be fixed according to the whole number of inhabitants
in the State, from whatever class they may be raised. If the whole
number of inhabitants in a State, whose inhabitants are all whites,
both those who are called into the field, and those who remain to
till the ground and labor in the mechanical arts and otherwise, are
reckoned in the estimate for striking the proportion of forces to be fur-
nished by that State, ought even a part of the latter description to be
left outin another’.l As it is of indispensable necessity in every war,
that a part of the inhabitants be employed or the uses of husbandry and
otherwise at home, while others are called into the field, there must be
the same propriety that the owners of a different color who are employed
for this purpose in one State, while whites are employed for the same
purpose in another, be reckoned in the account of the inhabitants in the
present instance.
8. In order that the quota of troops to be furnished in each State on
occasion of a war may be equitably ascertained, we are of opinion that
the inhabitants of the several States ought to be numbered as frequently
as the nature of the case will admit, once at least every five years. The
disproportioned increase in the population of different States may render
such provisions absolutely necessary.
9. It is provided in the ninth article, that the assent of nine States out
of the thirteen shall be necessary to determine in sundry cases of the
highest concern. If this proportion be proper and just, it ought to be
kept up, should the States increase in number, and a declaration thereof
be made for the satisfaction of the Union.
That we think it our indispensable duty to solicit the attention of Con-
gress to these considerations and remarks, and to request that the pur-
port and meaning of them be adopted as part of the general. confedera-
tion ; by which means we apprehend the mutual interest of all the States
will be better secured and promoted, and that the legislature of this State
will then be justified in ratifying the same.
' APPENDIX. 497
Aer or NEw JERSEY ACCEPTING THE CoNFEDERATIoN, PAssED
NovEMBEn 19, 1778.
An Act to authorize and empower the Delegates of the State of New Jersey
in Congress to subscribe and ratify the Articles of Confederation and
Perpetual Union between the several States.
Whereas, Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode Island and Provi-
dence Plantations, Connecticut, New York, New Jersey, Pennsylvania,
Delaware‘, Maryland, Virginia, North Carolina, South Carolina, and
Georgia, signed in the Congress of the said States by the Honorable
Henry Laurens, Esquire, their President, have been laid before the legis-
lature ‘of this State, to be ratified by the same, if approved: And whereas,
notwithstanding the terms of the said Articles of Confederation and Per-
petual Union are considered as in divers respects unequal and disadvan-
tageous to this State, and the objections to several of the said articles,
lately stated and sent to the general Congress aforesaid on the part of
this State, are still viewed ‘as just and reasonable, and sundry of them
as of the most essential moment to the welfare and happiness of the good
people thereof: Yet, under the full ‘conviction of the present necessity 01
acceding to the confederacy proposed, and that every separate and de-
tached' State interest ought to be postponed to the general good of the
' Union: And moreover, in firm reliance thatthe candor and justice of the
several States will, in due time, remove as far as possible the inequality
which now subsists : —-
SE01‘. 1. Be it enacted by the Council and General Assembly of this
State, and it is hereby enacted by the authority of the same, That the
Honorable John Witherspoon, Abraham Clark, Nathaniel Scudder, and
Elias Boudinot, Esquires,\delegates representing this State in the Con-
gress of the United States, or any one or more of them, be and they are
hereby authorized, empowered, and directed, on behalf of this State, to
subscribe and ratify the said Articles of Confederation and Perpetual‘
_ Union between the States aforesaid.
SEcT. 2. And be it further enacted by the authority aforesaid, That
the said Articles of Confederation and Perpetual Union, so as aforesaid
‘ subscribed and ratified, shall thenceforth become conclusive as to this
State, and obligatory-thereon.
von. 1. A 63
498 THE FEDERAL CoNsTITUTIoN.
DELAWARE.
RgsoLurIoNs PASSED BY THE COUNCIL OF THE STATE OF: DELA-
wARE, JANUARY 23, 1779, REsrECTINc THE ARTICLES OF CON-
FEDERATION AND PERPETUAL UNION, AND coNcURRED IN BY
THE HoUsE OF AssEMBLY, JANUARY 28, 1779, PREVIOUS TO
THEIR rAssINeA LAw To EMrowER THEIR DELEeATEs To
SIGN AND RATIFY THE SAID ARTICLES 0F CONFEEERATION
AND PERPETUAL UNION. '
Resolved, That the paper laid before Congress by the .dele
gaté from Delaware, and read, be filed; provided, that it shall
never be considered as admitting any claim\ by the same set up
or intended to be set up.
The paper is as follows, viz. :—
IN THE COUNCIL, Saturday, January 23, 1779, P. M.
The Council, having resumed the consideration of the committee’s
reportpn the Articles of Confederation and Perpetual Union, &c., came
to the following resolutions therein :—
Resolved, That this State think it necessary for the peace and safety
of the States to be included in the Union, that a moderate extent of limits
should be assigned for such of those States as claim to the Mississippi or
South Sea; and that the United States in Congress assembled should
and ought to have the power of fixing their western limits.
Resolved also, That this State consider themselves justly entitled to a
right, in common with the members of the Union, to that extensive tract
of country which lies to the westward of the frontiers of the United States,
the property of which was not vested in, or granted to, individuals at the
commencement of the present war : That the same hath been, or may be,
gained from the king of Great Britain, or the native Indians, by the
blood and treasure of all, and ought therefore to be a common estate, to
be granted out on terms beneficial to the United States.
Resolved also, That the courts of law established within this State are
competent for the purpose of determining all-controversies concerning the
private right of soil claimed within the same; and they now, and at all
times hereafter, ought to have cognizance of all such controversies: That
> the indeterminate provision, in the ninth article of the Confederation, for
deciding upon controversies that may arise about some of those private
‘I’
APPENDIX. 499
rights of soil, tends to take away such cogpizance, and is contrary to the
declaration of rights of this State; and therefore ought to receive an
alteration. .
The Council, then, taking into consideration the strong and earnest
recommendations of Congress forthwith to accede to the present plan of
confederacy, and the probable disadvantages that may attend the further
delaying a ratification thereof, —
Resolved, That, notwithstanding the terms of the Articles of Confed-
eration aforesaid are considered as in divers respects unequal and disad-
vantageous to this State, and the objections in the report of the committee
of this house, and the resolves made thereon, are viewed as just and rea-
sonable, and of great moment to the welfare and happiness of the good
people thereof; yet, under the full conviction of the present necessity of
acceding to the confederacy proposed, and in firm reliance that the candor
and justice of the several States will in due time remove as far as possible
the objectionable parts thereof, the delegates appointed to represent this
State in Congress, or any one or more of them, be authorized, empow-
ered, and directed, on behalf of this State, to subscribe and ratify the
said Articles of Confederation and Perpetual Union between the several
States of New Hampshire, Massachusetts Bay, Rhode Island and Provi-
dence Plantations, Connecticut, New York, New Jersey, Pennsylvania,_
Delaware, Maryland, Virginia, North Carolina, South Carolina, and
Georgia; and that the said articles, when so subscribed and ratified,
shall be obligatory on this State.
Extract from the Minutes.
BENJAMIN VINING, Clerk oft/re Council.
Sent for concurrence.
IN HoUsE 0F ASSEMBLY, Thursday, January 28, 1779.
The foregoing resolutions being read three times, and considered, are
concurred in.
NICHQLAS VAN DYKE, Speaker.
THURSDAY, FEBRUARY 16, 1779.
MR. M’KEAN, a delegate for Delaware, laid before Congress the
following instrument, empowering the delegates of that State, or
any of them, to ratify and sign the Articles of Confederation.
His Excellency Cesar Rodney, Esquire, President, Captain-General, and
Commander-in-Chief of the Delaware State, to all to whom these Pres-
ents shall come, -- Greeting.
500 THE FEDERAL CONSTITUTION.
Know ye, That, among the records remaining in the rolls oflice in the
Delaware State, there is a certain instrument of writing, purporting to
be an’ act of the General Assembly of the said State, which said act is
contained in the words and tenor here following, to wit :
IN THE YEAR 1779.
An Act to authorize and empower the Delegates of the Delaware State to
subscribe and ratify the Articles of Confederation and Perpetual Unim
between the several States.
Whereas Articles of Confederation and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode Island and Provi-
dence Plantations, Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina, South Carolina, and
v Georgia, signed in the general Congress of the said States by the Hon-
orable Henry Laurens, Esquire, their then President, have been laid
before the legislature of this State, to be ratified by the same, if ap-
- proved :' And whereas, notwithstanding the terms of the Articles of Con-
federation and Perpetual Union are considered as in divers respects un-
equal and disadvantageous to this State; and the objections stated on the
part of this State are viewed as just and reasonable, and of great moment
- to the welfare and happiness of the good people thereof; yet, under the
full conviction of ‘the present necessity of acceding to the present con-
federacy proposed, and that the interest of particular States ought to be
postponed to the general good of the Union; and moreover, in firm reli-
ance that the candor and justice of the several States will in due time
remove as far as possible the objectionable parts thereof:
Be it enacted by the General Assembly of Delaware, and it is hereby
enacted by the authority of the same, That the Honorable John Dickin
son, Nicholas Van Dyke, and Thomas M’Kean, Esquires, delegates ap-
pointed to represent this State in Congress, or any one or more of them,
be, and they hereby are, authorized, empowered, and directed, on behall
of this State, to subscribe and ratify the said Articles of Confederation
and Perpetual Union between the several States aforesaid.
And be it further enacted by the authority aforesaid, That the said
Articles of Confederation and Perpetual Union, so ‘as aforesaid subscribed
and ratified, shall thenceforth become obligatory on this State.
Signed by order of the House of Assembly.
, NICHOLAS VAN DYKE, Speaker.
Signed by order of the Council. . .
THOMAS CoLLms, Speaker.
Passed at Dover, February 1, 1779.
APPENDIX. 501
All which, by the tenor of these presents, I have caused to be exem-
plified. '
In testimony whereof, the great seal of the Delaware State is hereunto
aflixed, at Dover, the sixth- day of February, in the year of our Lord one
thousand seven hundred and seventy-nine, and in the third year of the
Independence of the United States of America.
CEsAn RODNEY.
By his Excéllency’s command.
JAMEs BOOTH, Secretary.

MARYLAND.
FRIDAY, MAY 21, 1779.
THE delegates of Maryland informed Congress that they have
received instructions respecting the Articles of Confederation,
which they .are directed to lay before Congress, and have entered
on their Journals. The instructions, being read, are as fol-
lows:—
Instructions of the General Assembly of Maryland, to George Plater,
William Paca, William Carmichael, John Henry, James Forbes, ana
Daniel of St. Thomas Jenifer, Esquires.
/
GENTLEMEN, --
Having conferred upon you a trust of the highest nature, it is evident
we place great confidence in your integrity, abilities, and zeal to promote
the general welfare of the United States, and the particular interest of
this State, where the latter is not incompatible with the former; but to
add greater weight to your proceedings in Congress, and take away all
suspicion that the opinions you there deliver and the votes you give
may be the mere opinions of individuals, and not resulting from your
knowledge of the sense and deliberate judgment of the State you repre-
sent, we think it our duty to instruct as followeth on the subject of the
Confederation, — a subject in which, unfortunately, a supposed difference
502 THE FEDERAL CONSTITUTION.
of interest has produced an almost equal division of sentiments among
the several States composing the Union. We say a supposed difference
of interests; for if local attachments and prejudices, and the avarice and
ambition of individuals, would give way to the dictates of a sound policy,
founded on the principles of justice, (and no other policy but what is
founded on those immutable principles deserves to be called sound,) we
flatter ourselves this apparent diversity of interests would soon vanish,
and all the States would confederate on terms mutually ddvantageous to
all; for they would then perceive that no other confederation than one
so formed can be lasting. Although the pressure of immediate calami-
ties, the dread of their continuance from the appearance of disunion, and
some other peculiar circumstances, may have induced some States to
accede to the present Confederation, contrary to their own interests and
judgments, it requires no great share of foresight to predict, that, when
those causes cease to operate, the States which have thus acceded to the
Confederation will consider it as no longer binding, and will eagerly
embrace the first occasion of asserting their just rights, and securing
their independence. Is it possible that those States who are ambitiously
grasping at territories to which, in our judgment, they have not the least
shadow of exclusive right, will use with greater moderation the increase
of wealth and power derived from those territories, when acquired, than
what they have displayed in their endeavors to acquire them’! We think
not. We are convinced the same spirit which hath prompted them to
insist on a claim so extravagant, so repugnant to every principle of jus-
tice, so incompatible with the general welfare of all the States, will
urge them on to add oppression to injustice.’ If they should not be in-
cited by a superiority of wealth and strength to oppress by open force
their less wealthy and less powerful neighbors, yet depopulation, and
consequently the impoverishment, of those States will necessarily follow,
which, by an unfair construction of the Confederation, may be stripped
of a common interest, and the common benefits derivable from the West-
ern country. Suppose, for instance, Virginia indisputably possessed ot
the extensive and fertile country to which she has set up a claim, what
would be the probable consequences to Maryland of such an undisturbed
and undisputed possession? They cannot escape the least discerning.
Virginia, by selling on the most moderate terms a small proportion 01
the lands in question, would draw into her treasury vast sums of money;
and in proportion to the sums arising from such sales would be enabled
to lessen her taxes. Lands comparatively cheap, and taxes compara-
tively low, with the lands and taxes of an adjacent State, would quickly
drain the State thus disadvantageously circumstanced of its most useful
APPENDIX. 503
inhabitants; its wealth and its consequence in the scale (if the confed-
erated States would sink of course. A claim so injurious to more than
one half, if not to the whole, of the United States, ought to be supported
by the clearest evidence of the right. Yet what evidences of that right
have been produced’! What arguments alleged in support either of the
evidences or the right? None that we have heard of deserving a serious
refutation.
It has been said, that some of the delegates of a neighboring State
have declared their opinion of the practicability of governing the exten-
sive dominion claimed by that State. Hence also the necessity was
admitted of dividing its territory, and erecting a new State under the
auspices and direction of the elder, from whom no doubt it would receive
its form of government, to whom it would .be bound by some alliance or
confederacy, and by whose councils it would be influenced. Such a
measure, if ever attempted, would certainly be opposed by the other
States as inconsistent with the letter and spirit of the proposed Confed—
eration. Should it take place by establishing a sub-confederacy, impe-
rium in imperio, the ‘State possessed of this extensive dominion must
then either submit to all the inconveniences of an overgrown and un-
wieldy government, or suffer the authority of Congress to interpose at
a future time, and to lop off a part of its territory, to be erected into a
new and free State, and admitted into a confederation on such conditions
as shall be settled by nine States. If it is necessary for the happiness
and tranquillity of a State thus overgrown, that Congress should here-
after interfere and divide its territory, why is the claim to that territory
now made, and so pertinaciously insisted on’! We can suggest to our-
selves but two motives; either the declaration of relinquishing at some
future period a proportion of_the country now contended for was made
to lull suspicion asleep, and to cover the designs of a secret ambition, or,
if the thought was seriously entertained, the lands are now claimed to
reap an immediate profit from the sale. We are convinced, policy and
justice require, [that a country unsettled at the commencement of this
war, claimed by the Britisli'dcrown, and ceded to it by the treaty of Paris,
if wrested from the, common .enemy by the blood and treasure of the
thirteen States, should be considered as a common property, subject to
be parcelled out by Congress into free, convenient, and independent gov-
ernments, in such manner and at such times as the wisdom of that assem-
bly shall hereafter direct.
Thus convinced, we should betray the trust reposed in us by our con-
stituents, were we to authorize you to ratify, on their behalf, the Con-
federation, unless it be further explained. 'We have coolly and dispas-
504 _ THE FEDERAL CONsTITUTION.,
sionately considered the subject; we have‘weighed probable inconven-
iences and hardships against 'the sacrifice of just and essential rights;
and do instruct you not to agree to the Confederation, unless an article or
articles be'added thereto in conformity with our declaration. Should we
- succeed in obtainingsuch article or articles, then you are hereby fully
empowered to accede to the Confederation.
That these our sentiments respecting our Confederation may be more
publicly known, and more explicitly and concisely declared‘, we have
drawn up the annexed declaration, which we instruct you to lay before
Congress, to have it printed, and to deliver to each of the delegates of
‘the other States in Congress assembled copies thereof, signed by your-
selves, or by such of you as ‘may be present at the time of delivery; to
the intent and purpose that the copies aforesaid may be communicated to
our brethren of the ‘United States, and the contents of the said declara
tion taken into their serious and candid consideration.
Also we desire and instruct you to move, at a proper time, that these
instructions be read to Congress by their Secretary, and entered on the
Journals of Congress.
We have spoken with freedom, as became freemen; and we sincerely
wish that these our representations may make such an impression on that
assembly as to induce them to make such addition to the Articles of
Confederation as may bring about a permanent union.
A true copy from the proceeding of December 15, 1778.
Test, T. DuoKETT, C. H. D.

IN CONGRESS.
SATURDAY, APRIL 1, 1780. r.
THE committee to whom was referred the act of the legislature
of the State of New York, entitled, “ An Act to facilitate the
completion of the Articles of Confederation and Perpetual Union
among the United States 'of America,” report,--— '
That, having met on the business, but not being able to ,agree
to any resolution thereon, desire to be discharged; which act is
in the words following, viz. : —
APPENDIX. 505
An Act to jacilitate the Completion of the Articles of Confederation and
Perpetual Union among the United States of America.
Whereas nothing under Divine Providence can more effectually con
tribute to the tranquillity and safety of the United States of America
than a federal alliance, on such liberal principles as will give satisfaction
to its respective members: And whereas the Articles of Confederation
and Perpetual Union recommended by the honorable the Congress of the
United States of America have not proved acceptable to all the States, it
having been conceived that a portion of the waste and uncultivated terri-
tory, within the limits or claim of certain States, ought to be appropri
ated as a common fund for the expenses of the war: And the people of
the State of New York being on all occasions disposed to manifest their
regard for their sister States, and their earnest desire to promote the
general interest and security; and more especially to accelerate the fed-
eral ‘alliance, by removing, as far as it depends upon them, the before-
mentioned impediment to its final accomplishment :
Be it therefore enacted, by the people of the State of New York, rep
resented in Senate and Assembly, and it is hereby enacted by the author
ity of the same, That it shall and may be lawful to and for the delegates
of this State, in the honorable Congress of the United States of America,
or the major part of such of them as shall be assembled in Congress, and
they the said delegates, or a major part of them, so assembled, are hereby
fully authorized and empowered, for and on behalf of this State, and by
proper and authentic acts or instruments, to limit and restrict the bounda-
ries of this State, in the western parts thereof, by such line or lines, and
in such manner and forjn, as they shall judge to be expedient, either
with respect to the jurisdiction as well as the right or preemption of soil,
or reserving the jurisdiction in part, or in the whole, over the lands
which may be ceded, or relinquished, with respect only to the right or
preemption of the soil.
And be it further enacted by the authority aforesaid, That the territo-
ry which may be ceded or relinquished by virtue of this act, either with
respect to the jurisdiction as well as the right or preemption of soil, or
the right or preemption of soil only, shall be and enure for the use and
benefit of such of the United States as shall become members of the fed-
eral alliance of the said States, and for no other use or purpose whatever.
And be it further enacted by the authority aforesaid, That all the
lands to be ceded and relinquished by virtue of this act, for the benefit
of the United States, with respect to property, but which shall neverthe-
less remain under the jurisdiction of this State, shall be disposed of and
von. 1. 64
506 THE FEDERAL CONSTITUTION. \
appropriated in such manner only as the Congress of the said States
shall direct; and that a warrant under the authority of Congress for sur-
veying and laying out any part thereof shall entitle the party in whose
favor it shall issue to cause the same to be surveyed and laid out and re-
turned according to the directions of such warrant; and thereupon letters
patent under the great seal of this State shall pass to the grantee for the
estate specified in the said warrant; for which no other fee or reward
shall he demanded or received than such as shall be allowed by Congress.
Provided always, and be it further enacted by the authority aforesaid,
That the trust reposed by virtue of this act shall not be executed by the
delegates of this State, unless at least three of the said delegates shall
be present in Congress.
State of New York, ss.
I do hereby certify that the aforegoing is a true copy of the original
act, passed the 19th of February, 1780, and lodged in the Secret‘ary’s
ofiice.
ROBERT HARPUR, D’y Sec’y State.
WEDNESDAY, SEPTEMBER 6, 1780.
CoNGEEss took into consideration the report of the committee
to whom were referred the instructions of the General Assembly
of Maryland to their delegates in Congress respecting the Arti-
cles of Confederation, and the declaratio‘n therein referred to;
the act of the legislature of New York on the same subject;
and the remonstrance of the General Assembly of Virginia,
which report was agreed to, and is in the words following : ——
That, having duly considered the several matters to them submitted,
they conceive it unnecessary to examine into the merits or policy of the
instructions or declaration of the General Assembly of Maryland, or of
the remonstrances of the General Assembly of Virginia, as they involve
questions a discussion of which was declined, on mature consideration,
when the Articles of Confederation were debated; nor, in the opinion of
the committee, can such questions be now revived with any prospect
of conciliation: That it appears more advisable to press upon these
States which can remove the embarrassments respecting the Western
APPENDIX. 507
country a liberal surrender of a portion of their territorial claims, siIice
they cannot be preserved entire without endangering the stability of the
general confederacy; to remind them-how indispensably necessary it is
to establish the Federal Union on a. fixed and permanent basis, and on
principles acceptable to all its respective members; how essential to
public credit and confidence, to the support of our army, to the vigor 01
our councils, and success of our measures, to our tranquillity at home,
our reputation abroad, to our very existence as a free, sovereign, and
independent people; that we are fully persuaded the wisdom of the re-
spective legislatures will lead them to a full and impartial consideration
of a subject so interesting to the United States, and so necessary to the
happy establishment of the Federal Union; that they are confirmed in
these expectations by a view of the before-mentioned act of the legisla-
ture of New York, submitted to their consideration ; that this act is ex-
pressly calculated to accelerate the federal alliance, by removing, as far as
depends on that State, the impediment arising from the Western country,
and for that purpose to yield up a portion of territorial claim for the gen-
eral benefit.
Whereupon,
Resolved, That copies of the several papers referred to the committee
be transmitted, with a copy of the report, to the legislatures of the sev-
eral States; and that it be earnestly recommended to these States who
have claims to the Western country to pass such laws, and give their
delegates in Congress such powers, as may effectually remove the only
obstacle to a final ratification of the Articles of Confederation: and that
the legislature of Maryland be earnestly requested to authorize their dele-
gates in Congress to subscribe the said articles.

MARYLAND.
MONDAY; FEBRUARY 12, 1781.
THE delegates of Maryland laid before Congress a certified
copy of an act of the legislature of that State, which was read as
follows: -- '
508 THE FEDERAL CONSTITUTION.
An Act to empower the Delegates of this State in Congress to subscribe and
ratify the Articles of Confederation.
Whereas it hath been said that the common enemy is encouraged, by
this State not acceding to the Confederation, to hope that the union of
the sister States may be dissolved; and therefore prosecute the war in
expectation of an event so disgraceful to America; and our friends
and illustrious ally are impressed with an idea, that the common cause
would be promoted by our formally acceding to the Confederation : This
General Assembly, conscious that this State hath from the commencement
of the war strenuously exerted herself in the common cause, and fully
satisfied that, if no formal confederation was to take place, it is the fixed
determination of this State to continue her exertions to the utmost, agree-
able to the faith pledged in the union,-from an earnest desire to con-
ciliate the affections of the sister States, to convince all the world of our
unalterable resolution to support the independence of the United States,
and the alliance with his most Christian Majesty; and to destroy for ever
any apprehension of our friends, or hope in our enemies, of this State
being again united to Great Britain :
Be it enacted by the General Assembly of Maryland, That the delegates
of this State in Congress, or any two or three of them, shall be, and are
hereby, empowered and required, on behalf of this State, to subscribe the
Articles of Confederation and Perpetual Union between the States of
New Hampshire, Massachusetts Bay, Rhode Island and Providence Plan-
tations, Connecticut, New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and .Georgia, signed
in the general Congress of the said States by the Honorable Henry Lau-
rens, Esquire, their then President, and laid before the legislature of this
State to be ratified, if approved; and that the said Articles of Confedera-
tion and Perpetual Union, so as aforesaid subscribed, shall thenceforth be
ratified and become conclusive as to this State, and obligatory thereon.
And it is hereby declared, that, by acceding to the said Confederation,
this State doth not relinquish, or intend to relinquish, any right or inter-
est she bath with the other united or confederated States to the back
country; but claims the same as fully as was done by the legislature of
this State in their declaration which stands entered on the journals of
Congress : this State relying on the justice of the several States hereafter,
as to the said claim made by this State.
And it is further declared, That no article in the said Confedera'
tion can or ought to bind this or any other State to guarantee any ex-
elusive claim of any particular State to the soil of the said back lands,
APPENDIX. 509
or' any such claim of jurisdiction over the said lands, or the inhabitants
thereof.
By the House of Delegates, January 30, 1781.
Read and assented to.
By order,
F. GREEN, Clerk.
By the Senate, February 2, 1781.
Read and assented to.
' By order,
he MAOOIIREIN, Clerk.
THOMAS LEE. [L. S.]

I
ARTICLES OF CCNFEDERATION AND
PERPETUAL UNION ~
BETWEEN THE STATES OF NEW HAMPSHIRE, MASSACHUSETTS
BAY, RIIODE ISLAND AND PROVIDENCE PLANTATIoNs, CON-
NECTICUT, NEW YORK, NEW JERSEY, PENNsYLvANIA, DELA-
WARE, MARYLAND, VIRGINIA, NORTH CAROLINA, SOUTH CARO-
LINA, AND GEORGIA.
ART. 1. Thetstyle of this Confederacy shall be “ The United States
of America.”
ART. 2. Each State retains its sovereignty, freedom, and independence,
and every power, jurisdiction, and right which is not by this Confedera-
tion expressly delegated to the United States in Congress assembled.
ART. 3. The said States hereby severally enter into a firm league of
friendship with each other for their common defence, the security of their
liberties, and their mutual and general welfare; binding themselves to
assist each other against all force ofl'ered to or attacks made upon them
on account of religion, sovereignty, trade, or any other pretence what-
ever. .
ART. 4. The better to secure and perpetuate mutual friendship and
intercourse among the people of the difl'erent States in this union, the
free inhabitants of each of these States (paupers, vagabonds, and fugi-
tives from justice excepted) shall be entitled to all privileges and immu
510 THE FEDERAL CONSTITUTION.
nitics of tree citizens in the several States ; and the people of each State
shall have free ingress and regress to and from any other State, and shall
enjoy therein all the privileges of trade and commerce, subject to the same
duties, impositions, and restrictions as the inhabitants thereof respec-
tively, provided that such restriction shall not extend so far as to prevent
the removal of property imported into any State to any other State, of
which the owner is an inhabitant; provided also, that no imposition, du-
ties, or restriction shall be laid by any State on the property of the United
States, or either of them.
If any person guilty of or charged with treason, felony, or other high
misdemeanor in any State, shall flee from justice and be found in any of
the United States, he shall, upon demand of the Governor or executive
power of the State from which he fled, be delivered up and removed to
the State having jurisdiction of his offence.
Full faith and credit shall be given in each of these States to the rec
ords, acts, and judicial proceedings of the courts and magistrates of every
other State.
ART. 5._For the more convenient management of the general interests
of the United States, delegates shall be annually appointed, in such man-
ner as the legislature of each State shall direct, to meet in Congress on
the first Monday in November, in every year, with a power reserved to
each State to recall its delegates, or any of them, at any time within the
year, and to send others in their stead, for the remainder of the year.
No State shall be represented in Congress by less than two nor by
more than seven members; and no person shall be capable of being a
delegate for more than three years in any term of six years; nor shall
any person, being a delegate, be capable of holding any oflice under the
United States, for which he, or any other for his benefit, receives any
salary, fees, or emolument of any kind.
Each State shall maintain its own delegates in any meeting of the
States, and while they act as members of the committee of the States.
In determining questions in the United States in Congress assembled,
each State shall have one vote.‘ _
Freedom of speech and debate in Congress shall not be impeached or
questioned in any court or place out of Congress; and the members of
Congress shall be protected in their persons from arrests and imprison-
ments, during the time of their going to and from and attendance on
Congress, except for treason, felony, or breach of the peace.
ART. 6. No State, without the consent of the United States in Con
gress assembled, shall send any embassy to, or receive any embassy from,
or enter into any conference, agreement, alliance, or treaty with any king,
APPENDIX. 511
prince, or state; nor shall any person holding any office of profit or trust
under the United .States, or any of them, accept of any present, emolu-
ment, oflice, or title of any kind whatever from any king, prince, or foreign
state; nor shall the United States in Congress assembled, or any of them,
grant any title of nobility.
N O two or more States shall enter into any treaty, confederation, or
alliance whatever between them, without the consent of the United States
in Congress assembled, specifying accurately the purposes for which the
same is to be entered into, and how long it shall continue.
N 0 State shall lay any imposts or duties, which may interfere with any
stipulations in treaties entered into by the United States in Congress
assembled, with any king, prince, or state, in pursuance of any treaties
already proposed by Congress to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any State,
except such number only as shall be deemed necessary by the United
States in Congress assembled for the defence of such State or itsttrade;
nor shall any body of forces be kept up by any State, in time of peace,
except such number only as, in the judgment of the United States in
Congress assembled, shall be deemed requisite to garrison the forts
necessary for the defence of such State; but every State shall always
keep up a well-regulated and disciplined militia, sufiiciently armed and
accoutred, and shall provide and have constantly ready for use, in public
stores, a due number of field-pieces and tents, and a proper quantity of
arms, ammunition, and ca p equipage.
N 0 State shall engage in any war without the consent of the United
States in Congress assembled, unless such State be actually invaded by
enemies or shall ,have certain advice of a resolution being formed by some
nation of Indians to invade such State, and the danger is so imminent as
not to admit of a delay till the United States in Congress assembled can
be consulted; nor shall any State grant commission to any ships or ves-
sels of war, nor letters of marque or reprisal, except it be after a decla-
ration of war by the United States in Congress assembled, and then only
against the kingdom or state and the subjects thereof against which war
has been so declared, and under such regulations as shall be established
by the United States in Congress assembled, unless ‘such State be infested
by pirates, in which case vessels of war may be .fitted out for that occasion
and kept so long as the danger shall continue, or until the United States
in Congress assembled shall determine otherwise.
ART. 7. When lan forces are raised by any State for the common
defence, all oflicers of or under the rank of colonel shall be appointed by
the legislatures of each State respectively by whom such forces shall be
I
512 ' THE FEDERAL CONSTITUTION.
raised, or in such manner as such State shall direct; and all vacancies
shall be filled up by the State which first made the appointment.
ART. 8. All charges of war and all other expenses that shall be in-
curred for‘ the common defence or general welfare, and allowed by the
United States in Congress assembled, shall be defrayed out of a common
treasury, which shall be supplied by the several States in proportion to
the value of all land within each State granted to or surveyed for any
person, as such land and the buildings and improvements thereon shall be
estimated, according to such mode as the United States in Congress
assembled shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the
authority and direction of the legislatures of the several States, within the
time agreed upon by the United States in Congress assembled.
ART. 9. The United States in Congress assembled shall have the sole
and exclusive right and power of determining on peace and war, except
in the cases mentioned in the sixth article; of sending and receiving am-
bassadors; entering into treaties and alliances, provided that no treaty of
commerce shall be made, whereby the legislative power of the respective
States shall be restrained from imposing such imposts and duties on
foreigners as their own people are subjected to, or from prohibiting the
exportation or importation of any species of goods or commodities what-
soever; of establishing rules for deciding in all cases what captures on
land or water shall be legal, and in what manner prizes taken by land or
naval forces in the service of the United States shall be divided or appro-
priafed; of granting letters of marque and reprisal in time of peace;
appointing courts for the trial of piracies and felonies committed on the
high seas, and establishing courts for receiving and‘ determining finally
appeals in all cases of captures, provided that no member of Congress
shall be appointed judge of any of the said courts.
The United States in Congress assembled shall also be the last resort
on appeal in all disputes and differences now subsist-ing or that hereafter
may arise between two or more States concerning boundary, jurisdiction,
or any other cause whatever, which authority shall always be exercised
in the manner following: whenever the legislative or executive authority
or lawful agent of any State in controversy with another shall present a
petition to Congress, stating the matter in question and praying for a
hearing, notice thereof shall be given by order of Congress to the legisla-
tive or executive authority of the other State in controversy, and a day
assigned for the appearance of the parties by their lawfiil agents, who
shall then be directed to appoint by joint consent commissioners or judges
to constitute a court for hearing and determining the matter in question;
' .
APPENDIX. 513
but if they cannot agree, Congress shall name three persons out of each
of the United States, and from the list of such persons each party shall
alternately strike out one, the petitioners beginning, until the number
shall be reduced to thirteen; and from that number not less than seven
nor more than nine names, as Congress shall direct, shall, in the presence
of Congress, be drawn out by lot; and the persons whose names shall be
so drawn, or any five of them, shall be commissioners or judges to hear
and finally determine the controversy, so always as a major part of the
judges who shall hear the cause shall agree in the determination : and if
either party shall neglect to attend at the day appointed, without showing
reasons which Congress shall judge suflicient, or, being present, shall
refuse to strike, the Congress shall proceed to nominate three persons out
of each State, and the Secretary of Congress shall strike in behalf of such
party absent or refusing; and the judgment and sentence of the court to
be appointed, in the manner before prescribed, shall be final and conclu-
sive ; and if any of the parties shall refuse to submit to the authority of
such court, or to appear or defend their claim or cause, the court shall
nevertheless proceed to pronounce sentence or judgment, which shall in
like manner be final and decisive, the judgment or sentence and other
proceedings being in either case transmitted to Congress, and lodged
among the acts of Congress, for the security of the parties concerned:
provided,_that every commissioner, before he sits in judgment, shall take
an oath, to be administered by one of the judges of the Supreme or Su-
perior Court of the State where the cause shall be tried, “ well and truly ‘
to hear and determine the matter in question, according to the best of his
judgment, without favor, affection, or hope of reward ”; provided, also,
that no State shall be deprived of territory for the benefit of the United
States.
All controversies concerning the private right of soil, claimed under
different grants of two or more States, whose jurisdictions as they may
respect such lands and the States which passed such grants are adjusted,
the said grants or either of them being at the same time claimed to have
originated antecedent to such settlement of jurisdiction; shall, on the peti-
tion of either party to the Congress of the United States, he finally deter-
mined, as near as may be in the same manner as is before prescribed for de-
ciding disputes respecting territorial jurisdiction bet‘ween difi'erent States.
The United States in Congress assembled shall also have the ‘sole and
exclusive right and power of regulating the alloy and value of coin struck
by their own authority, or by that of the respective States; fixing the
standard of weights and measures throughout the United States; regu-
lating the trade and managing all affairs with the Indians not members of
VOL. I. 65
I
514 THE FEDERAL coNsTITUTIoN
any of the States, provided that the legislative right of any State within
its own limits be not infringed or violated; establishing and regulating
post-oifices from one State to another throughout all the United States,
and exacting such postage on the papers passing through the same as
may be requisite to defray the expenses of the said ofi‘ice; appointing all
oflicers of the naval forces, and commissioning all oflicers whatever in the
service of the United States ; making rules for the government and reg-
ulation of the said land and naval forces, and directing their opera-
tions.
The United States in Congress assembled shall have authority to
appoint a committee to sit in the recess of Congress, to be denominated
“ a Committee of the States,” and to consist of one delegate from each
State, and to appoint such other committees and civil oflicers as may be
necessary for managing the general affairs of the United States, under
their direction; to appoint one of their number to preside, provided that
no person be allowed to serve in the oflice of President more than one
year in any term of three years; to ascertain the necessary sums of
money to be raised for the service of the United States, and to appropri-
ate and apply the same for defraying the public expenses; to borrow
money or emit bills on the credit of the United States, transmitting
every half-year to the respective States an account of the sums of money
so borrowed or emitted; to build and equip a navy; to agree upon the
number of land forces, and to make requisitions from each State for its
quota, in proportion to the number of white inhabitants in such State;
which requisition shall be binding, and thereupon the legislature of each
State shall appoint the regimental ofiicers, raise the men, and clothe,
arm, and equip them in a soldierlike manner, at the expense of the
United States; and the oflicers and men to be clothed, armed, and
equipped shall march to the place appointed, and within the time agreed
on, by the United States in Congress assembled : but if the United States
in Congress assembled shall, on consideration of circumstances, judge
proper that any State should not raise men or should raise a smaller
number than its quota, and that any other State should raise a greater
number of men than the quota thereof, such extra number shall be raised,
ofiicered, clothed, armed, and equipped in the same manner as the quota
of such State, unless the legislature of such State shall judge that such
extra number cannot be safely spared out of the same, in which case they
shall raise, oflicer, clothe, arm, and equip as many of such extra number
as they judge can be safely spared. And the oflicers and men so clothed,
armed, and equipped shall march to the place appointed, and within the
time agreed on, by the United States in Congress assembled.
APPENDIX. 515
The United States in Congress assembled shall never engage in a war
nor grant letters of marque and reprisal in time of peace, nor enter into
any treaties or alliances, nor coin money nor regulate the value thereof,
nor ascertain the sums and expenses necessary for the defence and welfare
of the United States, or any of them; nor emit bills, nor borrow money
on the credit of the United States, nor appropriate money, nor agree
upon the number of vessels of war to be built or purchased, or the number
of land or sea forces to be raised, nor appoint a commander-in-chief of
the army or navy, unless nine States assent to the same; nor shall a
question on any other point, except for adjourning from day to day, be
determined, unless by the votes of a majority of the United States in
Congress assembled.
The Congress of the United States shall have power to adjourn to any
time within the year, and to any place within the United States, so that
no period of adjournment be for a longer duration than the space of six
months, and shall publish the journal of their proceedings monthly, ex-
cept such parts thereof relating to treaties, alliances, or military opera-
tions, as in their judgment require secrecy; and the yeas and nays of the
delegates of each State on any question shall be entered on the journal,
when it is desired by any delegate; and the delegates of a State, or any
of them, at his or their request, shall be furnished with a transcript of
the said journal, except such parts as are above excepted, to lay before
the legislatures of the several States.
ART. 10. The Committee of the States, or any nine of them, shall be
authorized to execute, in the recess of Congress, such of the powers of
Congress as the United States in Congress assembled, by the consent of
nine States, shall, from time to time, think expedient to vest them with;
provided that no power be delegated to the said Committee, for the exer-
cise of which, by the Articles of Confederation, the voice of nine States
in the Congress of the United States assembled is requisite.
ART. 11. Canada, acceding to this Confederation, and joining in the
measures of the United States, shall be admitted into and entitled to all
the advantages of this Union; but no other Colony shall be admitted into
the same unless such admission he agreed to by nine States.
ART. 12. All bills of credit emitted, moneys borrowed, and debts con-
tracted by or under the authority of Congress, before the assembling oi
the United States, in pursuance of the present Confederation, shall be
deemed and considered as a charge against the United States, for pay-
ment and satisfaction whereof the said United States and the public faith
are hereby solemnly pledged.
ART. 13. Every State shall abide by the determinations of the United
516 THE FEDERAL ooNsTITUTIoN.
States in Congress assembled on all questions which by this Confedera-
tion are submitted to them. And the Articles of this Confederation shall
be inviolably observed by every State, and the Union shall be perpetual;
nor shall any alteration at any time hereafter be made in any of them;
unless such alteration be agreed to in a Congress of the United States,
and be afterwards confirmed by the legislatures of every State.
These Articles shall be proposed to the legislatures of all the United
States, to be considered, and if approved of by them, they are advised to
authorize their delegates to ratify the same in the Congress of the United
States; which being done, the same shall become conclusive.

MEMBERS OF THE CONVENTION WHICH
FORMED THE CONSTITUTION?‘
Those with numbers before their names signed the Constitution.
Those without numbers attended, but did not sign. The dates denote the
first day of their attendance. Those in italics never attended.
NEW HAMPSHIRE.
1. John Langdon, 23 July. 2. Nicholas Gilman, 23 July.
John Pickering. Benjamin West.
MASSACHUSETTS.
Francis Dana. 4. Rufus King, 25 May.
Elbridge Gerry, 29 May. Caleb Strong, 28 May.
3. Nathaniel Gorham, 28 May.
RHODE ISLAND. [No appointment]
CONNECTICUT.
. William S. Johnson, 2 June. Oliver Ellsworth. 29 May.
6. Roger Sherman, 30 May.
Ur
* This Table is taken from the 12th volume of Mr. Sparks’s edition of
Washington’s Writings, p. 426.
APPENDIX. 517
NEw YORK.
Robert Yates, 25 May. John Lansing, 2 June.
7. Alexander Hamilton, 25 May.
NEW JERSEY.
8. William Livingston, 5 June. Jolm Neilson.
9. David Brearley, 25 May. Abraham. Clark.
William C. Houston, 25 May. 11. Jonathan Dayton, 21 June.
'—
o
28.
. Benjamin Franklin, 28 May.
. William Patterson, 25 May.
PENNSYLVANIA. -
16. Thomas Fitzsimons, 25 May.
. Thomas Mifilin, 28 May. 17. Jared Ingersoll, 28 May.
Robert Morris, 25 May. 18. James Wilson, 25 May.
. George Clymer, 28 May. 19. Gouverneur Morris, 25 May.
DELAWARE. \
. George Read, 25 May. 23. Richard Bassett, 25 May
. Gunning Bedford, Jr. 28 May. 24. Jacob Broom, 25 May.
. John Dickinson, 28 May.
MARYLAND.
. James McHenry, 29 May. 27. Daniel Carroll, 9 July.
. Daniel of St. Thomas John Francis Mercer, 6 Aug.
Jenifer, 2 June. Luther Martin, 9 J une
VIRGINIA.
George Washington, 25 May. George Mason, 25 May.
Patrick Henry (declined). George Wythe, 25 May.
Edmund Randolph, 25 May. James McClurg (in the
John Blair, 25 May. room of P. Henry) 25 May.
James Madison, Jr. 25 May.
29
30
34.
35.
. William Blount (in the
NORTH CAROLINA.
Richard Caswell (resigned). l/Vz'llie Jones (declined).
Alexander Martin, 25 May. 32. Richard D. Spaight, 25 May
William R. Davie, 25 May. 33. Hugh Williamson (in the
room of W. Jones), 25 May.
room of R. Caswell) 20 June.
SOUTH CAROLINA.
John Rutledge, 25 May. 36. Charles Pinckney,
Charles C. Pinckney, 25 May. 37. Pierce Butler,
25 May.
25 May
528 THE FEDERAL CONSTITUTION.
GEoRerA.
38. William Few, 25 May. George Walton.
39. Abraham Baldwin, 11 June. William Houstoun, 1 June
William Pierce 31 Maw. Nathaniel Pendleton
END OF VOL. I.



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